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Nefiodova v Minister for Immigration & Multicultural Affairs [2000] FCA 179

Publisher Australia: Federal Court
Publication Date 28 February 2000
Citation / Document Symbol FCA 179
Cite as Nefiodova v Minister for Immigration & Multicultural Affairs [2000] FCA 179 , FCA 179, Australia: Federal Court, 28 February 2000, available at: http://www.refworld.org/docid/3ae6b76018.html [accessed 18 September 2014]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

MIGRATION - refugees - appeal from the RRT decision to refuse to grant protection visa - credibility - distinction between a particular fact, an ultimate fact in issue and a conclusion - finding that evidence is fabricated is not a particular fact - whether decision based upon existence of particular facts which did not exist - whether RRT failed to make a finding on a material question of fact - where matter first raised at hearing, which should ordinarily have been raised on an earlier occasion, it may legitimately be relevant to credibility - whether applicant had a well-founded fear of persecution for reason of political opinion - imputed political belief is only relevant where actual belief is absent

Migration Act 1958 (Cth) - ss 36(2), 65(1), 415(1), 425, 430, 430(1)(c), 476(1)(a), 476(1)(g), 476(4), 476(4)(a), 476(4)(b).

Pat Tai Choi v Minister for Immigration & Multicultural Affairs [1998] FCA 1556 applied

Yilan v Minister for Immigration & Multicultural Affairs [1999] FCA 854 cited

Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 cited

Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 cited

Kopalapillai v Minister for Immigration & Multicultural Affairs (unreported, Full Federal Court of Australia, 8 September 1998) cited

Chen v Minister for Immigration & Multicultural Affairs [1999] FCA 34 applied

Guden v Minister for Immigration & Multicultural Affairs [1999] FCA 908 applied

Vichlenkova v Minister for Immigration & Multicultural Affairs [1999] FCA 1338 cited

Fernando v Minister for Immigration & Multicultural Affairs [1999] FCA 962 applied

T v Minister for Immigration & Multicultural Affairs [1999] FCA 878 applied

Ngo Quang Thuat v Minister for Immigration & Multicultural Affairs [1998] FCA 1489 cited

Arudselvan v Minister for Immigration & Multicultural Affairs [1999] FCA 622 cited

Curragh Mining Ltd v Daniel (1992) 34 FCR 212 applied

Voitenko v Minister for Immigration & Multicultural Affairs [1999] FCA 428 cited

Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 cited

YHELENA NEFIODOVA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1055 OF 1999

HELY J

28 FEBRUARY 2000

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1055 OF 1999

BETWEEN:

YHELENA NEFIODOVA APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE: HELY J

DATE OF ORDER: 28 FEBRUARY 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1.  The application is dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1055 OF 1999

BETWEEN:

YHELENA NEFIODOVA APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE: HELY J

DATE: 28 FEBRUARY 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of Russia who last arrived in Australia in July 1998, travelling on a passport other than her own. On 28 April 1999 the applicant was detained as a prohibited non-citizen. On that date she made application for a protection visa. The applicant claimed that if she were to return to Russia her life would be in danger because she had refused to collaborate with the Federal Security Services ("FSB") whose activities and methods contradict her political principles. The FSB is the successor to the KGB.

2. The applicant was employed as a blackjack croupier at a casino in Vladivostok. Both the casino director and her immediate superior, the casino manager, were reputedly former members of the now defunct KGB. In September 1995 the applicant was raped and otherwise illtreated by the casino manager's bodyguards. The applicant was pregnant at the time of this sexual assault, and she lost her baby whilst being taken to hospital.

3. Soon after returning to work, the applicant was again sexually assaulted by the same bodyguards. This time she reported the matter to the police. The police sexually assaulted her, and warned her not to slander good people such as the casino manager's bodyguards.

RRT's decision

4. The applicant's claims, as I have so far recounted them, were accepted by the Refugee Review Tribunal ("RRT"), but those claims would not of themselves found a fear of persecution for a Convention reason. The applicant did not suggest otherwise. Her claim to refugee status was based on later events to which I now turn.

5. The applicant claimed that on her return to work in mid to late October 1995, she was approached by two unknown men who produced FSB identification, and who pressed her to act as a sexual lure for persons on whom they were spying. The applicant said that she could not establish for certain that these men were FSB officers, as it was dark when they showed her their identification.

