SZAHQ v Minister for Immigration
[2003] FMCA 548
•26 November 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAHQ & ORS v MINISTER FOR IMMIGRATION | [2003] FMCA 548 |
| MIGRATION – Review of Refugee Review Tribunal – refusal of protection visas – applicants claiming religious persecution in Russia – whether the RRT committed a jurisdictional error in finding that effective State protection is available to the applicants, based upon country information – no reviewable error found. |
Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.91R
Labara v Minister for Immigration [2002] FCAFC 145
Yusuf v Minister for Immigration (2001) 180 ALR 1
| First Applicant: Second Applicant: | SZAHQ SZAHR |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ439 of 2003 |
| Delivered on: | 26 November 2003 |
| Delivered at: | Sydney |
| Hearing date: | 26 November 2003 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicants appeared in person
| Counsel for the Respondent: | Mr J Smith |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
For the purposes of Part 11 of the Federal Magistrates Court Rules 2001 (Cth), SZAHQ is appointed as litigation guardian of SZAHS, and SZAHQ is relieved of the obligation of filing an affidavit of consent or of notifying the respondent of her appointment.
The application is dismissed.
The first and second applicants are to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ439 of 2003
| SZAHQ, SZAHR, SZAHS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 7 February, 2003 and handed down on 27 February, 2003. The RRT affirmed a decision of a delegate of the Minister not to grant protection visas to the applicants. There are three applicants, a mother, a father, and a son, all from Russia. They applied for protection visas on the basis of asserted religious persecution in Russia. The applicants are Jehovah’s Witnesses and made claims of persecution in Russia on account of their faith.
The background to these proceedings is set out in paragraphs 4 through to 8 of written submissions prepared by Mr Smith on behalf of the Minister and filed on 25 November, 2003. I adopt those paragraphs as an accurate statement of the background facts and circumstances for the purposes of this judgment:
The applicants are husband, wife and son who are citizens of the Russian Federation who arrived in Australia on 23 September 1998 on the authority of a business visa and who lodged an application for a protection visa on 6 November 1998. On 10 February 1999 a delegate of the respondent made a decision refusing to grant the applicants a protection visa and the applicants applied to the RRT for review of that decision.
The applicants claimed that they had a fear of persecution in Russia because of their religion, namely, they were Jehovah’s Witnesses. The applicants wife made a statement in support of the application (court book, pages 27-31) in which she set out a long history of abuse and discrimination for reasons of her religion. The applicants also attended a hearing held by the RRT and gave evidence and answered questions put to them by the RRT.
RRT Decision
The RRT did not find the applicant wife to be a credible witness and found that she had exaggerated and fabricated her claims in order to enhance her claim to have refugee status (court book, page 157.1). These findings were made in light of independent evidence and in particular the fact that the Jehovah’s Witnesses themselves had stated that they were unaware of incidents of physical abuse or harassment against individual Jehovah’s Witnesses from either the authorities or members of the public.
In respect of the claim regarding conscription the RRT found that any punishment for refusal to perform military service would not be on a discriminatory basis because military service was a legal requirement which is applied universally to all males in Russia. It found that there was no suggestion in the evidence that the laws were enforced in a discriminatory manner or punishment for non-attendance of a summons is enforced in a discriminatory manner.
Finally, the RRT found that Jehovah’s Witnesses were not persecuted in Russia and that they were not denied adequate State protection for reason of their religion nor restricted in their movement within Russia (court book, page 160.5).
The application for review filed on 25 March 2003 lists two grounds. The first is that the RRT had no evidence to suggest that the applicants were not credible witnesses. Secondly, the application asserts that the RRT decision that the Russian authorities were able to provide effective State protection was baseless and contradicted independent country information. If the application were limited to those grounds it would fail. It is clear from the decision and reasons for the RRT that the presiding member analysed the claims made by the applicants and considered them in the context of country information. The claims made by the applicants themselves and the country information constituted evidence before the RRT upon which it was reasonably open to the presiding member to make an adverse finding on credibility.
The second ground set out in the application does not, in my view, extend beyond a challenge to the merits of the decision. As I pointed out to the first applicant, the function of the Court is not to review the merits of the RRT decision but to consider whether there is any jurisdictional error in that decision.
However, the applicants have expanded the grounds set out in their application in written submissions filed on 17 November 2003. In those written submissions, the applicants assert that the RRT fell into jurisdictional error in not applying the correct tests, in respect of the existence of persecution, and the availability of effective State protection against persecution.
The first applicant referred me to the decision of the Full Federal Court in Labara v Minister for Immigration [2002] FCAFC 145. In that case, the Full Federal Court found that the RRT had erred in not considering on a practical basis the availability of effective State protection by reference to particular harm suffered by the applicant. It appears from the report of that decision that the RRT had in that case accepted that the applicant had suffered some isolated incidents of harm but considered that those incidents did not amount to persecution. It also appears that the RRT found that effective State protection was available to the applicant by reference to country information (in that case in respect of Ukraine) but did not consider the availability of effective State protection in Ukraine in relation to the particular harm suffered by the applicant.
At paragraph 22 Their Honours stated: [check]
In Yusuf v Minister for Immigration & Multicultural Affairs (2001) 180 ALR 1, McHugh, Gummow and Hayne JJ observed (at [82] to [84]) that a jurisdictional error may be revealed in circumstances where a Tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as to affect the exercise of its powers, relevantly breaching s 476(1)(b), (c) or (e) of the Act. In this case, such jurisdictional error is, in our view, revealed. The Tribunal failed to consider the right question, namely, whether, in a practical sense, the State was able to provide protection particularly in light of the pervasive pattern of harm. That question related directly to whether the appellants' fear of persecution was well-founded and ultimately relevant to their application for a protection visa. Thereby the Tribunal failed to interpret or apply correctly the relevant law.
As I raised with the first applicant, there is an important distinguishing feature between the facts in Labara and the facts in this case. In Labara the RRT had accepted that the applicant had come to physical harm by reason of the religion of the applicants. In this case, while the RRT accepted that the applicants had experienced some harm prior to the collapse of the Soviet Union, the RRT specifically rejected the applicant's claims of harm in Russia since the collapse of the Soviet Union.
On pages 156 and 157 of the court book the presiding member said:
Having regard to the inconsistency between the applicant's claims and post hearing documents and the independent evidence available to me I am of the view that the [first] applicant is not a credible witness. I am of the view that the applicant has exaggerated and fabricated her claims in order to enhance her claim to refugee status.
As I have already found, that credibility finding was reasonably open to the RRT on the material before it. It is true that there is some similarity of findings by the RRT in this case and in Labara on the question of the availability of State protection having regard to available country information. The countries are different. In Labara, it was Ukraine; in this case it is Russia; but there are nevertheless some similarity in the findings in their generality.
The problem in Labara was that the RRT needed to go from the general to the particular having regard to the claims of harm which the RRT accepted. In this case, I doubt that the RRT needed to consider the availability of effective State protection at all given that the RRT did not accept that the applicants had suffered harm since the establishment of the modern Russian State.
The discussion by the RRT of the availability of effective State protection necessarily could not extend beyond the general given that there was no accepted particular harm suffered by these applicants to consider. On that basis, I distinguish this case from the decision of the Federal Court in Labara.
There is a second distinguishing feature between the two cases. The decision of the RRT, the subject of the Federal Court's decision in Labara was made prior to the enactment of s.91R of the Migration Act 1958 (Cth) (“the Migration Act”) in its present form on 1 October 2001. The section in its present form was applicable to the decision of the RRT in this case. Section 91R(1) relevantly provides that, for the purposes of the application of the Migration Act and the regulations to a particular person, article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Act unless the persecution involves serious harm to the person and the persecution involves systematic and discriminatory conduct.
To the extent, therefore, that the Federal Court in Labara saw significance in a distinction drawn by the RRT between isolated conduct and systematic conduct for the purposes of the definition of persecution in the Convention, the issue has since been clarified by Parliament. I note that the decision in Labara has been taken on appeal to the High Court and a decision of the High Court has not yet been made. It may well be that the High Court will further clarify that issue. In this case it is unnecessary for me to await the decision of the High Court because this case is sufficiently distinguishable on its facts from the decision in Labara.
I find that there is no jurisdictional error in the decision of the RRT. Accordingly, I will dismiss the application.
On the question of costs, the applicants having been wholly unsuccessful and the Minister wholly successful, Mr Smith has sought an order for costs fixed in the sum of $5,500. The first applicant, on behalf of the applicants, does not oppose an order for costs in principle, but is concerned that she needs time to pay due to the applicants’ personal circumstances.
An order for costs should be made in this case in accordance with the general principle that costs follow the event. I will not impose any deadline on the payment of costs. The applicants can negotiate with the respondent's Department for that payment for costs. I will not make any costs order against the third applicant who is a child. Indeed no such order was sought.
The sum sought is, in my view, somewhat high. It is higher than the amount of costs I typically award in this jurisdiction in what I would describe as cases of average complexity. Mr Smith submits that this is a case outside the ordinary because of the particular legal issue raised in the applicant's written submissions. It was of course necessary for the respondent to consider and put submissions on the significance of the decision of the Full Federal Court in Labara. However, the action on the part of the applicants in directing their attention to that issue actually had the beneficial effect of confining the issues in dispute to a single issue, albeit an important one.
While some effort was called for on the part of the respondent to deal with that issue, in my view, a costs order fixed in the sum of $4,500 is all that is called for.
I will order that the application be dismissed and that the first and second applicants pay the costs and disbursements of the respondent, fixed in the sum of $4,500.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 10 December 2003
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