Szach v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 670

FEDERAL COURT OF AUSTRALIA

SZACH v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 670

SZACH v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 624 OF 2003

LINDGREN J
30 JUNE 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 624 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZACH APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	30 JUNE 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the costs of the appeal.

3.As to the whole of the costs specified in order 2, instead of fixed costs the respondent shall be entitled to, and the appellant shall pay, the gross sum of $3,000.00.

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 624 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZACH APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	LINDGREN J
DATE:	30 JUNE 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant appeals from a decision of the Federal Magistrates Court given on 5 May 2003.  The following are his grounds of appeal:

   “I disagree with the Federal Court’s decision on the grounds that the judge failed to take into account relevant material and facts.

   (a)The decision was made with no consideration to the political situation in Ukraine.

   (b)The Ukrainian authorities unwilling to protect members of the other than Ukrainian ethnic group.”

2. The appellant is unrepresented and is assisted by an interpreter.

3. I agree with the written submission of counsel for the respondent Minister that if the grounds of appeal set out above are intended to refer to the reasoning of the Federal Magistrate, they are misconceived.  The reason is that the Federal Magistrate was not required to take into account “relevant material and facts” of the kind referred to in the grounds of appeal, since his Honour was not determining the facts but was hearing an appeal from the Refugee Review Tribunal. 

4. If the grounds of appeal are intended to signify that the Federal Magistrate erred by failing to recognise that the Tribunal did not take into account the “material and facts” referred to, the appeal must again fail.  The reason is that the Tribunal did take into account both the political situation in Ukraine and the question of the willingness or unwillingness of the Ukrainian authorities to protect members of ethnic groups.

5. The appellant has read out to me certain criticisms of paragraphs numbered 5, 6 and 7 in the reasons for decision of the Federal Magistrate.  He said the paper from which he was reading was prepared by himself and a friend, neither of them being legally qualified. 

6. The appellant criticises paragraph 5 of the Federal Magistrate’s reasons.  In that paragraph the Federal Magistrate noted that the Tribunal found that some incidents alleged by the appellant did not occur, and found that at least one other incident in which the appellant said he was physically attacked, arose because the appellant had intervened in a brawl.  The appellant’s criticism seems to be that the Tribunal had been inconsistent by being prepared to find that some incidents had occurred and others had not.  But it is not the law that the Tribunal must find either that all incidents alleged occurred or that none did.

7. The appellant next criticised paragraph 6 of the learned Federal Magistrate’s reasons for decision.  In that paragraph his Honour noted that the Tribunal had accepted that there had been anti-Semitism in Ukraine for many years and that to some degree anti-Semitism remains.  The Federal Magistrate noted that the Tribunal had not accepted that the appellant had been the victim of anti-Semitic persecution or would suffer from it if he should return to Ukraine.  Further, his Honour observed that the Tribunal had had regard to country information which indicated an improvement in the sense of a decreasing incidence of anti-Semitic attacks or an increase in the determination of the Government to deal with it.  

8. Importantly, in paragraph 6, the learned Magistrate noted that the Tribunal had found that the anti-Semitism which still existed in Ukraine had no connection with the State, which did not condone it and which made available protection against it.  As I understand it, the appellant’s criticism of paragraph 6 is that once it was accepted that there is still some anti-Semitic feeling and activity in Ukraine, that is the end of the matter and he should have been entitled to a protection visa.  Obviously this does not follow.

9. Finally, the appellant criticised paragraph 7 of the Federal Magistrate’s reasons for decision.  I found it difficult to understand precisely what error the appellant alleges in relation to this paragraph.  It appears to be simply that the Tribunal had made an error of fact, but the facts were a matter entirely for the Tribunal and I see no basis for saying that the Federal Magistrate erred in what he recorded in paragraph 7.

10. Neither the grounds specified in the notice of appeal nor anything further said by the appellant this morning exposes any error in the reasoning of the Federal Magistrate.  The appeal will be dismissed.

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

Associate:

Dated:             4 July 2003

The Appellant appeared in person
Counsel for the Respondent:	Mr S Lloyd
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	30 June 2003
Date of Judgment:	30 June 2003