V v. Minister for Immigration & Multicultural Affairs

MIGRATION - Refugee application - Review of decision of Refugee Review Tribunal - Claim of fear of persecution on account of political opinion - Appellant claimed to have fled Russia after assault on friend engaged with him in investigating political corruption - Whether attitude of resistance to corruption may constitute political opinion - Whether Tribunal failed to give reasons and findings on material questions of fact.

Guo Wei Rong v Minister for Immigration & Ethnic Affairs (1996) 64 FCR 151 referred to

Minister for Immigration & Ethnic Affairs v Y [1998] FCA 15 May 1998 approved

Migration Act 1958, s430(1)

V v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NG965 of 1998

WILCOX, HILL and WHITLAM JJ

14 APRIL 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG965 OF 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

V Applicant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGES: WILCOX, HILL and WHITLAM JJ

DATE OF ORDER: 14 APRIL 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1.     The appeal be allowed.

2.     The orders made by Moore J on 27 August 1998 be set aside and, in lieu thereof, it be ordered that:

(a)  the decision of the Refugee Review Tribunal of 28 January 1998 be set aside and the application to the Tribunal for review of the decision of the delegate of the Minister dated 9 May 1996 be remitted to the Tribunal for redetermination.

(b)  The respondent, the Minister for Immigration & Multicultural Affairs, pay the costs incurred by the appellant, V in respect of the hearing before Moore J.

3.     The respondent pay any costs incurred by the appellant in connection with the appeal to this Court.

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

NG965 OF 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

V Applicant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGES: WILCOX, HILL and WHITLAM JJ

DATE: 14 APRIL 1999

PLACE: SYDNEY

REASONS FOR JUDGMENT

1. WILCOX J: This is an appeal against a decision of a judge of the Court dismissing with costs an application for review of a decision of the Refugee Review Tribunal. The Tribunal affirmed a decision by a delegate of the respondent, the Minister for Immigration and Multicultural Affairs, to refuse an application for protection visas made by the appellant, V, on behalf of himself, his wife Galina and his son, Konstantin. In order to obtain the protection visas, it was necessary for Mr V to establish he was a refugee within the meaning of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees. Article 1A(2) of the Convention defines a refugee as a person who:

"owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it."

2. The case put to the Tribunal by Mr V was that he had a well-founded fear of being persecuted for reasons of political opinion, the relevant political opinion being his opposition to institutionalised corruption in his homeland, the Russian Federation.

3. The appellant's application for review raised two grounds but only one was pressed by the counsel who appeared for Mr V before the primary judge. That ground was expressed in the following way:

"2. Procedures that were required by the Migration Act 1958 to be observed in connection with the making of the Tribunal decision were not observed in that the Tribunal failed to produce a written statement, in accordance with s.430, setting out its reasons, findings on material questions of fact and referring to the evidence or other material on which its findings were based.

Particulars

A major part of the Applicant's case was that he and a former Army colleague had conducted enquires [sic] into corruption, that his friend had been beaten and left for dead, and that the documents and photographs they had collected had been stolen. As a result the Applicant had fled Russia and feared that the same thing could happen to him if he returned to Russia .... The Tribunal erred by failing to made [sic] any findings about what happened to the colleague or whether corrupt elements in Russia might target the Applicant because of his opposition to and attempt to expose corruption.

Another issue raised by the Applicant was whether he would be punished by the Russian Army for being away from his address for longer than permitted, not reporting his moves to the Army and for having applied for refugee status in Australia .... This issue was referred to by the Tribunal in passing ... but the Tribunal erred by ignoring or overlooking it in its Findings and Reasons."

4. At the hearing before us, Mr V appeared in person. He did not press the second matter noted in the particulars. Consequently, the only question for our determination is whether the primary judge was correct to reject the appellant's case in respect of the matter raised by the first particular. As his Honour observed, the point is a narrow one. However, in order to determine it, I must refer at some length to the appellant's claims and the Tribunal's findings.

The claimed facts

5. The decision of the Tribunal contains a comprehensive summary of the appellant's life history, as stated by him. Mr V was born in 1961. In the early 1980s he served as a conscript in the Soviet Army for about two years. He was thereafter placed on a reserve list, but never recalled to duty. However, he served for about two years in the militia, within the Ministry of Internal Affairs, where he had responsibility for criminals on parole. He left the service in 1985 and then had a variety of jobs before setting up his own company in 1991. In his reasons for decision, the Tribunal member set out Mr V's account of what followed:

"Mr V said that the company sub-contracted to the authorities to do a variety of work associated with building projects such as landscaping and concreting. The company carried out this work in a number of regions in the Russian Far east. In addition, Mr V said, the company had dealings in China and he was examining opportunities for further expansion in the United States and Australia. His Chinese venture involved exporting trucks and vehicles to China and importing foodstuffs. He said that he had contracts worth more than $US 2 million with his Chinese partners but that he had decided, before his difficulties arose, to shut down that part of his operation.

