Sandu v Minister for Immigration and Multicultural Affairs

[2000] FCA 1060

FEDERAL COURT OF AUSTRALIA

Sandu v Minister for Immigration & Multicultural Affairs [2000] FCA 1060

Migration Act 1958 (Cth)

DANUT SANDU v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 377 of 2000

BRANSON J
SYDNEY
25 JULY 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 377 of 2000

BETWEEN:	DANUT SANDU APPLICANT
AND:	MINISTER FOR IMMIGRATON AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	25 JULY 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The decision of the Refugee Review Tribunal be affirmed.

2.        The applicant pay the costs of the respondent.

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 377 of 2000

BETWEEN:	DANUT SANDU APPLICANT
AND:	MINISTER FOR IMMIGRATON AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	BRANSON J
DATE:	25 JULY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application brought under s 476 of the Migration Act 1958 (Cth) (“the Act”) for review of the decision of the Refugee Review Tribunal (“the Tribunal”). By a decision handed down on 22 March 2000 the Tribunal affirmed the decision of a delegate of the Minister to refuse to grant Mr Sandu a protection visa.

2. Section 36 of the Act provides for a class of visas to be known as protection visas. In order for a protection visa to be granted, the Minister must be satisfied that the applicant is a non-citizen in Australia to whom Australia has protection obligations under 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 (together “the Convention”; s 36(2) of the Act and clause 866.221 of Schedule 2 of the Migration Regulations 1994). Australia will have protection obligation to the applicant under the Convention if he is a 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.”  (Art 1A(2) of the Convention).

3. Mr Sandu has appeared today without legal assistance.  Unsurprisingly, he has no understanding of the limited grounds upon which this Court can review a decision of the Tribunal.  He has been unable to provide any assistance to the Court.  I have considered the reasons for decision of the Tribunal and the other material before the Tribunal.  For the reasons set out below, I have concluded that the decision of the Tribunal must be affirmed.

4. Mr Sandu is a citizen of Romania who arrived in Australia on 3 October 1997.  He arrived in Australia with a visa valid for three months.  On 2 January 1998 Mr Sandu married an Australian citizen.  On the same day he applied to remain permanently in Australia by reason of his marriage relationship.  This application was refused by a delegate of the Minister on the basis that the relationship was not a genuine and continuing one.  On 19 May 1998 Mr Sandu was taken into immigration detention.  On 22 May 1998 he applied for a protection visa.

5. On 10 July 1998 a delegate of the Minister refused to grant Mr Sandu a protection visa.  Mr Sandu applied to the Refugee Review Tribunal for review of the delegate’s decision.  The Tribunal affirmed the delegate’s decision not to grant Mr Sandu a protection visa.  In reaching its decision the Tribunal had access to the file of the respondent touching on Mr Sandu.  This file included Mr Sandu’s application for a protection visa and certain written material provided by him to the Tribunal.  Mr Sandu was also able to give oral evidence to the Tribunal.

6. The Tribunal summarised in its reasons for decision as follows:

   “The Applicant claimed that he left Romania because he was persecuted by the authorities and by ‘certain other elements’ because of his ‘past political affiliations’; he was a member of the Communist Party of Romania and he claimed that since the 1989-90 revolution, members of that party have been persecuted.  He was forced to resign from the Police force, he had worked mainly in the Galati and Vaslui regions, because of those past political affiliations.

   The Applicant claimed that in the Police force until 1989-90 revolution ‘all officers had to act as unofficial informers for the State security service known as the SECURITATE.  We were required to observe on and inform on different people who were suspected of political agitation or working against the authorities.  We received a list of names and addresses on a regular basis and were obliged to find something illegal about their activities in order to create a reason to arrest them if my superiors so decided.  At the end of each week we had a meeting at which we had to report to our superiors about our activities carried out on behalf of the Securitate.  If we did not carry out our instructions we were accused ourselves of being subversives and threatened with dismissal from the Police force.  I did not want to carry out the instructions, but I was forced to.  I had at that time a wife and child to support and could not afford to lose my position on the Force.’  The Applicant didn’t like doing this and was criticised several times for not carrying out his duties for the Securitate actively enough.

   The Applicant wrote that prior to the 1989-90 revolution the police force abused its power and instead of protecting people ‘we were ordered to act against the crowds who were demonstrating in the streets.’  They arrested demonstrators and were threatened with dismissal or arrest if they did not obey orders.  A few months after the revolution the situation changed; old Communist officers in the police force were dismissed and replaced with people more suited to the ‘new political process’.  Police officers were supposed to be apolitical but to get ahead one had to be sympathetic to the new political institutions.  The Applicant claimed that he didn’t get further promotion despite his superior experience and training and he was ‘persecuted’; he had to work when not rostered on, was given ‘dirty’ jobs, and ‘at times’ he was detained and punished and didn’t understand why.

   The Applicant also claimed that he began to get anonymous threatening calls and letters at home in which he was told to resign because he was a Communist and shouldn’t be in the new police force; his car tyres were slashed and windows at his apartment were broken.  The Applicant claimed that once he came home to find the door of his apartment burnt and his family terrified; his wife was hospitalised for a month and had to retire from her job on medical grounds.  The Applicant believed that the source of his problems were people he had arrested in the past who in the new establishment, had senior political positions.  Therefore he made arrangements to leave and come to Australia.

   The Applicant claimed that if he returned to Romania he will be persecuted by the authorities and by individuals as a result of his previous Communist Party affiliations; as a policeman who worked for the previous Communist Government he is perceived as a supporter of the Government that repressed people and alternative political parties.  To be a policeman one had to be a Party member, and people did not understand that he had to carry out his orders.  The Applicant claimed that the authorities cannot and will not protect him because they are one of his major persecutors, along with some of the civilian population.  Many people he had to arrest in the past are in senior and influential positions and seek revenge against him and anyone else who was a policeman in the former Communist regime.  The Applicant wrote that he had more to say and it was being translated; nothing further was ever submitted.”

7. The Tribunal rejected the majority of the applicant’s claims.  The Tribunal accepted that the applicant trained as a police officer from 1986 to August 1988 and that he worked as a policeman in Galati until about mid 1994 and then in Vaslui until he resigned in December 1996.  However, the Tribunal rejected the following claims made by the applicant:

   (a)that he was a member of a special group of four police officers in his area entrusted with the task of finding non-political reasons to arrest people and doing unpleasant things to them;

   (b)that he was forced to resign from the police force; and

   (c)that he was harassed, threatened or assaulted.

8. The Tribunal concluded that it was not satisfied that the applicant was persecuted by his employer for reasons of his actual or imputed political opinion or for any other Convention reason.  The Tribunal was not satisfied that the applicant was persecuted by others because of his past political affiliations.  The Tribunal was not satisfied that the applicant had a well-founded fear of persecution if he returned to Romania.  It was, therefore, not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention.

9. It was open to the Tribunal on the evidence and other material before it to take an adverse view of Mr Sandu’s credibility.  Having done so, it was open to it to conclude that it was not satisfied that he has a well-founded fear of persecution should he return to Romania.  It became plain at today’s hearing that what Mr Sandu seeks from this Court is a review on the merits of the Tribunal’s decision.  It is not open to this Court to review the decision of the Tribunal on the merits.

10. I have considered the written reasons of the Tribunal with care. Having done so I am satisfied that there is no ground of review under s 476 of the Act upon which the decision of the Tribunal could be set aside. The decision of the Tribunal is for that reason affirmed.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:   3 August 2000

The Applicant appeared for himself
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	25 July 2000
Date of Judgment:	25 July 2000