Bartyzal v Minister for Immigration and Multicultural Affairs

[2000] FCA 1210

FEDERAL COURT OF AUSTRALIA

Bartyzal v Minister for Immigration & Multicultural Affairs [2000] FCA 1210

PAVEL BARTYZAL AND VLADISLAVA BARTYZALOVA BARTYZAL AND PAVLA BARTYZALOVA AND VLADKA BARTYZALOVA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 183 OF 2000

LEHANE J

31 AUGUST 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 183 OF 2000

BETWEEN:

PAVEL BARTYZAL
FIRST APPLICANT

VLADISLAVA BARTYZALOVA BARTYZAL
SECOND APPLICANT

PAVLA BARTYZALOVA
THIRD APPLICANT

VLADKA BARTYZALOVA
FOURTH APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

LEHANE J

DATE OF ORDER:

31 AUGUST 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicants pay the respondent’s costs of the application.

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 183 OF 2000

BETWEEN:

PAVEL BARTYZAL
FIRST APPLICANT

VLADISLAVA BARTYZALOVA BARTYZAL
SECOND APPLICANT

PAVLA BARTYZALOVA
THIRD APPLICANT

VLADKA BARTYZALOVA
FOURTH APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:	LEHANE J
DATE:	31 AUGUST 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicants, Mr Bartyzal, his wife and their two children, seek an order setting aside, under Pt 8 of the Migration Act 1958 (Cth), a decision of the Refugee Review Tribunal. The Tribunal found that the applicants did not satisfy the criterion prescribed by s 36(2) of the Migration Act for a protection visa, namely that the applicant for such a visa be “a non‑citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol”.  Consequently, the Tribunal affirmed the decision of a delegate of the Minister not to grant protection visas to the applicants.

2. The applicants claim that the Tribunal’s decision should be set aside on two grounds: that procedures required by the Migration Act to be observed in connection with the making of the decision were not observed (s 476(1)(a)) and that the decision involved an error of law (s 476(1)(e)).  The applicants have had no legal representation in or, apparently, assistance with, their application to the Court.  Mr Bartyzal appeared before me representing the family; he made submissions through an interpreter.  His twelve year old daughter, Pavla Bartyzalova, also addressed me by leave.  It should be noted (it will be relevant to aspects of the grounds on which the applicants seek review of the Tribunal’s decision) that the applicants have earlier been represented – and, material before me indicates, conscientiously and vigorously represented – by a solicitor employed by the Legal Aid Commission of New South Wales.  That representation extended to proceedings before the Tribunal commenced in July 1998, culminating in a decision (unfavourable to the applicants) dated 7 October 1998; proceedings before the Court in which, in January 1999, that decision was by consent set aside and the matter remitted to the Tribunal for reconsideration; and further proceedings before the Tribunal, differently constituted, leading to the decision of which the applicants now seek judicial review.

   FACTS AND CLAIMS

3. Mr and Mrs Bartyzal and their two children – Pavla, born in 1988, and Vlada, born in 1995 – are citizens of the Czech Republic.  They arrived in Australia in September 1997 with valid passports and visitors’ visas.  They applied for protection visas on 3 November 1997.  Only Mr Bartyzal made specific claims by reference to the Convention definition of “refugee”.  The applications made by his wife and daughters were dependent upon his application, though among the claims made by Mr Bartyzal were allegations about particular harassment (and worse) directed at his wife and elder daughter.

4. The applicants lived in the town of Ceske Budejovice until about a month before they left the Czech Republic to come to Australia.  Mr Bartyzal had his own business of mining and dealing in gem stones.

5. Mr Bartyzal’s claims had their origin in serious ill‑treatment which he says his parents had suffered, and discrimination which he himself suffered, at the hands of the communist regime in the former Czechoslovakia.  In Mr Bartyzal’s view, the communist regime was corrupt as, in large part, were the regimes which followed the fall of communism.  That was particularly so in relation to the Civic Forum, an anti‑communist group which took power in Czechoslovakia immediately following the fall of communism, and one of its offshoots, the Civic Democratic Party (ODS), which led a coalition government of the Czech Republic after the division of Czechoslovakia into the Czech and Slovak Republics on 1 January 1993.  Mr Bartyzal took the view that the ODS was anti‑communist in name only, with former members of the Communist Party occupying senior positions in the government, and that it and the public service – particularly the police force – were riddled with corruption.

6. Mr Bartyzal gave a detailed account of a series of events affecting him and his family which, he claimed, amounted to persecution on account of his political opinions.  The events of which he gave evidence began in November 1992 with an argument he had with Karel Weber, said to be the ODS treasurer for the Ceske Budejovice region.  Mr Bartyzal claimed that, in December 1992, Weber came to his apartment with a senior policeman and demanded a “loan”, making threats of reprisals should the loan not be advanced.  Mr Bartyzal advanced the money but insisted upon a legal document, which was signed (though it may have been deficient in form): it was described as a “business partnership agreement” under which Weber agreed to pay Mr Bartyzal interest at the rate of twenty per cent per annum.  Mr Bartyzal complained to the police but, upon the intervention of the officer who had visited his apartment with Weber, to no avail.  Shortly afterwards, according to Mr Bartyzal, he had a similar argument – about corruption – with another prominent ODS member, Roman Franek.  That resulted in a visit from Franek and a police officer and a demand for a loan, again reinforced by menaces.  Mr Bartyzal finally agreed to make a loan, though of a smaller amount than Franek demanded and again on signature of a formal document (again such a document was signed).  About six months later, another prominent ODS member visited the family’s apartment and demanded money; again Mr Bartyzal insisted upon a formal document containing a promise to repay; again the money was advanced and the document signed.  The final demand of this kind came in September 1993, by a Dr Mach, said to be a prominent lawyer and member of the ODS who had worked for the security forces under the communist regime.  The demand was supported by death threats against Mr Bartyzal and his wife.  Again the sum of money was advanced, on condition that Dr Mach provide a receipt; the receipt was provided.

7. Mr Bartyzal claimed that in July 1993 he spoke to a journalist who worked for a local newspaper.  The journalist wished to write an article exposing corruption within the ODS, but the editor refused to publish it; the journalist had told Mr Bartyzal that ODS thugs had threatened that he would pay a price if he continued to take an interest in ODS corruption.

8. Mr Bartyzal claimed that in November 1993 he was arrested and gaoled on a fabricated charge that he had committed an offence analogous to conspiracy to rob or murder.  He was imprisoned for about eight months, apparently without trial.  During his time in gaol he was charged also with possession of an unlicensed gun.  That charge also, according to Mr Bartyzal, was fabricated.  While he was in gaol another man was put in Mr Bartyzal’s cell; the other man said that he had been offered favourable treatment if he killed Mr Bartyzal and disguised the murder as suicide; and he had intended to kill Mr Bartyzal but had then decided not to.  Ultimately, a lawyer employed by Mr Bartyzal succeeded in having the original charges dismissed.  At his lawyer’s urging, he decided not to fight the charge relating to the unlicensed gun; accordingly he was found guilty of illicit procurement of weapons and received a six month suspended sentence, taking into account the time he had already served.  Subsequently Mr Bartyzal, and his lawyer on his behalf, had applied to the Ministry of Justice for compensation for wrongful imprisonment, but no compensation had been received.

9. Mr Bartyzal claimed that while he was in gaol three men – Roman Lochman, Vaclav Nemec and Miroslav Ira – had come to the apartment and forced his wife to hand over the keys to their car and the safe where his gems were kept; the car and gems were stolen.  His wife reported the matter to the police; under pressure, she retracted the allegations; she was then herself charged with making false allegations (a charge which was ultimately dismissed).  Additionally, a police informant called Zaurel had followed his wife to and from their daughter’s school and elsewhere and had made constant threats.  Shortly before Mr Bartyzal was released from prison, his wife was followed home and raped, apparently by an associate of Zaurel.  Mrs Bartyzal had not told her husband of this until after they arrived in Australia.  As a result of her experiences, Mrs Bartyzal suffered a complete nervous breakdown.

10. According to Mr Bartyzal, the threats and harassment continued after his release from gaol.  In January 1995, Franek telephoned him and invited him to his house for a discussion.  Mr Bartyzal went there; Franek had two others with him, one of whom was Weber; Mr Bartyzal was assaulted and threatened.  In early 1996, he saw the car which had been stolen in a repair yard; he reported the matter to the police but the matter was never satisfactorily dealt with.  He bought another car; shortly afterwards it was fire bombed and destroyed.  Threatening letters were received composed of words cut from various publications (Mr Bartyzal has since received a similar letter in Australia).  Mr Bartyzal again spoke to the journalist; the journalist prepared an article but the editor refused to publish it.  Shortly after that, in mid 1997, Mr Bartyzal was followed, assaulted and seriously injured by two men who, he said, were policemen in plain clothes.  That episode finally convinced Mr Bartyzal that he and his family should leave the Czech Republic: his wife had been urging this course for some time.  Since they had left, relatives had been approached by people asking where they were; the relatives’ telephones had been tapped; and mail sent to the Bartyzal family in Australia had been tampered with.

11. Mr Bartyzal claimed that the ill treatment to which he and his family had been subjected resulted entirely from his open denunciation of corruption within the ODS, and particular members of the party.  He feared that the persecution would resume if they returned to the Czech Republic because he would be unable to restrain himself from renewing his criticism and, if possible, attempting to kill the man who had raped his wife.

12. What I have written above is a brief summary of detailed claims made by Mr Bartyzal in his initial application, in a statutory declaration of twenty-two pages submitted to the Tribunal before the earlier hearing, in lengthy and detailed letters from the legal aid solicitor recording instructions he had received from Mr Bartyzal and in evidence given by Mr Bartyzal at both hearings before the Tribunal.  Additionally, Mr Bartyzal submitted a considerable number of documents, substantially supporting many aspects of his account.  There is no suggestion, in the reasons given by the Tribunal for the decision under review, that any of the documents are not genuine.  Plainly they provided important material to be taken into account by the decision‑maker charged with the responsibility of making findings of fact.  That task is, of course, entrusted by the Migration Act in the first instance to the Minister or the Minister’s delegate and, upon review, to the Tribunal.  It is not a function of the Court.  The Tribunal, its reasons made clear, took into account what Mr Bartyzal and his solicitor had written and said, as well as the documents.  Given the Tribunal’s findings of fact and conclusions, it is not necessary for me to discuss the facts or claims in any further detail.

    TRIBUNAL’S FINDINGS AND REASONS

13. The Tribunal referred, in its reasons, to some apparent discrepancies between details of Mr Bartyzal’s account and what appeared in certain of the documents, each of which it had put to Mr Bartyzal during the hearing.  It referred also to some other matters which, in the light of the picture painted by Mr Bartyzal, it considered surprising.  One was that Mr and Mrs Bartyzal had taken day trips to Austria and Germany twice each year from 1990 to 1997, principally as shopping expeditions.  Another was that Mr Bartyzal, though he had twice approached a journalist in his home town, had not tried to go further afield – for example to newspapers in Prague – to expose what he claimed to be endemic corruption.  The Tribunal referred also to a substantial volume of independent country information, the effect of which the Tribunal summarised as follows:

    “However the evidence available to me is that the Government of the Czech Republic respects freedom of speech and the press.  Individuals are free to speak out on political issues and to criticise the Government and public figures …

    However according to the US State Department there have been no political killings or politically motivated disappearances in the Czech Republic.  There are a number of human rights groups which operate without government restrictions and government officials are generally cooperative and responsive to their views.  … the US State Department has reported that tapping of telephones and interception of mail in the Czech Republic require a court order.  It has said that government authorities respect these prohibitions in practice and that violations are subject to effective legal sanctions … .

    …

    What I consider I can rule out on the basis of the independent evidence is the suggestion that [persecution of Mr Bartyzal and his family by a corrupt clique in their home town] has taken place with the encouragement of the Government of the Czech Republic or that the Government of the Czech Republic is unwilling or unable to protect the Applicant against the persecution that he fears.”

14. As to the general situation in the Czech Republic, the Tribunal preferred the independent material to Mr Bartyzal’s claims.  As the tribunal of fact it was entitled to do so, and to that extent its reasoning is unassailable.

15. The Tribunal accepted “that the Applicant believes that he is telling the truth with regard to what happened to him in the Czech Republic”.  It accepted that he was genuinely fearful of returning to the Czech Republic and genuinely believed that he had been and would be “persecuted by a conspiracy comprising former Communists and state police who he said at the hearing … were still in power and were using more refined methods”.  I have mentioned that the Tribunal referred to some discrepancies and some aspects of the claims which it found surprising.  Nevertheless, Mr Bartyzal was, evidently, substantially consistent in his claims throughout, in significant respects – though there were some puzzling aspects (why, for instance, would extortionists agree to sign loan agreements, even if they were confident that the agreements could not be enforced?) – his claims were supported by documents and the Tribunal did not specifically find that any of his particular allegations was untrue.  The essence of the Tribunal’s reasoning appears in the following passage:

    “While I accept that the Applicant may genuinely believe that the Czech Republic is still in the grip of Communists and state police, I do not accept that his perception of the situation in his homeland accords with reality.  The Applicant’s representative suggested that the US State Department would not know about the Applicant’s case and could not know.  However, while I concede that the US State Department would not know that someone like the Applicant had been the victim of a series of criminal acts in a small town like Ceske Budejovice, the overall picture drawn by the US State Department in its reports is nonetheless relevant to the wider question of whether people are free to speak out against corruption within the ODS (or any other political party in the Czech Republic for that matter), and whether they will be left without legal redress against criminals who extort money from them, fabricate charges against them, rob them, threaten them, rape their wives and assault them, as the Applicant claims has occurred in his case.  It is relevant, in particular, to whether these events would have occurred with the collusion of the police, as the Applicant claims.

    I am obviously unable to rule out the possibility that the ODS in the Applicant’s home town has fallen under the control of a clique of ex‑Communist criminals who have utilised their contacts in the local police and a network of police informers and the like to persecute the Applicant.  What I consider I can rule out on the basis of the independent evidence is the suggestion that this has taken place with the encouragement of the Government of the Czech Republic or that the Government of the Czech Republic is unwilling or unable to protect the Applicant against the persecution that he fears.”

16. Because of its acceptance of the independent material, the Tribunal did not accept Mr Bartyzal’s claims about the tapping of telephones and the interception of mail: the independent evidence was that such activities required a court order and that that requirement was observed in practice.  The Tribunal’s reasons continued:

    “Having regard to the independent evidence available to me I likewise do not accept that the Applicant, as a critic of corruption in the government or the ODS, will be afforded any less a degree of protection from the actions of criminals (even if they are members of the ODS or corrupt law enforcement officers) than any other citizen of the Czech Republic.  Having regard to the evidence regarding the state of human rights in the Czech Republic set out in the US State Department reports, I consider that the Applicant and his wife and family will be provided with a level of protection sufficient to remove a real chance of them being persecuted if they return to the Czech Republic now or in the reasonably foreseeable future.  In particular, I consider that the Applicant’s wife will be afforded a level of protection sufficient to remove a real chance of a repetition of the sexual assault she suffered in June 1994.  As I put to the Applicant in the course of the hearing before me, accepting that the Applicant has been the victim of a fairly small group of corrupt individuals in his home town, it may be necessary for him and his wife and family to move from Ceske Budejovice in order to obtain effective protection.  However I do not consider that it would be unreasonable to expect the Applicant and his wife and family to do this.  They have been prepared to relocate to Australia, where they have no family or friends and where they have been dependent on the charity of strangers.  By contrast they have relatives in other parts of the Czech Republic besides their home town, for example the Applicant’s sister‑in‑law in Prague, and the Applicant has a range of skills.”

17. Finally, the Tribunal referred to statements by Mr Bartyzal that he was so angered by the rape of his wife that, if he returned to the Czech Republic, he would take the law into his own hands and attempt to kill the perpetrator.  But, the Tribunal found, any punishment which Mr Bartyzal incurred for doing so would be punishment for infringement of a law of general application, not persecution for a Convention reason.

1. The reasons which I have summarised led the Tribunal to its conclusion that the applicants were not persons to whom Australia had protection obligations.

   GROUNDS ON WHICH REVIEW IS SOUGHT; DISCUSSION AND CONCLUSION

   (a)       FAILURE TO FOLLOW PROCEDURES?

2. The particulars stated in the application make three allegations. The first is that the applicants were not given a reasonable opportunity to appear before the Tribunal to give evidence and submit arguments. That is amplified by a set of submissions by Mr Bartyzal, sent to the Court by facsimile by the Orange Family Support Service, an organisation which has provided assistance to the applicants, particularly Mrs Bartyzal. It is there said that Mr Bartyzal was not given the opportunity, nor was his wife or elder daughter, to explain fully what had happened; Mr Bartyzal says that he was told that it would not be necessary for his wife or daughter to participate in the hearings, even though his wife had been present at the earlier hearing before the Tribunal. As a matter of law, however, I think that the Minister is right in submitting that all that the Tribunal was actually required to do, by s 425(1) of the Migration Act, was to “invite” the applicants to appear before the Tribunal to give evidence and present arguments.  There is no doubt that it did that.  On a less formal level, however, I do not think that there can be any serious doubt that the applicant had an adequate opportunity to present his case to the Tribunal.  The Tribunal had before it the voluminous and detailed material which he provided.  He had been advised by his solicitor who was present at the hearing, took part in it and made further submissions afterwards, which the Tribunal took into account.  The purpose of the solicitor’s letter following the hearing was to clarify and add to what had been said at the hearing.  No further hearing was sought.  Nor could it be said that the Tribunal was left in any doubt about what was said to have happened to Mr Bartyzal’s wife and daughter, or the seriousness of it.

3. The other two particulars are that the Tribunal did not set out the findings on all material questions of fact as required by s 430(1)(c) of the Migration Act, and that it did not adequately set out its reasons for its decision as required by s 430(1)(b).  The submissions elaborate on that as follows:

   “We believe that the Tribunal did not give serious enough consideration to the information I was able to give them, and appeared to trivialise the seriousness of the facts I had given them.  I am not satisfied Tribunal officers truly made every effort to investigate and verify or otherwise the information I gave in response to their questioning.

   We are not clear on the reasons the Tribunal gave for not reviewing the decision, because they are not specific.  If there is more information we can give the Tribunal, we would be happy to be given the opportunity to do so.”

4. It is true that the Tribunal did not make findings, seriatim, as to the truth or accuracy of each of the applicants’ individual claims.  It is true also that the Tribunal, in the light of particular matters to which it referred, expressed some doubt as to whether, even in relation to the particular events in the applicants’ home town, the picture was quite as bleak as Mr Bartyzal honestly, as the Tribunal accepted, believed.  But the essence of the Tribunal’s findings, and of the reasons on which they are based, is I think quite clear: whatever the ill‑treatment the applicants had suffered at the hands of a clique in their home town, ill‑treatment of that kind was not sanctioned or tolerated by the central government; and the Czech Republic was willing and able to offer protection for the applicants even if, to avail themselves of that protection, they might need to settle in some part of the Republic other than Ceske Budejovice.  The Tribunal’s findings and reasoning are, in my view, clear and based on material which it was entitled to take into account and to accept.  The Court has no power, in those circumstances, to review the Tribunal’s findings of fact.  Neither its reasons nor any other material before me disclose, in my view, any failure on the part of the Tribunal to follow procedures which it was obliged to follow.

   (b)       ERROR OF LAW?

5. The particulars given in the application are these:

   (a)The Tribunal did not properly or adequately apply the “real chance” test with regard to the likelihood of the Applicants facing persecution in the Czech Republic.

   (b)The Tribunal did not properly or adequately consider whether or not the harm feared by the Applicants amounts to “persecution” within the Convention meaning.

   (c)The Tribunal did not properly or adequately consider whether or not relocation within the Czech Republic as a means of avoiding persecution is reasonably open to the Applicants.

   (d)At page 29 of the decision it is stated that: ‘I am unable to find that they (the second, third and fourth Applicants) are persons to whom Australia has protection obligations …’.  However, the first Applicant claimed that the second and third Applicants had been persecuted, and feared future persecution, because they were members of the first Applicant’s family unit.  This raises the claim that they fear persecution because of their ‘membership of a particular social group’.  The Tribunal did not consider whether or not the second and third Applicant (a) are members of such a social group and (b) have a well‑founded fear of persecution.”

6. Mr Bartyzal adds that both his wife and daughter have suffered, and continue to suffer, as a result of the trauma to which they were subjected in the Czech Republic: particularly, his wife is depressed, anxious and frightened and has had several nervous breakdowns.

7. The crux of the matter, I think, is the question of relocation.  It is true that the Tribunal dealt explicitly with that question very briefly.  But its views about that aspect of the matter almost necessarily followed from its findings of fact: if the misfortunes which the applicants had suffered were the result of activities of a clique of corrupt officials and party members in Ceske Budejovice and if it was accepted (as the Tribunal did accept) that conditions in the Czech Republic generally were as the independent material suggested, it followed that there was no reason to suppose that the applicants, if they settled elsewhere in the Republic, would not be protected or would be subjected to persecution.  There is no lack of clarity in the Tribunal’s reasoning on that question, nor, in my view, does it reveal any error of law.  The reasoning, particularly, discloses no misunderstanding of the “real chance” test.  Given the finding of fact, there was nothing unsound, as a matter of law, in a conclusion that the applicants would not face a real chance of persecution, at least away from their home town.  Nor, given the findings and process of reasoning, did it matter whether what the applicants had suffered amounted to persecution for a Convention reason.  If it did, the Tribunal’s findings of fact led nevertheless to an ultimate finding that they would not face a real chance of suffering persecution on their return.  That would equally be so on the assumption that the Tribunal accepted everything put to it as to what had been suffered by Mrs Bartyzal and Pavla.

   (c)       OTHER MATTERS; CONCLUSION

8. The applicants are unrepresented and have made claims which, if they are accepted, make it clear that great suffering has been inflicted on them. I have carefully considered the reasons of the Tribunal and the material, contained in the folder of Relevant Documents, which was before the Tribunal. The grounds on which the application is based are, for the reasons I have given, not made out. No other ground is apparent on which, under Pt 8 of the Migration Act, the Tribunal’s decision might be set aside.  The Tribunal’s factual findings were open to it and are not open to review by the Court.

9. In those circumstances, the application is dismissed.  The Minister seeks an order that the applicants pay his costs of the proceeding.  No reason is apparent why the usual course should not be followed.  Accordingly, there will be an order also that the applicants pay the respondent’s costs of the proceeding.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane.

Associate:

Dated:             31 August 2000

Counsel for the Applicants:	The first applicant appeared in person, on behalf of the applicants, with the assistance of an interpreter
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	8 August 2000
Date of Judgment:	31 August 2000