Mr V said that when he first started his business in 1991 he had agreed to employ a former KGB officer, who may or may not have still been active with the organisation, to provide protection for the company, although he appeared on the payroll as a normal employee, receiving $US 800 per month, and with some duties to do with the contracts obtained by the company. Mr V said that the former KGB officer had proved to be effective in using his KGB contacts on an occasion when Mr V had been the subject of an extortion attempt. Mr V said that he had known the man was KGB because he used to see him at KGB headquarters when Mr V was an officer in the Militia.

Mr V said that he had visited Australia in 1994 looking for business opportunities. He said that he had been impressed with the country and had visited a Migration Office in Sydney and had paid an application fee to begin applying for business migration.

On his return to Russia after that visit Mr V said that he was asked to call on a senior official with the City Council. This official proposed an illegal business deal to Mr V. He suggested that Mr V`s company be used to move $US 500,000 to the account of the `Unity' group. Mr V would receive a commission of 5 per cent. He said that he had refused the offer and a subsequent higher offer of ten per cent. The official had proceeded to threaten Mr V that his business would be ruined unless he cooperated. If he cooperated though, as well as receiving the commission, he would come under the patronage of the Governor of the region. Mr V again refused. Mr V said that he refused because it was against his political principles to be involved in corruption. He said that his refusal was a political act and the subsequent persecution was because of that expression of his political opinion.

Mr V said that the same evening, which was also the day his wedding was registered, the former KGB officer came to his apartment and demanded a considerable increase in salary. Mr V refused to agree these terms and the former KGB officer indicated that he would cease to work for him. Mr V said that two days later he was bundled into a car by two men. He was driven to a location and told that he would be given protection by these men if he paid $US 20,000 a month. The men also produced copies of his contracts with Chinese companies and told him that he should resume his trade. Mr V said that he told the men that he could not afford to pay. Within a week, he said, all of his Government contracts had been cancelled. Mr V said that he understood that his company still existed, but perhaps under a different name. He said that he thought that the former KGB officer was running it.

Mr V said that at about this time he had met by chance a former Army colleague. He said that when they began exchanging details of their lives since the Army he discovered that his colleague was also the victim of mafia and official interference. Mr V said that he and his colleague decided to begin their own investigation into corruption in the region. His friend obtained information about money laundering through contacts in the local tax office and banks. These showed that a number of companies had laundered $US 15 million to the `Unity' Group. His friend had also obtained photographs of the Governor at a dacha in the company of prostitutes. Mr V said that he had also recorded some discussions with former Militia colleagues and that these had shown the depth of corruption and the inability of the police to do anything about it. Mr V said that at this point his friend suddenly disappeared. He spoke to neighbours who said that they had heard noises through the night. Mr V said that in 1996, after he had come to Australia, he had re-established contact with his colleague through an address in the United Arab Emirates. His colleague had told him that on the night in question he had been beaten up, stabbed and left for dead. All the documents to do with their joint investigation had been stolen. His colleague had panicked and fled the region. Mr V said that although he had not known what had happened to his colleague, he too had realised that he had to leave. He had a visa for Australia and used it.

The Tribunal asked Mr V why he had not gone to the authorities. He said that his conversations with his former militia colleagues had shown him the futility of this. In Russia today there is a fusion between corrupt officials, the mafia and the KGB and its successor organisations. He could never get protection from the authorities. Nor was it possible, he said, to move elsewhere in Russia. One needed a permit to live and this was issued by the Militia. His whereabouts would be known immediately.

The Tribunal asked Mr V what actual harm he feared if he were to return to Russia. Mr V said that this was difficult to quantify. An awful thing had happened to his colleague. Would he be next? He said that he feared for his life and for the lives of his family. Nothing had changed in Russia since he had left. The same people were still in charge. The same links between the corrupt officials, the Mafia and the organs of the State existed. There was no way he could go back and live in safety. He said that he had come to Australia as a refugee. He had never asked the Australian authorities for material assistance. He did ask for Australia's protection as he would be persecuted for reasons of his political opinion if he returned to Russia."

6. In order to put this account into context, it is desirable to add that Mr V lived at Khabarovsk, north of Vladivostok in far eastern Russia. Khabarovsk is close to the Chinese border. Second, Mr V told the Tribunal member that his interview with the senior official of the City Council took place on 21 December 1994, only eight days after his return to Russia from his Australian visit. He named this person to the Tribunal and described him as an unelected person who was "right-hand man" to the governor of the region, whom he named. As the Tribunal noted, Mr V's claim was that he lost his business within a week of rebuffing the official at that interview. This must have been about the end of December 1994. It was after that, although apparently only shortly afterwards, that Mr V met his ex-Army friend and they commenced an investigation into corruption in the region. According to his evidence to the Tribunal, it was Mr V himself (not his friend) who obtained the information about the laundering of $15 million through Unity; the suggestion was that the government (apparently the city or regional government) was paying money to various companies who would then deposit it (presumably less commission) in a Unity bank account from which, Mr V said, it was "going overseas or somewhere". It was the friend who took the photographs of the governor in the company of prostitutes, according to Mr V. He himself contacted some former militia colleagues, from whom he learned about the detention and torture of two local journalists who had attempted to expose local corruption. He also learned of deliberate disregard of protocols in order to procure federal funding for the area. This course of investigation continued until the end of April 1995, when the friend suddenly disappeared and Mr V fled Russia with his wife and son.

The Tribunal's findings

7. Under the heading "Findings and Reasons", the Tribunal said:

"The Tribunal accepts that Mr V was the subject of an approach from a corrupt official and that as a result of his refusal to cooperate his business suffered. The Tribunal also accepts that he had employed a former KGB officer to ensure that his business was protected and that following the officer's departure he was approached by a Mafia group which offered protection against a large monthly fee. Both claims are consistent with the published evidence, cited above, which indicated that as much as 40 to 50 per cent of the Russian economy is controlled by the Mafia and that the Mafia had links with corrupt Russian officials. The evidence indicated that while corrupt officials remain in power this situation is unlikely to change despite Government announcements of measures to combat corruption and organised crime. The Tribunal accepts that Mr V was the victim of crime. It finds that the crime was perpetrated against him, as similar crimes have been against many others, because of the desire of the perpetrators to extract money, because of a perception that he had money.

Mr V has claimed that he is being persecuted for reasons of his political opinion because the payment of protection money was against his political principles. However, as set out in Ram v MIEA (1995) 57 FCR 565 AT 568 (per Burchett J, O'Loughlin and RD Nicholson JJ agreeing) `Persecution involves the infliction of harm, but it implies something more: an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm.' Thus what is at issue is the motivation of those who inflict harm, not the victim. In this case, the Tribunal does not accept that there was any political motivation for the harm inflicted on Mr V. The acts committed against him were criminal acts, motivated by a desire to obtain money and directed against him because he was seen to have money. The acts were not part of a course of systematic conduct directed against him for any Convention reason. While the Tribunal accepts that Mr V fears returning to Russia, and sympathises with his predicament, it does not find that there is a real chance that he faces persecution for a Convention related reason should he return to Russia.

No specific Convention claims were made by or on behalf of Mrs Galina Kondratenko or Master Konstantin Kondratenko. Therefore there is no basis on which the Tribunal can be satisfied that they are refugees within the meaning of the Refugees Convention."

The primary judge's decision

8. In his reasons for judgment, the primary judge set out the Tribunal's findings and reasons and the terms of s430(1) of the Migration Act 1958, which are as follows:

"430(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

(a) sets out the decision of the Tribunal on the review; and

(b) sets out the reasons for the decision; and

(c) sets out the findings on any material questions of fact; and

(d) refers to the evidence or any other material on which the findings of fact were based."

The primary judge also noted the limits on this Court's power of review, stemming from s476 of the Act, and the approach that ought to be taken to the construction of the Tribunal's reasons for decision. In relation to that last matter, his Honour quoted what was said by Kirby J in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291. The primary judge went on:

"The approach adopted by the Tribunal and manifest in the section headed `Findings and Reasons' was to accept that the applicant had sought to deal with and expose corruption in the way he had contended. The Tribunal did so as part of a process of ascertaining whether the applicant held a well founded fear of persecution for reasons of his political opinion if he was to return to his country of nationality, which was the basis of the applicant's claim under the Refugee Convention."

9. After referring to authorities as to the meaning of persecution and the nature of the Tribunal's obligations under s430 of the Act, the primary judge said:

"The Tribunal did not address, at least at any length, the issue of whether there was a basis for concluding that the applicant had a well founded fear of persecution if he was to return to his country of nationality. However the highlighted sentence in the passage quoted earlier in these reasons deals obliquely with that point. It is relatively clear that the Tribunal's reasoning proceeded on an acceptance that the applicant had been exposed to threats of harm before leaving and would be exposed to threats of harm and possible harm if he was to return. Against that accepted state of affairs, the Tribunal addressed the question of whether the reason why the applicant would be exposed to that threat of harm and possible harm was for a reason identified in the Convention. That is, whether the threat of harm or possible harm to the applicant was for reasons of his political opinion. It concluded that it was not. Approached this way, it may have been unnecessary for the Tribunal to consider the evidence concerning the experience of the applicant's friend. That evidence related to harm inflicted on another from which it could be inferred that the applicant was at risk of similar harm. If harm to the applicant was accepted by the Tribunal in the way just discussed, it may have been unnecessary to make any express findings about the circumstances of the friend and from those findings determine what inferences might be drawn about the position of the applicant if he was to return to his country of nationality.

The issue raised by the applicant in these proceedings is whether it was necessary for the Tribunal to have made findings concerning the circumstances of the applicant's friend. That, in turn, depended on whether findings on that question constituted `material questions of fact': as to what are material facts though in different statutory context see Sola Optical Australia Pty Ltd v Mills (163) CLR 628. I accept the circumstances of the friend were a material factual issue raised by the applicant. However they were not, in my opinion, material facts if the approach adopted by the Tribunal rendered them immaterial. That is, immaterial in the sense that the ultimate conclusion reached by the Tribunal did not depend on what finding it made in relation to the circumstances of the friend. The critical question, in my opinion, is whether the obligation imposed by s430 to set out findings on any material questions of fact imposed an obligation to set out findings on questions of fact that were not critical to the conclusion reached by the Tribunal even though, if the reasoning of the Tribunal had differed from that adopted, they might have been or would have been material."

The "highlighted sentence" to which his Honour referred was the last sentence in the penultimate paragraph of the decision, quoted at para 7 above, in which the Tribunal "accepts that Mr V fears returning to Russia, and sympathises with his predicament."

The submissions on appeal

10. The appellant put a number of submissions to us, many of which are not matters for our determination. However, one submission falls clearly within the notified ground of review: Mr V's complaint that the Tribunal failed to make a finding about his claims of political persecution. Mr V accepts the statement in Ram that persecution implies an element of attitude on the part of those who persecute that leads to the infliction of harm. He does not challenge the Tribunal's statement that the issue is "the motivation of those who inflict harm, not the victim". But he says the motivation of those who inflict harm was at the heart of the case he put before the Tribunal. He detailed criminal acts against him (attempted extortion and kidnapping), but he says this happened months - apparently about four months - before he fled Russia. In the meantime, he had been involved with his friend in obtaining information about institutionalised corruption in the region. He fled Russia in fear for his safety, and that of his family, because of what had happened to his friend, as a result of the friend's involvement in that investigation. Mr V argues that the action taken by him and his friend was designed to challenge systemic corruption; it was therefore political action and the persecution (of the friend) was persecution on account of the friend's political opinion and activities. He shares that political opinion, as he has demonstrated by his activities. He fears he will be persecuted for it if returned to Russia.

11. Counsel for the Minister, Ms Rhonda Henderson, argues the reason for Mr V's flight was a question of fact for the Tribunal to determine. The Tribunal found the acts committed against Mr V were criminal acts, motivated by a desire to obtain money; although he was subjected to persecution, this was not for a Convention reason.

12. Ms Henderson also argues that an attitude of resistance to criminal activity is not "political opinion"; so a person who has such an attitude and fears persecution on that account, does not have a fear of persecution on account of political opinion. It is convenient to deal immediately with this last proposition. If it is correct, that must be the end of Mr V's refugee claim; he claims to fear persecution because of his attitude of resistance to systemic corruption of, and criminal activity by, government officials.

Criminality and political persecution

13. The concept of persecution on account of political opinion, within the meaning of Article 1A(2) of the Convention, was discussed by Beaumont J (with whom Foster J generally agreed) in Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151 at 158-165. Although the High Court of Australia subsequently reversed the Full Court decision (see Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567), none of the High Court Justices criticised Beaumont J's analysis of the term "political opinion".

14. I see no point in reproducing that analysis. However, it is useful to note that Beaumont J approved two comments by Hathaway, The Law of Refugee Status (1991). The first is it will suffice "to rely on evidence of engagement in activities which imply an adverse political opinion, and which would elicit a negative governmental response tantamount to persecution" ((Emphasis added). Second, it is not necessary to show a prominent political profile. Hathaway adopts an extract from a decision of the Immigration Appeal Board:

"`Nowhere in the Convention does it say that to be considered a refugee an applicant must have been prominent in the political life of his country of origin. The crucial test is that certain behaviour or actions on the part of the applicant are or have been perceived by the authorities in power as political opposition ...'"

Citing three decisions of the Federal Court of Appeal (of Canada) as his authority, Hathaway says (at 154):

"Essentially any action which is perceived to be a challenge to governmental authority is therefore appropriately considered to be the expression of a political opinion."

15. Whether opposition to corruption can be considered to be "political" opinion was a matter considered by Davies J in Minister for Immigration & Ethnic Affairs v Y [1998] FCA, 15 May 1998. The case had some factual similarities with the present case. The respondent, Y, was a Brazilian national who, with a friend, had witnessed an incident of police brutality. He reported the incident to the authorities but they seemed uninterested. So he and his friend began their own investigation into the incident and reported to the authorities the names of two of the police officers who had been involved. Shortly afterwards he and his friend were abducted, separated from each other and tortured. His friend was later killed, presumably murdered. The authorities declined to investigate his death. Y, his wife and daughter moved to a neighbouring city because of fear for their safety. Y there received threatening telephone calls, his wife was abducted and raped and his daughter was threatened. Y, his wife and daughter left Brazil and sought asylum in Australia as refugees. The Tribunal reversed a departmental decision to refuse protection visas and Davies J dismissed the Minister's application for judicial review of that decision. His Honour said:

"In the context of the Refugees' Convention, an opinion could be thought to be a political opinion if it were such as to indicate that its holder, the claimant for refugee status, held views which were contrary to the interests of the State, including the authorities of the State. A person may be regarded as an enemy of the State by virtue of holding and propounding views which are contrary to the views of the State or its Government, or which are antithetic to the Government and the instruments which enforce the power of the State, such as the Armed Forces, Security Forces and Police Forces or which express opposition to matters such as the structure of the State or the territory occupied by it and like matters."

16. As I understand Davies J, as a matter of law it is enough that a person holds (or is believed to hold) views antithetic to instruments of government, and is persecuted for that reason. It is not necessary that the person be a member of a political party or other public organisation or that the person's opposition to the instruments of government be a matter of public knowledge. Of course, the higher the person's political profile, the easier it may be to persuade a tribunal of fact that the person has been persecuted on account of political opinion, rather than for some other reason; but that is a matter going to proof of the facts, not a matter of law.

17. The other relevant point about Y is that it contains no suggestion of a dichotomy between criminal activity and persecution on account of political opinion. The abduction and torture of Y and his friend, and the abduction and rape of Y's wife, were undoubtedly serious criminal acts, but nobody suggested this prevented them being categorised as persecution on account of political opinion.

18. I reject the submission that an attitude of resistance to systemic corruption of, and criminality by, government officers cannot fall within the description "political opinion". Whether particular resistance amounts to an attitude having a political dimension, or whether it is simply a product of other causes such as fear of detection, is, of course, a question of fact for determination in the particular case.

Failure to make findings about applicant's claim

19. This brings me to the issue raised by para 2 of Mr V's application for judicial review: did the Tribunal fail to make findings in respect of his claim that he had a fear of persecution on account of his opposition to, and attempts to expose, official corruption? As I have indicated, at the Tribunal's oral hearing, Mr V gave evidence of activities to this effect. The primary judge remarked that the approach of the Tribunal "was to accept that the applicant had sought to deal with and expose corruption in the way he had contended". This would seem to be so, although the Tribunal's acceptance was not clearly spelled out. Did the Tribunal also accept that Mr V fled Russia in fear after his friend disappeared? Did the Tribunal accept that Mr V fears returning to Russia because, as he told the Tribunal, wherever he chose to live, the system of residence permits would easily enable the militia to track him down? If so, did the Tribunal accept this fear was well-founded? If the Tribunal did accept these claims, why do they not disclose a well-founded fear of persecution on account of political opinion; that is, resistance to official corruption? If the Tribunal did not accept these claims, why not?

20. In posing the above questions, I do not, of course, suggest the Tribunal was bound to take any particular view about the facts; the facts were for the Tribunal to determine. However, as these questions go to the heart of the case Mr V put to the Tribunal, they were issues that had to be addressed before the Tribunal could properly find against his claim. The Tribunal was bound to make findings about them one way or the other.

21. The Tribunal's findings and reasons appear in para 7 above. They occupy three paragraphs. The findings set out in the first paragraph are favourable to Mr V's claim, although they do not cover all aspects of it. The second paragraph makes the point that persecution implies an element of motivation for the infliction of harm. This statement is unexceptional but inconsequential; if Mr V's friend was treated in the way he suggested, it may readily be inferred those responsible for that treatment wished to do him harm because of his active opposition to corruption. The paragraph then proceeds: "...the Tribunal does not accept that there was any political motivation for the harm inflicted on Mr V. The acts committed against him were criminal acts, motivated by a desire to obtain money and directed against him because he was seen to have money". The last sentence is true but it misses the point. The acts committed against Mr V (attempted extortion and kidnapping) were certainly criminal acts and motivated by a desire to obtain money, but it was not Mr V's case that he fled Russia because of those acts. His case was that he fled Russia some four months after those acts, and only because of what happened to his friend. The fear he claimed was that, if he returned to Russia, he would be persecuted because of his known opposition to corruption. I emphasise again that I express no view as to whether or not this case should have been factually accepted, but it was the case Mr V put and he was entitled to have the Tribunal's findings about it.

22. The primary judge correctly pointed out it was necessary for the Tribunal to make findings only on material questions of fact. He cited decisions to the effect that this means "the substantial issues upon which the decision turned". His Honour discussed the question whether the "circumstances of the friend" were a material issue. I would not put the matter in that way. Mr V had only hearsay information as to what happened to his friend; anyway the precise detail seems immaterial. What was material was the effect on Mr V, both the immediate effect in causing him to flee Russia (if that was the cause) and the continuing effect that causes him (if it does) to fear returning to Russia. Those questions could not be rendered immaterial by reason of the approach adopted by the Tribunal; they lay at the heart of Mr V's case. Mr V's case could not properly be rejected without first confronting those questions and making findings about them.

Disposition

23. The Tribunal failed to comply with the requirement of s430(1)(c) that it prepare a written statement that sets out its findings on material questions of fact. The primary judge ought therefore to have set aside the Tribunal's decision and remitted the matter to the Tribunal for redetermination. That course not having been taken, this Court should allow the appeal and so order.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated: 14 April 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 965 OF 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

V Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE: WILCOX, HILL AND WHITLAM JJ

DATE: 14 APRIL 1999

PLACE: SYDNEY

REASONS FOR JUDGMENT

24. HILL J: The Appellant, Mr V, appeals against the judgment of a judge of this Court dismissing his application for judicial review against a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister for Immigration and Multicultural Affairs refusing to grant to him a protection visa. In so doing the Tribunal was not satisfied that Mr V was a person to whom Australia had protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (together referred to in these reasons as "the Convention").

25. The sole ground of review upon which Mr V's application was based was that the Tribunal had failed to set out in its reasons a finding of fact which Mr V submitted was material, in accordance with s 430 of the Migration Act 1958 ("the Act"). In particulars supplied in the Application for review Mr V said:

"A major part of the Applicant's case was that he and a former Army colleague had conducted enquiries into corruption, that his friend had been beaten and left for dead, and that the documents and photographs they had collected had been stolen. As a result, the Applicant had fled Russia and feared that the same thing could happen to him if he returned to Russia... The Tribunal erred by failing to make any findings about what happened to the colleague or whether corrupt elements in Russia might target the Applicant because of his opposition to and attempt to expose corruption."

26. It is not in dispute that the Tribunal's findings of fact contain no reference to the activities of Mr V and his friend, or what happened to the friend apparently as a result of these activities, although under the heading "Claims and Evidence" the Tribunal sets out, in summary form, the evidence which Mr V had given about the matter. The Tribunal's summary is in the following terms:

"Mr V said that at about this time he had met by chance a former Army colleague. He said that when they began exchanging details of their lives since the Army he discovered that his colleague was also the victim of mafia and official interference. Mr V said that he and his colleague decided to begin their own investigation into corruption in the region. His friend obtained information about money laundering through contacts in the local tax office and banks. These showed that a number of companies had laundered $US 15 million to the `Unity' Group. His friend had also obtained photographs of the Governor at a dacha in the company of prostitutes. Mr V said that he had also recorded some discussions with former Militia colleagues and that these had shown the depth of corruption and the inability of the police to do anything about it. Mr V said that at this point his friend suddenly disappeared. He spoke to neighbours who said that they had heard noises through the night. Mr V said that in 1996, after he had come to Australia, he had re-established contact with his colleague through an address in the United Arab Emirates. His colleague had told him that on the night in question he had been beaten up, stabbed and left for dead. All the documents to do with their joint investigation had been stolen. His colleague had panicked and fled the region. Mr V said that although he had not known what had happened to his colleague, he too had realised that he had to leave. He had a visa for Australia and used it."

27. It was Mr V's case before the Tribunal, (at least in part) that because an awful thing had happened to his colleague he feared for his life and the lives of his family. There was no way he could go back and live in safety having regard to links between the corrupt officials, the Mafia and the organs of the State.

28. Notwithstanding the significance which Mr V placed on this matter it played no part in the next section of the Tribunal's reasons which appears under the heading "Finding and Reasons" and which is set out in full in the reasons of Wilcox J, which I have had the advantage of reading in draft form. I should pause to say that it is not uncommon for administrative Tribunals (the Refugee Review Tribunal is not an exception) to set out in detail evidence which is given by an applicant as if the matters dealt with were "claims" but to make no specific findings about them. So to do raises often the inference that the Tribunal has rejected the evidence. At the least it leads to the conclusion that the Tribunal regarded the evidence, if not unreliable, as at least irrelevant. It is not in dispute that a failure to make a finding of a material question of fact and record that finding in its reasons is a reviewable error within s 430 of the Act. What was in dispute before the learned primary judge was whether the matter involving the friend involved a material fact.

29. The learned primary judge was of the view that it did not. This was so, according to his Honour because the conclusion of the Tribunal did not depend on what finding it made about the circumstances of the friend. His Honour said:

"It is relatively clear that the Tribunal's reasoning proceeded on an acceptance that the applicant had been exposed to threats of harm before leaving and would be exposed to threats of harm and possible harm if he was to return. Against that accepted state of affairs, the Tribunal addressed the question of whether the reason why the applicant would be exposed to that threat of harm and possible harm was for a reason identified in the Convention. That is, whether the threat of harm or possible harm to the applicant was for reasons of his political opinion. It concluded that it was not. Approached this way, it may have been unnecessary for the Tribunal to consider the evidence concerning the experience of the applicant's friend."

30. I accept, as the learned primary Judge also accepted, that the reasons of the Tribunal should not be given too narrow or legalistic an interpretation: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291. Having said this, it is no narrow interpretation of the reasons to say that the Tribunal ignored the significance of the incident with the friend. It spoke in its reasons of the acts committed against Mr V being "criminal acts, motivated by a desire to obtain money and directed against him because he was seen to have money." It was for this reason that the Tribunal concluded that these acts were not directed against him for a Convention reason. What happened to the friend, if Mr V's evidence be accepted, (and on the face of it there is no reason why it should not be accepted), as a result of a joint venture with Mr V was clearly not motivated by a view extracting money from Mr V. It was open for the Tribunal to find, if it accepted Mr V's evidence, that the treatment meted out to the friend was directed at the attempts, on the part of those involved with corruption, to silence those whose activities were directing at exposing it.

31. It was necessary for Mr V to show that he had a fear of persecution, that that fear of persecution rested on a Convention ground and that that fear was well founded. What happened to the friend was clearly enough persecution: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 per Mason CJ at 388-390; per Dawson J at 399-400; per McHugh J at 427,429-431. If Mr V's evidence is accepted, he feared that the same consequences would happen to him. Was it open then for the Tribunal to decide that this fear in the context of what happened to the friend rested on a Convention ground?

32. The exposure of corruption itself is an act, not a belief. However it can be the outward manifestation of a belief. That belief can be political, that is to say a person who is opposed to corruption may be prepared to expose it, even if so to do may bring consequences, although the act may be in disregard of those consequences. If the corruption is itself directed from the highest levels of society or endemic in the political fabric of society such that it either enjoys political protection, or the government of that society is unable to afford protection to those who campaign against it, the risk of persecution can be said to be for reasons of political opinion. Whether that is the case in Russia is a matter for the Tribunal, not for this Court. So too must be the question whether the testimony of Mr V about what happened to the friend is believed as well as the question whether Mr V's fears about his receiving the same treatment as the friend is believed and whether that fear is well founded.

33. It is not necessary in this case to attempt a comprehensive definition of what constitutes "political opinion" within the meaning of the Convention. It clearly is not limited to party politics in the sense that expression is understood in a parliamentary democracy. It is probably narrower that the usage of the word in connection with the science of politics, where it may extend to almost every aspect of society. It suffices here to say that the holding of an opinion inconsistent with that held by the government of a country explicitly by reference to views contained in a political platform or implicitly by reference to acts (which where corruption is involved, either demonstrate that the government itself is corrupt or condones corruption) reflective of an unstated political agenda, will be the holding of a political opinion. With respect, I agree with the view expressed by Davies J in Minister for Immigration & Ethnic Affairs v Y [1998] FCA (unreported, 15 May 1998, No. 515 of 98) that views antithetical to instrumentalities of government such as the Armed Forces, security institutions and the police can constitute political opinions for the purposes of the Convention. Whether they do so will depend upon the facts of the particular case.

34. In my opinion, the appeal should be allowed and the matter remitted to a Tribunal differently constituted to determine again in accordance with law.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated: 14 April 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 965 OF 1998

ON APPEAL FROM A JUDGE OF THE

FEDERAL COURT OF AUSTRALIA

BETWEEN:

V Applicant

AND:

MINISTER FOR IMMIGRATION and MULTICULTURAL AFFAIRS Respondent

JUDGES: WILCOX, HILL and WHITLAM JJ

DATE: 14 APRIL 1999

PLACE: SYDNEY

REASONS FOR JUDGMENT

WHITLAM J:

35. The circumstances giving rise to this appeal and the relevant legislative provisions are set out in Wilcox J's reasons for judgment.

36. The Tribunal summarized, neatly and fairly, Mr V's evidence about his investigation into official corruption. However, unlike the primary judge, I am respectfully unable to discern anywhere in the Tribunal's reasons for decision its acceptance, as a fact, that Mr V "had sought to deal with and expose corruption". (My emphasis.) If such acceptance can be said to be implicit in the way the Tribunal recorded without further comment Mr V's evidence on this aspect of his claim, the Tribunal would, at the very least, have had to consider whether his "investigation" activities, either alone or in combination with the other events, might result in the attribution to Mr V of a political profile with the regional authorities. See Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ at 576. Instead, the Tribunal appears to have considered only whether the extortion by the former KGB officer was politically motivated. If the Tribunal did mean to find that there was no real chance that Mr V would have a political profile as a whistleblower attributed to him, the Tribunal's reasons do not reveal why it reached such a conclusion. In that event, the Tribunal would have failed in this respect to comply with the requirements of s 430(1) of the Migration Act 1958 ("the Act"): Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 per Sackville J at 413-416. On the other hand, if the Tribunal gave no consideration at all to Mr V's "investigation" activities as part of the totality of his circumstances that might give rise to a real chance of persecution for reason of political opinion, its decision would involve an error of law under s 476(1)(e) of the Act.

37. The grounds of Mr V's amended application to the Court included error of law under s 476(1)(e) but, somewhat curiously, his counsel expressly abandoned that ground at the hearing before the primary judge. However, in respect of the surviving ground in paragraph 2 of the application, the particulars include the statement: "The Tribunal erred by failing to make any findings about what happened to the colleague or whether corrupt elements in Russia might target the applicant because of his opposition to and attempt to expose corruption." (My emphasis.)

38. The upshot is that I think that the flaws in the Tribunal's decision were raised in the court below, although not as clearly as they might have been. That being the case, as I have already indicated, in my opinion, the Tribunal either failed to deal with the question whether Mr V had an actual or imputed political profile on account of his "investigation" activities (which seems most likely) or, if it did deal with that question, failed to give any reasons for what must be taken to be its adverse conclusion on that preliminary question. Accordingly, Mr V's appeal should be allowed and his application for a protection visa referred to the Tribunal for further consideration.

39. It will be seen that, whilst I agree with the orders proposed by Wilcox J for disposing of this appeal, my reasons are based on the way in which the Tribunal dealt with the preliminary question whether Mr V had, or might have, a political profile on account of his "investigation" activities. A person who publicly campaigns against official corruption in a country, where such corruption is endemic and apparently tolerated by the government authorities, may well be thought to evince a "political opinion" within the meaning of that phrase in the Convention definition.

40. In Minister for Immigration and Multicultural Affairs v Y (unreported, 15 May 1998) Davies J held that, within the context of the Convention, the Tribunal made no legal error in finding that an asylum claimant's stance against police officers' criminal activity was effectively the expression of a "political opinion" against a pervasive aspect of the Brazilian state. That was a very different case to this one. There the asylum claimant's friend, who was killed, was an investigative reporter by occupation. I do not think that the present case, at least on the facts found to date by the Tribunal, provides a convenient vehicle to explore in the abstract the meaning of "political opinion" in the Convention definition of refugee. Even in cases of official corruption, merely reporting crime to the authorities would not normally suggest a "political opinion", nor would the exchanging of tales of woe and plotting of revenge by victims of the same type of crime. In the present case it will be for the Tribunal to assess the effect of Mr V's investigation, bearing in mind all his various activities and the events concerning his friend. The Tribunal would, however, do well to bear in mind that, for the purposes of the Convention definition, "political opinion" may be shown by repeated conduct which is never (or rarely) converted into articulate political protest of the kind familiar to Australian society: Guo per Kirby J at 598.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated: 14 April 1999

Applicant appeared in person:

Counsel for the Respondent: R Henderson

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 12 March 1999