SZAES v Minister for Immigration

[2003] FMCA 386

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAES v MINISTER FOR IMMIGRATION [2003] FMCA 386

MIGRATION – Review of RRT decision – application for a protection visa – where the applicant claims to have a well-founded fear of persecution for political reasons – where the applicant did not attend the hearing – where the application was dismissed under Order 32 rule 2(1)(d) of the Federal Court rules – where the applicant has not indicated what jurisdictional error the Tribunal committed.

Applicant: SZAES

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 176 of 2003

Delivered on: 29 August 2003

Delivered at: Sydney

Hearing date: 29 August 2003

Judgment of: Raphael FM

REPRESENTATION

For the Applicant: No appearance

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Application dismissed pursuant to Order 32 Rule 2(1)(d) of the Federal Court Rules.

2. Applicant to pay the respondent’s costs assessed in the sum of $3,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 176 of 2003

SZAES

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This matter is an Application filed in this court on 17 February 2003 for review of a decision of the Refugee Review Tribunal made on

   
   

   18 December 2002 and handed down on 22 January 2003.  The details of the claim made by the applicant are in the following form:

   (1)That the Refugee Review Tribunal decision be set aside.

   (2)That the matter be remitted to the Tribunal for determination according to law.

2. In an affidavit accompanying the application the applicant says:

   “The Tribunal applied the wrong test to whether I met the prescribed criteria.  As a result of the above mentioned the Tribunal's decision involved an error of law being an error involving the incorrect interpretation of the applicable law as an incorrect application of the law to the facts as found by the Tribunal.”

3. The matter came before the Registrar for directions on 12 March 2003.  The learned Registrar made a direction to the effect that the applicant file and serve an amended application and any evidence upon which he proposed to rely on or before 20 June.  The case was then set down for hearing today.

4. The applicant did not file an amended application or affidavit and at 10.35am some 20 minutes after the case was due to have commenced he has not appeared.  I note that the applicant did not appear before the Tribunal even though the Tribunal had written to him and informed him that it was unable to come to a favourable decision in this case and offered him an opportunity to appear.  At [CB 59] the Tribunal notes that on 26 November 2002 the Tribunal was advised in writing by the applicant's agent that the applicant did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it.  It would seem that the applicant wishes this court to do the same thing. 

5. The applicant arrived in Australia bearing a passport from the Republic of the Ukraine on 28 April 2001.  On 10 May 2001 he lodged an application for a Protection (Class XA) visa which was considered by a delegate of the Minister and refused on 19 April 2002.  On 15 May 2002 the applicant sought review of that decision from the Tribunal.

6. The applicant's claim to have a well founded fear of persecution for the Convention reason of political opinion arises out of his membership of a political party known as RUKH which is the opposition party to President Kuchma in the Ukraine.  The applicant makes a number of claims of incidents which would provide him with a subjective fear of persecution.  These include the loss of his job, which is described in the documents as a vet but seems to me to be probably a meat inspector, detention by the police and threats made against him by the police.  The most serious of these threats occurred in 2001.

7. It would appear that in that year there was considerable public opposition to President Kuchma and in the town of Kiev where a tent camp was established.  The applicant claimed to have had some involvement in the establishment of this camp and in May 2001 he was called in to a police station and warned that if he participated in any meetings or rallies he would not be released any more.  The applicant claims that he knew that this was in effect a sentence of death and in order to avoid the persecution he decided to flee from the Ukraine.

8. On 9 August 2001 a departmental officer wrote to the applicant asking him to comment on the large number of issues which caused the Department some concern.  Among those was the question as to why the applicant, who had left the Ukraine and travelled into Germany between the time of the erection of this tent camp and the time that he flew to Australia, had not claimed asylum in Germany.  The applicant's agent responded to these requests and indicated that in relation to the latter the threat which caused the applicant to fear for his life had not then occurred.

9. The Tribunal made its decision based upon the information provided to it and certain country information concerning the Ukraine including country information which indicated that this particular party RUKH was not the subject of any serious threat from President Kuchma or his party.  Indeed, RUKH was the second largest political party in terms of seats in the legislature in that country.  At [CB69] the Tribunal said:

   “The applicant's claims are general and lacking in detail. The applicant did not provide any details as to when he joined RUKH.  He provided no details of his role in the party or what party activities he was involved in. 

   The applicant provided no details as to why he was of interest to the authorities because he was a member of RUKH.  The applicant claims he received a number of threatening calls and representatives of the President's administration but provided no details as to when he received the calls.  The applicant claims the police detained him on a few occasions and threatened not to release him but provided no details as to when or where he was detained.

   The applicant claims he was dismissed from his job in May 1999 because of his political activities but has provided no details of these activities.  The applicant's adviser in his letter to the department dated 10 September 2001 stated that the applicant would provide his party membership card and certificate of dismissal as soon as he received them from the Ukraine.  No documents have been submitted to the Department or the Tribunal.”

   The Tribunal continues in the same vein on [CB 90]. 

10. It is not for me to decide whether or not the Tribunal was right in coming to its decision, only to decide whether or not it came to its decision without committing any form of jurisdictional error.  The applicant has not indicated what jurisdictional error the Tribunal committed although he was ordered to do so.  I have considered the reasons for decision myself and so far as I can see the decision was based upon available evidence, was well reasoned and shows no indication of constituting either a decision created in the absence of the provision to the applicant of natural justice or to have fallen into one of the errors described by the High Court of Australia in Minister for Immigration v Yusuf [2001] HCA 30 or Craig v South Australia [1995] 184 CLR 163. In those circumstances it would seem that the only course open to me is to dismiss the application.

11. I have taken the trouble to provide these reasons for decision because I am making this decision pursuant to Federal Court rules, order 32, rule 2(1)(d) as opposed to Federal Court rules, order 32, rule 2(1)(c).  I do so because I am concerned that applicants in these matters may be using the ability that they have by the rules to seek a re-hearing in cases where they do not attend to further delay their inevitable exclusion from this country.  I would hope that by giving my reasons for judgment in this manner any further application by the applicant can be dealt with expeditiously. 

12. I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $3,500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court rules.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: