NAOH v Minister for Immigration

[2004] FMCA 50

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAOH v MINISTER FOR IMMIGRATION [2004] FMCA 50

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Ukraine – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), s.65

Dranichnikov v Minister for Immigration [2003] HCA 26; (2003) 197 ALR 389

Applicant: NAOH

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ1234 of 2003

Delivered on: 4 February 2004

Delivered at: Sydney

Hearing date: 4 February 2004

Judgment of: Driver FM

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent: Mr A Markus
Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,500.

3. The applicant is to pay the setting down fee of $327 within 28 days or obtain a waiver.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1234 of 2003

NAOH

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 7 March 2003 and handed down on 27 March 2003.  The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from Ukraine and claimed persecution based upon his membership of a particular social group, namely small businessmen, and also on the basis of his asserted political activity.

2. The relevant background facts are accurately set out in paragraphs 1 through to 5 of written submissions prepared on behalf of the Minister by Mr Markus.  I adopt those paragraphs for the purposes of this judgment:

   The applicant is a citizen of the Ukraine, who arrived in Australia on a sub class 456 business visa on 22 November 2000.  On 28 December 2000 he lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) [court book, pages 1-18].

   The applicant’s claims are set out in his protection visa application [court book, pages 1-18], submissions made in support of his application for review to the RRT [court book, pages 35-36] and oral evidence given to the RRT on 28 February 2003.

   In summary, the applicant claimed to fear persecution for reasons of his political opinion and of his membership of a particular social group of small businessmen.  The applicant claimed to have been forced to pay “protection money” to criminal gangs associated with the political leadership of his home town and bribes to corrupt officials.  The applicant also claimed to have been pressured to pay contributions towards the political campaign costs of the President of the Ukraine and to have suffered a beating, imprisonment and false charges and threats of other harm when he refused to pay.  

   On 24 April 2001, a delegate of the respondent made his decision, refusing to grant the applicant a protection visa [court book, pages 27‑30].

   On or about 22 May 2001, the applicant sought review of this decision by the RRT [court book, pages 31-36].

3. I also adopt paragraphs 7 through to 13 of Mr Markus' written submissions which accurately set out the way in which the RRT dealt with the application before it:

   The RRT accepted the applicant's claim that he was subjected to regular demands for "protection money" from criminal gangs and that corrupt local officials required bribes.  The RRT found that were the applicant to return to the Ukraine and continue operating his business, or commence a new one, it was possible that demands of a similar kind and level might be made again.  However the RRT did not accept that such corrupt and criminal activity fell within the Convention.  The RRT noted that the regular extortion commenced in 1997, long before the applicant's alleged public manifestation of his pro-Moroz political opinions.  Furthermore, it was noted that the applicant had not claimed that the extortion was related to his political opinion.  Accordingly, the RRT was satisfied that the demands were unrelated to the applicant's political opinion [court book, page 158]. 

   The RRT noted that the applicant claimed that the “protection money” was extracted from him by reason of his being a "small businessman".  The Tribunal found that there was nothing before it which would lead it to conclude that "small businessmen" constituted a particular social group in the Ukraine and there was nothing to suggest that extortion, whether by corrupt officials or by criminal gangs, was limited to small businessmen or indeed to businessmen at all [court book, page 158]. 

   The RRT found that, in any event, the applicant claimed to have regularly paid the extortion demanded of him since 1997 and while such extortion was to be deplored, the applicant had not suffered unduly as a result.  Having regard to the examples of "serious harm" set out in s.91R of the Act, the RRT would not regard the regular payment of bribes and "protection money", in the context described by the applicant, as being sufficiently serious as to constitute persecution [court book, page 158]. 

   In relation to the applicant's claims that further, excessive demands were placed on him because of his political opinion, the RRT was prepared to accept that the applicant was a supporter of Oleksandr Moroz and his Socialist Party of Ukraine (SPU) in the lead up to the 1999 Presidential election.  However the RRT was not satisfied that the applicant was a member of the SPU.  The RRT found that had the applicant been such a member, it would have expected him to have stated that fact explicitly in his written statements, and would have expected him to refer to the party by name, rather than as "A. Moroz party" [court book, pages 158-159]. 

   The RRT was not satisfied that the applicant was actively involved in canvassing for signatures in support of Moroz's candidature, noting that the applicant's oral evidence was that he did not believe in elections in 1998, nor was he an active political party member [court book, page 159]. 

   The RRT noted the inconsistencies in the applicant's earlier written claims and his oral evidence.  These inconsistencies were put to the applicant at the hearing and the RRT noted the applicant's explanation that, at the time he prepared his statements he did not have the expert assistance of a migration agent.  However the RRT found that had the applicant been abducted on 1 June 1999, arrested, falsely charged with tax offences and detained for two weeks and traced to Lvov and beaten up to the extent that he required hospitalisation, the RRT would have expected at least a passing reference to have been made to each event in his initial written claims.  Accordingly the RRT was not satisfied that these events had occurred [court book, pages 159-160]. 

   Finally in relation to the applicant’s claims that, having been the subject of an attempted extortion by criminals because of his political beliefs in mid 1999, he was threatened with physical harm or even death when he refused to meet their demands, the RRT noted that had criminals seriously wished to harm the applicant, they had ample opportunity to do so over the ensuing period of almost 18 months prior to him leaving for Australia.  The RRT did not accept that a criminal gang would simply accept such a refusal, release the applicant and take no further action against him for a period of many months.  The RRT therefore was not satisfied that the applicant was the subject of persecution because of his political opinions in 1999 and 2000.

4. The applicant proceeded today on the basis of his application filed on 17 April 2003.  In that application he asked the Federal Court to consider issues of law in his case and whether or not the Department and the RRT interpreted the law correctly and whether or not they followed the correct methods in assessing his claims.

5. I am, of course, reviewing the decision of the RRT and not the decision of the delegate.  Subject to that qualification, the application is a general invitation to me to examine the decision of the RRT for jurisdictional error.  The application is supported by an affidavit also filed on 17 April 2003.  In that affidavit the applicant asserts that the RRT decision is vitiated by bias.  He also asserts that the RRT member followed an incorrect approach in assessing his claims.  The applicant is concerned that the decision of the RRT is subjective and that it was based on inadequate evidence.

6. The applicant is concerned that the presiding member focused on what the member saw as inconsistencies in the applicant's material rather than on the substance of this claim.  The applicant elaborated on these concerns in his oral submissions.  Substantially, the applicant's concerns go to the merits of the RRT decision.  As I explained to the applicant, the Court cannot review the RRT decision on the merits.  As was pointed out by Mr Markus in his oral submissions, the role of the RRT is to evaluate refugee claims in good faith in accordance with statutory and other legal requirements.

7. There is no substance to the claim of bias.  There is nothing in the book of relevant documents to suggest that the presiding member did not approach the assessment of the applicant's claims with an open mind.  On the contrary, the reasons for decision (court book, from page 142) indicates strongly that the presiding member approached his task with care and considered the applicant's claims in detail.  The presiding member was plainly sceptical about elements of the applicant's claims but that scepticism was raised with the applicant at the RRT hearing.

8. The applicant was given a fair opportunity to convince the presiding member of the accuracy of his claims. The presiding member was in significant respects unpersuaded but that does not establish actual or imputed bias. There is also no legal significance in the applicant's claim of subjectivity. Again, as pointed out by Mr Markus in his oral submissions, the presiding member must satisfy himself or herself for the purposes of making a decision pursuant to s.65 of the Migration Act 1958 (Cth) (“the Migration Act”). In the circumstances, an element of subjectivity is inevitable. In this matter, the RRT member approached the task before him with an open mind and assessed the evidence fairly. In my view, the conclusions reached by the presiding member were reasonably open to him on the material before him.

9. The RRT accepted claims made by the applicant in relation to extortion demands made of him or bribes solicited from him. However, the RRT found no Convention nexus with the harm suffered by the applicant. In particular, the RRT was not persuaded that small businessmen constitute a particular social group in Ukraine. Even if they did, the applicant had not satisfied the RRT that the harm he suffered resulted from his membership of that group. Further, the RRT was not satisfied that the harm suffered by the applicant constituted persecution for the purposes of the Convention as clarified by the Migration Act.

10. In reaching its decision in this matter, the RRT, in my view, avoided the errors identified by the High Court in Dranichnikov v Minister for Immigration [2003] HCA 26; (2003) 197 ALR 389. At paragraphs 26, 27 and 95 of that decision their Honours Gummow, Hayne and Callinan JJ said that the task of the RRT involves a number of steps.

11. First, the RRT needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention.  That determination in part, at least, involves a question of law.  If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class.  In this case, the first question was answered in substance in the negative.  However, it was not answered with such certainty that the RRT could rest at that point.  The presiding member went on to find that even if the applicant was a member of that class, if it existed, the harm which he experienced did not result from his membership of that class.  Further, the harm was not so serious or systematic that it could be accepted as persecution for the purposes of the Convention on the facts of this case.  I see no legal error in the RRT’s approach.

12. The applicant's claims of a well-founded fear of persecution based upon his political activity were rejected primarily on the basis of adverse findings of credibility.  Those findings were, in my view, reasonably open to the RRT on the material before it.  The claims originally made by the applicant in his protection visa application were quite weak.  The RRT was concerned that the applicant raised serious new claims later over time, including at the RRT hearing.  This created an adverse impression that the applicant was constantly trying to build up a claim which was not originally sufficient.  The presiding member was also concerned about inconsistencies in the applicant's claims.  Those inconsistencies were not mere trifles as the applicant contends.  Over time the applicant's claim grew from that of being a mere supporter of Mr Oleksandr Moroz to being an active member of his Socialist Party who suffered serious physical harm as a result.  The RRT’s rejection of the bulk of those claims gives rise to no legal concern in my view. 

13. I will dismiss the application.

14. On the question of costs, the application having been dismissed, Mr Markus seeks an order for costs and has identified the Minister's party-party costs as $3,500.  Having regard to the amount of preparation required of the Minister in this case, I am satisfied that an award of costs fixed in that sum would be appropriate.  I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,500.  I will also order that the applicant pay the Court’s setting down fee of $327 within 28 days of today's date or obtain a waiver.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  10 February 2004