SZAFA v Minister for Immigration - [2003] FMCA 425

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAFA v MINISTER FOR IMMIGRATION

[2003] FMCA 425

MIGRATION – Review of decision of RRT – where applicant does not attend – where applicant provides written submissions – where it is alleged country information should have been put to the applicant.

Migration Act 1958 (Cth), ss.424A(1)(a), (2)(a), 44A(3)(a), (3)(a)

VEAJ of 2002 v Minister for Immigration [2003] FCA 678
VDAU v Minister for Immigration [2003] FCA 363
SBBS v Minister for Immigration (2002) 194 ALR 749
NACL of 2002 v Minister for Immigration [2002] FCAFC 387
WAAJ v Minister for Immigration [2002] FCAFC 409
VAAC v Minister for Immigration [2003] FCAFC 74
NAKB v Minister for Immigration [2003] FMCA 320

Applicant:

SZAFA

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 234 of 2003

Delivered on:

22 September 2003

Delivered at:

Sydney

Hearing date:

22 September 2003

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

No appearance

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

Application dismissed.
Applicant to pay respondent’s costs in the sum of $4,250.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 234 of 2003

SZAFA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant in this matter is a citizen of Estonia who arrived with his wife in Australia on 10 January 2001. On 19 February 2001 he lodged an application for a Protection (Class XA) Visa with the Department of Immigration & Multicultural & Indigenous Affairs. His wife applied as a member of his family. On 20 April 2001 a delegate of the Minister refused to grant him a protection visa and on 17 May 2001 he and his wife applied for review of that decision.
There was considerable correspondence with the applicant and an adviser and the Tribunal between July and August 2002 which is detailed at [CB 74]. On 22 August 2002 the applicant advised the Tribunal that he no longer wished to attend the hearing and he consented to the Tribunal proceeding to make a decision on the review without taking any further steps to enable him to appear before it.
The Tribunal dealt with the matter on that basis, made its decision on 31 December 2002 handing it down on 30 January 2003. The Tribunal affirmed the decision of the delegate and on 25 February 2003 the applicant filed an application in this court seeking judicial review of that decision. The applicant appears to have attended before the Registrar who made the usual orders including an order requiring the applicant to serve an amended application and any evidence upon which he proposed to rely on or before 30 May 2003 and submissions five working days prior to the hearing date which was set down for

22 September 2003.
On 29 July 2003 the applicant filed an amended application which indicated that he complained that the Tribunal took into account certain country information which it did not give him notice of pursuant to ss.424A(1)(a) and 424A(2)(a) of the Migration Act 1958 (Cth). He argued that none of this information was excluded by s 424A(3)(a) and referred to the case of VEAJ v Minister for Immigration [2003] FCA 678 at 30 [30-54].
The matter came on for hearing on 22 September 2003; the applicant was not in attendance although he was called when I commenced to hear the matter at 10.30 a.m.
The applicants claim to have a well-founded fear of persecution for the Convention reason of political opinion arose out of his sympathy with persons living in Estonia of Russian nationality. He said that he had been persecuted by the authorities for these views. He also advised the delegate that he had travelled to the United Kingdom in March 1999 and sought asylum in that country unsuccessfully.
The Tribunal was obliged to proceed on the basis of the documentation which was before it in original form so far as the applicant's case was concerned and the Tribunal relied upon a considerable body of country information concerning the political situation in Estonia, human rights in Estonia and the attitude of the Estonian Government towards persons of Russian citizenship or Russian nationality.
In its findings and reasons at [CB 80] the Tribunal says:
"The applicant's claims of persecution are unspecific. They are vague and lacking in detail. He claims to have opposed the adverse treatment of the Russian population in Estonia but gave no information on how, when and where he had expressed that opposition, or what means, if any, he used to promote his views. He claims to have been persecuted by the authorities but gave no information on what form that persecution had taken; for example, arrests, detention, physical mistreatment, harassment or threats to himself or his wife or family or persecution in the workplace. With such material, the Tribunal is unable to satisfy itself as to the veracity of his claims or that he faces a real chance of treatment amount to serious harm or persecution in the reasonable foreseeable future.”
The Tribunal accepts that the applicant may oppose Estonia's treatment of its Russians which, according to independent information which the Tribunal accepts, comprise 29% of the total population. The independent information, which the Tribunal also accepts, is that while there is some discrimination against ethnic Russians in Estonia, indeed all non-citizens, in certain areas, for example citizenship law and language, there is no evidence of any pattern of human rights abuses against the Russian population, either from the authorities or tolerated by the authorities.
The Tribunal also accepts the independent information on human rights in Estonia, particularly freedom of expression and protection under the law; rights enshrined in the Constitution and adhered to in practice by the authorities. If the applicant wishes to promote a particular political view as he claims, the Tribunal is satisfied that he may do so without fear of interference by the authorities.”
The Tribunal then came to the view that as the applicant had been allowed to depart Estonia without difficulty and held a passport of that country he was not a person of adverse interest to the authorities. It then affirmed the decision of the delegate.
The applicant in his amended application to which he has not spoken, refers to particular country information which included a United States Department of State country report on human rights practices in Bangladesh. But so far as I can see that is a mistake and the document referred to is just the US State Department Country Reports on Human Rights Practice 2000. It refers to a document entitled “World Directory of Minorities”, to another document entitled “Russian Baltic Party in Estonia Officially Registered” and a final document entitled “Citizenship Issues, Inter-movement Party and UNA”, being a DFAT document dated 8 November 1999.
He claims that this is not the type of information referred to in s.44A(3)(a) of the Migration Act. That subsection excludes from the requirement:
“To advise an applicant of information that might be the reason, or part of the reason, for affirming the decision that is under review, information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member.”
The applicant in his amended application does not explain why those documents which appear from their title to be documents about the situation in Estonia and the Russian minority there generally does not come within that subsection. Possibly he is saying it because he is not a Russian himself and is therefore not a member of the class of persons about which the information is given.
In his helpful written submission Mr Reilly says:
“
That the comments relied upon by the applicant and made in VEAJ of 2002 v Minister for Immigration [2003] FCA 678 were obiter, and inconsistent with the considered analysis of

s 424A(3)(a) in VDAU v Minister for Immigration [2003] FCA 363 and is inconsistent with Full Court decisions such as SBBS v Minister for Immigration (2002) 194 ALR 749 at [29] and NACL of 2002 v Minister for Immigration [2002] FCAFC 387 at 17, WAAJ v Minister for Immigration [2002] FCAFC 409 at [33-35] and VAAC v Minister for Immigration [2003] FCAFC 74 at [20].”
As I have not heard any submissions from the applicant in relation to this matter, I propose to take the course followed by Baumann FM in NAKB v Minister for Immigration [2003] FMCA 320 and prefer the Full Bench decisions in SBBS and VAAC rather than VEAJ, a single decision of Gray J.
In the circumstances I cannot find in the decision of the Tribunal any other matters upon which an allegation could be made that the Tribunal has committed a jurisdictional error in the manner in which it came to its conclusions and I therefore propose to dismiss the application pursuant to Order 32 rule 2(d) of the Federal Court Rules. I order that the applicant pay the respondent's costs which I assess in the sum of $4,250.00 pursuant to Part 21 rule 21.02(2)(a) of the Federal Magistrates Court Rules.

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

Associate:

Date: