Preisman v Minister for Immigration and Multicultural Affairs

[1999] FCA 780

FEDERAL COURT OF AUSTRALIA

Preisman v Minister for Immigration & Multicultural Affairs [1999] FCA 780

MIGRATION – application to review a decision of the Refugee Review Tribunal which affirmed a decision not to grant a protection visa – whether the applicant is a refugee – no error of law alleged – application seeks a review of the merits of the visa application – application dismissed – no point of principle

Migration Act 1958 (Cth), s 475

Prahastano v Minister for Immigration and Multicultural Affairs (1997) FCR 260 cited

Matter No. N 85 of 1999

YELENA PREISMAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VON DOUSSA J
SYDNEY
4 JUNE 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 85 OF 1999

BETWEEN:	YELENA PREISMAN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	VON DOUSSA J
DATE OF ORDER:	4 JUNE 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 85 OF 1999

BETWEEN:	YELENA PREISMAN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	VON DOUSSA J
DATE:	4 JUNE 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application brought under s 475 of the Migration Act 1958 (Cth) (the Act) seeking to review a decision of the Refugee Review Tribunal (the RRT) made in Sydney on 19 January 1999. The RRT affirmed an earlier decision of the Minister’s delegate not to grant the applicant a protection visa. The applicant, as the primary person, had made an application seeking a protection visa on the ground that she was a refugee within the meaning of the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (the Convention). In Article 1A(2) the Convention defines a refugee as:

   “any person who, owing to a 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.”

2. The application for the protection visa included two secondary persons, namely the applicant’s husband and her young child.  For them to obtain a protection visa, it is necessary first that the applicant herself qualify as a refugee.  If she does not, the applications of the secondary persons also fail.

3. The claim to refugee status was made on the ground that the applicant had been persecuted for reasons of her ethnicity, namely her Russian background, and of her religion, namely as a Christian, in the country of her then nationality, Israel.

4. The discrimination alleged related primarily to her difficulty in obtaining employment in Israel, but also included difficulties which she perceived that her child had suffered at kindergarten and which she and her husband had experienced in relation to their attempt to have a civil marriage.

5. The RRT had before it the written applications for refugee status made by the applicant and also received evidence from the applicant and her husband.

6. The RRT found that the applicant and her husband were credible witnesses.  It accepted their evidence about their life and experiences in Israel.  The RRT accepted that the applicant is a Russian and a Christian, and that she experienced discrimination in relation to her employment after she had completed a computer course in Israel in about July 1994.  The RRT held that that discrimination continued for about twelve months, whilst the applicant was actively seeking computer related work.

7. The RRT noted that the applicant had been able to find paid work as a cleaner, working with her parents during that time, but having being trained as a computer operator, and having received some eleven years of schooling in Russia, she expected to be employed in a less menial capacity.

8. The RRT also accepted that the applicant believed that her child had not been treated like others at kindergarten and accepted the applicant’s perception that her child did not seem to be happy there.  The RRT noted that whilst there was no evidence that the child was mistreated, and that the applicant did not claim that he was, she was asked questions by kindergarten staff about why the child was not circumcised as a Jewish child would be.  The RRT observed that in those circumstances, it did seem plausible that the kindergarten staff might have treated the child as different from other children.  However, the RRT found that no harm was done to the child, even if it were not treated as a Jewish child might have been.

9. The RRT observed that the applicant did not provide any further evidence of discrimination in Israel, apart from her claim that she was unable to marry her partner in a civil marriage.  The RRT said that since it appeared secular marriages are not available, even to Jews, in Israel it could not be said that that prohibition applied in a discriminatory way against Christians who may be married by their own religious community, nor did it amount to a discrimination against Russians.

10. The RRT noted that the applicant had said that she did not feel that she had been persecuted in the sense that she had been harmed or that attempts had been made to force her to leave Israel, but the RRT did accept that she was distressed by the fact that she was not accepted in the Israeli community in the way that she would have liked.  The RRT, in expressing its conclusions relating to the discrimination in employment, accepted that the applicant had been unable to find work suited to her qualifications, which amounted to discrimination.

11. However, the RRT was not, in the end, prepared to find that the discrimination amounted to persecution by reason of the applicant’s Russian background or her religion.  The RRT noted that the applicant did not consider that her difficulty was due to a lack of fluency in Hebrew.  However, the RRT was of the opinion that as the applicant had spent all her life in Russia, and been at school until she came to Israel, it was likely that she was unfamiliar both with the requirements of office employment and with the requirements of employment in Tel Aviv.  The RRT concluded that it was likely that the applicant was highly inexperienced.

12. The RRT noted that the applicant’s husband had said that the applicant was an entirely different personality from what was expected of Israelis because of profound cultural differences and that he had observed that there was little time for the applicant to adjust to the Israeli environment when she began to seek employment.  The RRT in reaching its conclusion said that it took into account the applicant’s working experience and also independent evidence that was available to it about Israel from the United States State Department.  That material made no mention of discrimination in Israel against Russians or Christians.  The absence of any such mention led the RRT to conclude that even if there were discrimination it was not systematic, widespread, or sufficiently serious for it to be noted in a human rights context.

13. The RRT noted that discrimination against persons of different ethnicity or religion was prohibited by Israeli law.  The RRT concluded that the applicant’s difficulties with employment were not related either to her ethnicity or religion.  The RRT found also that the inability to find appropriate work and the unavailability of a civil marriage was not due either to her religion or ethnicity.  But the RRT added the rider that even if the inability to find suitable work and her child’s treatment at kindergarten were the result of discrimination for reasons of her religion or race, it was not satisfied that the discrimination was sufficiently serious to amount to persecution.

14. Not every detriment suffered by a person amounts to persecution.  Whether a detriment is sufficiently serious to do so is essentially a question of fact and involves matters of degree: see Prahastano v Minister for Immigration and Multicultural Affairs (1997) FCR 260. The summary of the facts which I have just taken from the findings of the RRT do not indicate a degree of discrimination that could amount to persecution.

15. As I explained to the applicant at the outset of the hearing the jurisdiction of this Court is strictly confined to correcting errors of law which fall within the narrow grounds of s 476(1) of the Act.  The application which has been filed by the applicant does not address the requirements of s 476(1), nor do the matters raised in the application suggest an error of law.

16. In the application the applicant says that the decision of the RRT upset her as she thought she had enough evidence that she had submitted to the RRT.  In the grounds of her application she repeated a number of factual matters, in particular that she felt discriminated against in Israel; that she felt her son was discriminated against in a kindergarten because he was a Christian; that the Israelis did not give the applicant a chance to undertake proper work; and that because she was a Russian her many requests for employment had been unsuccessful.  She also noted the difficulties which her father who was qualified as a doctor in Russia had experienced in obtaining work in his profession in Israel.

17. Those matters are all matters of fact, not suggestive of an error of law.  In submissions before this Court the applicant has again repeated the facts put before the RRT upon which she makes her claim.  However, this Court has no jurisdiction or power to conduct a review of the facts or a review of the merits of the application.  The assessment of the merits is a matter which falls to the RRT under the provisions of the Act.  By law this Court can only interfere if the RRT does not proceed according to law in reaching its decision.  As no error of law has been identified this Court is powerless to grant the relief which the applicant seeks.  The application must be dismissed.

18. The application will be dismissed.  The applicant must pay the respondent’s costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice von  Doussa.

Associate:

Dated:            4 June 1999

The Applicant appeared in person
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	4 June 1999
Date of Judgment:	4 June 1999