6. The applicant claims that although it was against her political principles to co-operate with FSB because of its lawless methods, she agreed to the request put to her by the two agents, because she feared that harm would befall her if she were to refuse. Thereafter the applicant engaged in the seduction of a man identified by the FSB agents, but after one evening she could not stand to continue with the arrangement that she had made with the FSB officers. She fled to Moscow. Whilst there she received a telephone call from the casino manager instructing her to return to Vladivostok under threat that her parents would be killed if she disobeyed.

7. The applicant stayed in Moscow at the home of a woman called Marina, whose passport she used to get out of Russia. At another point in her evidence the applicant introduced a new claim that she moved out of Marina's place to stay with one of Marina's girlfriends. In December 1995 the applicant left Russia for Thailand. In 1995-1997 she lived in Thailand and Singapore. Between July 1997 and April 1998 she lived in Australia. Between April 1998 and July 1998 she lived in Thailand, and as earlier noted, came to Australia for the second time in July 1998.

8. The applicant claims to have learnt in early 1998 that Marina had been stabbed to death. At one point in her evidence the applicant said that Marina was reported to have been killed in Moscow; at another point she was reported to have been killed during a visit to Vladivostok. The applicant believed that the FSB, or cronies of the two agents had killed Marina because Marina had helped the applicant to evade them. RRT was not persuaded that there was any substance in this speculation, particularly having regard to the lapse of time between the two events.

9. Although RRT accepted the applicant's evidence as to the sexual assaults that she suffered at the hands of the casino manager's bodyguards, and at the hands of the police from whom she sought assistance, RRT did not accept the applicant's evidence in relation to the undertaking of an assignment at the request of agents of FSB. RRT concluded that the applicant's claimed reasons for leaving Russia, and for staying away, are "a far fetched concoction, and utterly unreliable". RRT said that it reached this conclusion with confidence.

10. RRT made the following findings:

"Considering the Applicant's explanation as to what motivated her to go back to the work at the casino after coming out of hospital, being that her corrupt boss had two nights off, and her knowing that the police were in cahoots with him, the Tribunal is not satisfied that the Applicant decided to back to her career at the casino at all; her claimed reasons indicate at best that she had only a short-term (two-night) plan to work back there, and that she was probably already planning to leave Vladivostok straight after those two nights, which is what she claims she eventually did.

The Tribunal understands that the Applicant would have to have been back working at the casino for the rest of her story (about the FSB assignment) to have taken place, but that story is itself full of seemingly outlandish elements, or undermined by inconsistencies in important details: the notion of the Applicant identifying "?" correctly not only the first time but on the very first night after she was assigned to do so; the fact that the mission went off immediately and without a hitch; the claim about "?" taking her home to his place clashing with the claim about the recording being made at her place. Adding this to the clashing claims about Marina's significance in all this, the Tribunal concludes that the Applicant's claimed reasons for leaving Russia, and for staying away, are a far-fetched concoction, and utterly unreliable."

11. Thus the applicant's claim to refugee status was rejected because RRT concluded that the applicant's account of events upon her return to work in October 1995 lacked credibility. That conclusion was supported, in RRT's view, by the delay in making application for a protection visa. The application was not made until after the applicant had been detained by DIMA, some nine months after her arrival in Australia.

12. Although confident that its conclusions were correct, RRT proceeded to assess the applicant's claim upon the assumption that her account of events upon her return to work in October 1995 was the truth. RRT was prepared to accept in principle that the expression or perceived expression of opposition to institutionalised corruption can in certain circumstances constitute a "political opinion" for the purposes of the Convention. However:

"The Tribunal can find no reason to assume, or any evidence to support the assumption that the Applicant's claimed single act of fleeing Vladivostok in the circumstances she claims, would have been taken or portrayed by her adversaries as signifying an opinion regarding institutionalised corruption in Russia, let alone in the context of her history as a worker in the Mafia-run milieu of the gambling industry."

Thus even if RRT had accepted the applicant's version of events, it would not have been satisfied that she faced a real chance of persecution in Russia for reasons of political opinion.

Credibility findings - s 476(1)(g); s 476(4)

13. The amended application asserts that there was no evidence or other material to justify RRT's decision, and that in a number of particularised respects, RRT based its findings as to the applicant's lack of credibility on "facts" that did not exist.

14. Section 476(1)(g) is to be applied to RRT's decision that it was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol: Migration Act 1958 (Cth), ss 36(2), 65(1) and 415(1) ("the Act"). Section 476(4) is a gateway which an applicant must pass before it is permissible for the Court to hold that ground (g) of s 476(1) is established: Pat Tai Choi v Minister for Immigration & Multicultural Affairs [1998] FCA 1556 per Lindgren J. It is in the nature of an additional hurdle to the making out of the s 476(1)(g) ground.

15. As was noted by the Full Court in Yilan v Minister for Immigration & Multicultural Affairs [1999] FCA 854 [59], there is or may be a constructional question whether the "no evidence" ground in s 476(1)(g) can apply to a finding that a particular event did not happen. That may be particularly so when RRT was not required to have rebutting evidence before it could lawfully find that the applicant's assertions are not made out to its satisfaction: Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347; Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437, 451. Nor is RRT required to hold a "positive state of disbelief" before making an adverse credibility assessment: Kopalapillai v Minister for Immigration & Multicultural Affairs (unreported, Full Federal Court of Australia, 8 September 1998).

16. However, the Minister did not submit that the "no evidence" ground could not have application in circumstances such as the present. It is therefore neither necessary to pursue the constructional question, nor is it appropriate that I should do so in the absence of argument on the issue.

17. The applicant makes ten attacks on the credibility findings of RRT. In some cases, the attack is founded on the contention that RRT based its adverse findings on credit on statements which it claims the applicant made during the course of her application for a visa, but which the applicant either did not make or did not make in the terms attributed to her by RRT. In other cases the attack is founded on the contention that RRT based its adverse finding on credit on supposed inconsistencies in the applicant's evidence which did not exist. It will be necessary to return to the detail of the attacks which the applicant makes.

18. A "particular fact" is to be distinguished from the ultimate fact in issue, or a conclusion based upon a series of particular facts, although some of those particular facts may qualify under s 476(4)(b): Chen v Minister for Immigration & Multicultural Affairs [1999] FCA 34. A conclusion that the applicant fabricated his or her evidence or parts of it does not fall within s 476(4)(a) or (b). It is not a particular fact within par (b): Guden v Minister for Immigration & Multicultural Affairs [1999] FCA 908; Vichlenkova v Minister for Immigration & Multicultural Affairs [1999] FCA 1338 [25]. But that leaves open the question as to whether one or more of the basic facts on which the conclusion as to credibility is based can qualify as a "particular fact" in terms of s 476(4)(b). Further, in Fernando v Minister for Immigration & Multicultural Affairs [1999] FCA 962 Heerey J observed that observations or comments made by RRT as to two versions of an account which it thought were in conflict was not the kind of "fact the non-existence of which is given special importance by s 476(4)(b)".

19. In T v Minister for Immigration & Multicultural Affairs [1999] FCA 878 Moore J was prepared to accept, following the decision of O'Connor J in Ngo Quang Thuat v Minister for Immigration & Multicultural Affairs [1998] FCA 1489, that s 476(4)(b) was not confined in its application to primary facts, but extended to facts which are only relevant to credit.

20. At par 45 his Honour said:

"Further, a fact may be relevant only to the credit of the applicant. An example of such a situation arose in Ngo Quang Thuat v Minister for Immigration & Multicultural Affairs [1998] FCA 1489 in which the Tribunal found that an applicant for a protection visa had not told a Departmental officer that he had attempted to escape from custody when in prison in his country of nationality. The applicant later told the Tribunal he had escaped from custody. The Tribunal relied on the fact that the applicant had failed to tell the Departmental officer of this event to reach an adverse conclusion about the applicant's credit. In fact, the applicant had told the Departmental officer of this event. The applicant demonstrated to the satisfaction of O'Connor J that this and another fact were facts the Tribunal based its decision on and were facts that did not exist."

Although in the particular circumstances of that case his Honour found that there was material apart from any non-existent facts that justified RRT forming an adverse opinion of the applicant's credit and rejecting the applicant's account.

21. Counsel for the Minister submitted that there was no material disconformity between statements attributed to the applicant by RRT, and what she said upon that topic. It was also submitted that RRT did not base its decision on the matters of which the applicant complains. Finally, it was submitted on behalf of the Minister that in the case of many of the grounds, the matter under challenge was not a "particular fact"; rather it was in the nature of a conclusion, observation or comment by RRT in relation to matters which RRT perceived to be in conflict. Reliance was placed upon Fernando.

22. No submission was put that the notion of "particular fact" in s 476(4)(b) was confined to primary facts, in the sense referred to by Moore J in T. No reference was made to that decision, let alone criticism of it. Counsel for the Minister accepted that if a decision is based on a particular fact for which there is no evidence, including a fact going only to credit, and the fact does not exist, then the decision is flawed: cf Arudselvan v Minister for Immigration & Multicultural Affairs [1999] FCA 622 [56].

23. I propose to consider whether the matters complained of are particular facts which did not exist, and then to consider under a separate heading whether the decision was based upon the existence of particular facts which did not exist. Of course, if RRT's finding that the claim fails even if the applicant's version of events were accepted is sustainable then the application for review would fail in any event.

The ten "facts" which did not exist

Ground 1(a)

24. RRT stated (at RD 280.1):

"... the applicant's evidence strongly indicates that this man [ie Ivan Ivanovich or `?'] was not familiar to her from any previous occasion prior to her briefing" [by the FSB men].

It is contended that this fact did not exist.

25. In fact the applicant's evidence was that she had seen "?" in the casino on a number of occasions prior to her briefing, but thereafter she had only one encounter with him (T p 39). RRT thus misstates the effect of her evidence. From the context, I infer that RRT was contrasting the evidence which it wrongly attributed to the applicant, with the probability that "?" was a person likely to frequent the blackjack table, and thus likely to be familiar to the applicant on sight.

Ground 1(b)

26 RRT stated (at 280.3):

"At the hearing, the Applicant claimed the FSB recorded her late-night conversation with "?" at her home: `my place'".

It is contended that this fact did not exist.

27. The relevant part of the transcript is at pp 14-15 as follows:

"Mem: OK, who were the people that turned you into a prostitute?

Int: They were FSS employees. The thing is that they forced me to work for them and when they came over to my place, they recorded everything on the tape recorder.

Mem: But did you, are you saying you recorded on a small Dictaphone or they recorded?

Int: I recorded the things that happened between me and the government employee.

Mem: OK.

Int: However, when the FSS employees came to my place and they entered together, they recorded, they recorded on the tape my conversation with them."

28. A fair reading of the passage quoted is that the FSB men recorded their conversations with the applicant at her place. It is not a claim that FSB recorded her late night conversation with "?" at the applicant's place.

29. But if there is an issue, it is whether there is any discrepancy in the accounts given by the applicant as to the location of her encounter with "?". At RD 44 the applicant says that the encounter occurred at "?'s" place, after which she returned home. At T p 44 the following appears:

"Int: Yes, they approached me and the next day I had a night shift, and I had to pay particular attention to `?'.

Mem: And he went home with you that night?

Int: Yes."

This exchange is at best equivocal. The reference in the member's question could be either to the applicant's home, or to "?'s" home. My attention was not drawn to any other material in which the applicant later contradicted her original account of the encounter as having occurred at "?'s" place.

30. Accordingly, RRT's assertion (at RD 280.4) that the applicant's two accounts of where the encounter took place are "mutually exclusive", is not borne out by the evidence. Counsel for the Minister accepted that "it is possible that the Tribunal made an error of fact at this stage of its deliberations".

Ground 1(c)

31. RRT stated (at RD 280.2):

"... in ... evidence given at the hearing, she asserted that she encountered [`?'] a number of times in the course of this assignment, ultimately going home with him only once."

That fact is said not to exist.

32. This is not an accurate statement of the applicant's evidence which is as summarised in par 25 above. But it is by no means clear to me that the inaccuracy leads anywhere.

Ground 1(d)

33. The ground is that RRT based its decision on a finding of fact that the applicant's evidence in her written statement as to how the man whom she was to seduce was described to her differed from her evidence at the hearing, and that fact did not exist.

34. RRT stated (at RD 280.6):

"The Applicant's claim in her submission about being given the description of a `tall balding man by the name of `?'' appears different from a claim she gave at the hearing, where she said that the FSB agents gave her nothing more than a physical description of the man she was supposed to seduce, apparently leaving it to her to recognise him just from sight."

35. At RD 44 the applicant says: "... I was given a description of a person who would approach me in [the] casino. He was a tall, balding man by the name of [`?']." At T p 17-18 the following appears:

"Int: They told me they would give me description of people who they wanted to have information on.

...

Mem: Did the FSS only have the description of these people, did they not know who these people were?

...

Int: The thing is I don't know about that because they only gave a description."

36. Whether there is a difference between the claim as submitted and the evidence given at the hearing depends upon whether the extract from the claim quoted at par 35 above should be construed as asserting that at the briefing the applicant was given a description of a person who she later learned to be "?". The statement is equivocal as to whether the name was given to her at the briefing or whether she discovered it later.

37. However, RRT's observation that there is an apparent difference between the two versions is simply its opinion which no doubt reflects the construction which RRT placed on the claims as submitted. That opinion may be right or wrong. But consistently with Fernando, Chen and Guden it cannot be a particular fact capable of being proven not to exist, as it is conclusory in nature.

Ground 1(e)

38. The ground is that RRT based its decision on a finding of fact that there was a material inconsistency as between her claims that she used a passport issued to her friend Marina to leave Russia, and a statement in her later submission that she used a "fake" passport.

39. RRT states (at RD 282.5):

"... it was claimed that the Applicant departed Russia using a fake passport. This claim does not appear to sit with the Applicant's claim about Marina permitting her own genuine passport to be used by the Applicant."

40. The applicant submits there is no inconsistency because Marina's passport was a "fake passport" in relation to the applicant simply because it was not hers. The respondent submits that the applicant gave two versions which are "unquestionably contradictory".

41. Whether there is only one version of the facts, or an apparent conflict between two versions of the facts, is a matter of judgment or opinion. For the reasons given in par 37 above it is not a particular fact capable of being proven not to exist because it is conclusory in nature.

Ground 1(f)

42. This ground was not pursued by counsel for the applicant in oral submission. That was a sensible decision on his part.

Ground 1(g)

43. The ground is that RRT based its decision on a finding of fact that the applicant's evidence at hearing as to her "adversaries" telephoning her in Thailand was contradictory, and that fact did not exist.

44. At RD 283.6 RRT stated:

"The Applicant claimed at the hearing that the tapping of her parents' telephone led her adversaries to locate her at the restaurant, via the restaurant's telephone number, that they called her there and that they forced her to call her casino supervisor. The Tribunal asked a number of questions about this matter and the Applicant then gave an account of events that appeared to be the reverse of what went before: she said that after she spoke with her parents and learned of their having been harassed, she rang her casino supervisor, evidently laying the blame with him, but did not tell him her number, and that after she called him `they', her adversaries, ... kept ringing her at the restaurant."

45. The transcript at p 51-53 contains the following:

"Mem: Konstantin, yeah, we'll talk about your parents now.

Mem: OK, question is, how long after you arrived in Thailand did you telephone your parents?

Int: A few months later, somewhere in ... now, I received a letter from them ... sorry. I wrote a letter to them, to my parents and then I received a reply letter from them. And their letter contained their phone number, because they had a telephone line connected.

Mem: I have that background. So, you called them. And you claim that that phone call was tapped?

Int: I can't say for sure but ... all the events make me suggest that the telephone was tapped because how otherwise could they find my telephone number and ring me in Pattai? They forced me ring and get in touch with Anatoly Borisovich.

Mem: Who forced you, who? Who called you in Pattai?

Int: I rang Anatoly Borisovich but I didn't tell him my phone number. Somehow they found the telephone number for the restaurant and they kept ringing there.

...

Mem: OK, when you rang Borisovich, what did you discuss?

Int: I pleaded with him not to touch my mother! I swore to him I would come back.

Mem: Now when did you find that he broke your mother's leg?

Int: When I spoke with my mother on the phone.

Mem: After this? After this discussion with Borisovich?

Int: No, before that. I realised that what was going to happen to my parents would be a nightmare and that's why I was forced to call Anatoly Borisovich."

46. RRT does not say in what way the applicant reverses her account during the course of this exchange. As best I can work it out, it is RRT's contention that the shift in position is that the applicant first claimed that her adversaries phoned her at the restaurant before she called Borisovich; then she claimed that it was after she called Borisovich that her adversaries began to call her at the restaurant.

47. The exchange which I have quoted is confused and confusing. It might be thought that considerations of fairness as well as those of good administration would dictate that if this was a matter on which RRT proposed to place substantial reliance in the determination of the applicant's claim to the status of a refugee, the applicant would be confronted with the supposed reversal, and given the opportunity of dealing with it. This, however, did not occur. But the fact that it did not occur does not bear on the issues which I have to decide. It is by no means clear to me that the applicant changed her position in the way for which RRT contends.

48. However, again, RRT is expressing an opinion or making a judgment on the material before it. For the reasons earlier given, the finding under challenge is conclusionary in nature, rather than a particular fact in terms of s 476(4)(b). The mere production of the transcript does not establish that the so called "fact" does not exist. All that it establishes is that opinions might differ as to the correctness of RRT's assessment that the applicant changed her position in the course of her evidence.

Ground 1(h)

49. The ground is that RRT based its decision on a finding of fact that the applicant claimed to have returned to work after her release from hospital (after being raped) because "her boss was off for two nights", and that fact did not exist.

50. At RD 288.6, RRT said that during the hearing it:

"... drew the Applicant's attention to the fact that she simply returned to work ... after being released from hospital. In reply she said she went back to work because her boss was off for two nights."

In the "Findings and Reasons" section of its reasons for decision, at RD 293.8, RRT said:

"The Applicant's explanation about deciding to return to work because her boss had two nights off seems, in the circumstances, absurd."

In the same section, at RD 294.5, RRT said:

"Considering the Applicant's explanation as to what motivated her to go back to the work at the casino after coming out of hospital, being that her corrupt boss had two nights off, and her knowing that the police were in cahoots with him, the Tribunal is not satisfied that the Applicant decided to [go] back to her career at the casino at all; her claimed reasons indicate at best that she had only a short-term (two-night) plan to work back there, and that she was probably already planning to leave Vladivostok straight after those two nights, which is what she claims she eventually did."

51. There is no doubt that in both her statement (RD 44) and in her evidence (T p 17) the applicant stated that Borisovich (her boss) was not at work on the two nights on which she returned to work. However, the applicant never made the claim that the reason she returned to work or her motivation for returning to work was because of her boss. My attention was not directed to anything said by the applicant which is capable of sustaining the claim which RRT imputes to her.

Ground 1(i)

52. The ground is that RRT based its decision on a finding of fact that a part of the applicant's evidence, that the police told her they would not tell the casino manager's bodyguards of her complaint against them if she withdrew her statement, indicated that she trusted the police, and that fact did not exist.

53. At RD 288 RRT said:

"At another stage of the hearing, the Tribunal asked the Applicant why she did not resign from the casino after all the trouble her boss and his bodyguards had given her, but she did not address the question; rather, she described how the police said they would not tell the bodyguards of her attempts to report on them if she withdrew her statement. This reply indicates that she trusted the police and felt it safe to return, but the Tribunal infers from the rest of the Applicant's evidence that she distrusted the police and everyone else."

54. At T p 18 the applicant gave the following evidence:

"Int: When I went to the police and lodged my statement, the police asked me to take the statement back and promised they would not tell. So, basically they ridiculed me, they ripped my statement in front of me, and then they told me because I agreed to take the statement back, they wouldn't tell anything to those bodyguards.

Mem: Well, then why did you not resign just from the Casino? Look for another place to live in Russia?

Int: Because they intimidated me."

55. It is hard to know what RRT meant to convey by the passage which I have emphasised; perhaps only that the police could be trusted not to tell the bodyguards of her complaint even though she did not withdraw her statement, because she went back to work. In any event, for the same reasons earlier given the statement is conclusionary in nature, rather than a particular fact. Further, even if it be the fact that there was no evidence that the applicant trusted the police, the applicant has not established that this fact did not exist.

Ground 1(j)

56. The ground is that RRT based its decision on a finding of fact that the applicant claimed that it was contrary to her political opinion to co-operate with criminals, and that fact did not exist.

57. At RD 288 RRT said:

"... the Applicant said it was against her political opinion to co-operate with criminals; on the other [hand], she was evidently prepared to go back to work for the criminals at the casino, cushioned only by her boss having the first two nights off."

58. A more accurate statement of what the applicant said (see RD 44, 226-227) was that it was against her political beliefs to be involved with the KGB or FSB. My attention was not directed to any statement on the part of the applicant to the effect of that attributed to her by RRT.

Evidence statements attributed to the applicant which she did not make

59. In the result, I find that RRT attributed to the applicant evidence which she did not give in the respects alleged in Grounds 1(a), 1(b), 1(c), 1(h) and 1(j).

Was the decision based on non-existent facts?

60. A decision is based on a particular fact if the fact is critical to the making of the decision: Curragh Mining Ltd v Daniel (1992) 34 FCR 212 at pp 220-221. None of the evidence wrongly attributed to the applicant by RRT formed a link in a chain of reasoning such that the failure of a link brings down the decision which is dependent upon it. The more appropriate metaphor is the strand in a net adopted by Heerey J in Fernando (and see Vichlenkova v Minister for Immigration & Multicultural Affairs (1999) FCA 1338). The net does not necessarily fail because one or more of its constituent strands fails.

61. RRT did not believe the applicant's claims in relation to the FSB assignment. It did not accept that she left Russia, or remained away from Russia, for reasons associated with any assignment by FSB, as there was no such assignment.

62. An assessment of the credibility of an applicant is largely a matter of impression. It is not always easy to detail the factors which produce that impression. The particular reasons which RRT gave for its conclusion that the applicant's claims are a far-fetched concoction and utterly unreliable are to be found in the passages extracted at par 10 above.

63. In RRT's view the applicant's account was full of outlandish elements, particularly the claim that she identified "?" and successfully accomplished her mission at their first meeting on the very first night after her briefing. That finding is not dependant upon the evidence wrongly attributed to the applicant by RRT, and stands independently of it.

64. The inconsistencies which are specifically referred to in the extracted passage at par 10 above are:

whether the assignation took place at the applicant's place, or at "?'s" place;

the clashing claims as to Marina's significance in these events (see pars 7 and 8 above).

The first of those matters is the subject of ground 1(b); the second is not the subject of any ground.

65. RRT does refer in the "findings and reasons" section of its decision to another "fact" which is shown not to exist, namely that the applicant claimed that she decided to return to work because her boss had two nights off. But this does not seem to lead anywhere, and RRT's conclusion, for whatever reason, is that the applicant did not intend to resume her career at the casino, but returned to work in October 1995 with the intention of staying for two nights only.

66. Whilst RRT no doubt had in mind in reaching its conclusion all of the matters referred to in its decision, and not only those the subject of specific mention in the "findings and reasons" section of its report, the applicant has not established that RRT's decision was based upon the evidence wrongly attributed to the applicant by RRT. There was other material, including the delay in seeking a protection visa which could lead, and which did lead, to a lack of satisfaction on the part of RRT that the applicant was a person to whom Australia owed protection obligations.

67. Accordingly, the ground of review based upon RRT's findings as to credibility, is not made out.

Ground 2 Section 430

68. Whether failure to comply with the provisions of s 430 of the Act enlivens the operation of s 476 is an issue on which different Full Courts of this Court have expressed conflicting opinions. The practical course for me to follow is to assume, without deciding that failure to comply with s 430 might enliven the operation of s 476(1)(a) and, on that assumption, consider whether there has been a failure to comply with s 430(1)(c).

69. The ground is that RRT failed to make a finding on a material question of fact, namely whether the applicant was intimidated into returning to her work at the casino following her hospitalisation after being raped.

70. This ground is misconceived. The applicant returned to work twice. On the first occasion she was given a note by her mother which said that the applicant had to go back to work. This is the foundation for the alleged intimidation. But it was the return to work on the second occasion in October 1995 and the events of the following two days, which formed the basis of the applicant's claim to refugee status.

71. There was no connection established between the note, and the return to work on the second occasion. There was no other specific evidence that the applicant was intimidated into returning to work on the second occasion.

72. The ground on which review is sought is not made out.

Ground 3 – s 425

73. In the application for review, this ground is not particularised. In submissions, the applicant's counsel directed attention to the following passage in RRT's reasons (RD 280.6):

"The applicant appeared to attach no significance, in her primary application, or in the 27 April 1999 submission that followed it, to the profession of the man she lured on this first occasion; she described him only physically. However, she claimed at the hearing that this (sic) he was a government employee."

74. The submission is that the quoted passage indicates that RRT failed to appreciate that the purpose of a hearing is to give evidence about issues in the case. The implication from the wording of s 425, in the applicant's submission, is that the applicant is expected to elaborate on claims, and the fact that the applicant does so cannot be relevant to credibility.

75. The submission is misconceived. An observation that a matter was raised for the first time at a hearing may be a legitimate observation if there were earlier occasions on which the matter, if true, would ordinarily have been raised. The making of such an observation does not indicate any lack of understanding on the part of RRT of the purpose of a s 425 hearing.

Ground 4

76. This ground relates to RRT's conclusion that even if the applicant's account of the events following her return to work in October 1995 was truthful, nonetheless the applicant failed to satisfy RRT that she had a well-founded fear of persecution for a Convention reason. As I have found that there was no reviewable error made by RRT in its rejection of the applicant's account of the events following her return to work in October 1995, it is unnecessary for me to deal with this ground. However, as some argument was put in support of the ground, I will deal with it briefly.

77. Two complaints are made. The first relates to a passage in RRT's reasons at p 296:

"Meanwhile, the evident importance of having the Applicant come back to Vladivostok, and not remaining in Moscow, appears to indicate that the person issuing the threat might have considered her to be as much beyond his reach in Moscow as he did when she was in Pattaya."

78. The submission is that RRT has assumed that the applicant can move elsewhere in the Russian Federation than Vladivostok and escape the casino manager. But RRT failed to address the principles of internal relocation in deciding whether the applicant can be expected to move elsewhere.

79. It is true that RRT does not address the issue of relocation, or the circumstances in which an ability to relocate to another part of his/her country of nationality will defeat what would otherwise be a successful claim to refugee status.

80. The context in which the passage quoted appears, indicates that RRT was addressing the issue of whether the applicant had a well-founded fear of persecution for a reason of political opinion. It was not addressing the logically later question whether, assuming an otherwise well-founded fear, the applicant could safely relocate to another part of his/her country of nationality. As RRT was not addressing the issue of relocation, it cannot be criticised for failing to consider the principles of internal relocation as expounded in cases such as Randhawa v Minister for Immigration & Multicultural Affairs (1994) 54 FCR 437.

81. The second complaint is that RRT erred in relation to the interpretation and application of the law as to the words "for reason of ... political opinion" inasmuch as it only examined whether the applicant would be imputed with a political opinion by her claimed persecutors, rather than whether any persecution would be for reason of her actual political opinion.

82. It is now well established that the scope of "political opinion" extends well beyond membership of a political organisation: Voitenko v Minister for Immigration & Multicultural Affairs [1999] FCA 428 indicates that if an applicant holds views antithetic to instruments of government (such as FSB), or has knowledge of institutionalised corruption, that may be sufficient to constitute "political opinion" for the purposes of the Convention.

83. Imputed political belief, as well as actual political belief may be sufficient to found a claim to refugee status:

"Persecution may as equally be constituted by the infliction of harm on the basis of perceived political belief as of actual belief."

Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 416 per Gaudron J.

84. Once the actuality of political opinion is established, issues of imputed or perceived political belief are irrelevant. They are only of importance where the actuality is absent. Once the actuality of political opinion is established the question becomes whether the applicant has a well-founded fear of persecution for reason of her actual political opinion.

85. If it were right to say that RRT focused on the question of whether the applicant would be imputed with a political opinion by her claimed persecutors, rather than the question of whether she had a well-founded fear of persecution by reason of her actual political opinion, then it would commit the legal error of addressing the wrong question.

86. Certainly, at RD 299.9, RRT refers to the applicant's "perceived political opinion". Then at RD 300 it says:

"The Tribunal can find no reason to assume, or any evidence to support the assumption that the Applicant's claimed single act of fleeing Vladivostok in the circumstances she claims, would have been taken or portrayed by her adversaries as signifying an opinion regarding institutionalised corruption in Russia, let alone in the context of her history as a worker in the Mafia-run milieu of the gambling industry."

That is followed by the following delphic observation:

"The Tribunal would also conclude that it were a far-flung ambit on the Applicant's part that her actions in the circumstances claimed would lead to imputations as to a "political opinion" on her part, or that the reaction she claims to apprehend would be for reasons of that opinion."

Part of the problem is that RRT's process of reasoning is not pellucidly clear.

87. The principles to be applied in the construction of reasons given by administrative bodies are well known. Some benevolence is required. On a fair reading of RRT's reasons as a whole it seems to me that RRT is not guilty of having addressed the wrong question. Rather, it was addressing the factual question of whether actual political opinion claimed by the applicant gave rise to a well-founded fear of persecution.

88. RRT's conclusion was that the applicant's actions, including the circumstances of the departure from Vladivostok, would not amount to a disclosure of her actual political opinions, and since they remained entirely private and undisclosed, they did not give rise to a legitimate fear of persecution. This is a factual enquiry.

89. Accordingly, the submission that RRT committed reviewable error because it addressed the wrong question is not made out. Whether it came to a correct conclusion on the factual issue is outside the scope of judicial review, and is not a matter raised by the applicant's submissions.

Conclusion

90. The application is dismissed with costs.

I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated: 28 February 2000

Solicitor for the Applicant:

McDonells Solicitors

Counsel for the Respondent: Ms R Henderson

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 11 February 2000

Date of Judgment: 28 February 2000

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