SZAIE v Minister for Immigration

[2004] FMCA 7

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAIE v MINISTER FOR IMMIGRATION [2004] FMCA 7

MIGRATION – Review of RRT decision – whether applicant had well-founded fear of persecution by reason of his Jewish background – where applicant challenging view of RRT that he had effective state protection – where applicant claimed that RRT decision was flawed in that it only considered “theoretical” protection and not whether he would be afforded effective protection – where country information considered indicated an improvement in situation in home country.

Labara v Minister for Immigration & Multicultural Affairs [2002] FCAFC 145
Prahastono v MIMA (1997) 77 FCR 260
MIMIA v Kord (2002) 125 FCR 68
A v MIMA (1999) 53 ALD 545
Applicant A v MIEA (1997) 190 CLR 225
Abebe v The Commonwealth (1999) 197 CLR 510
MIMA v Prathapan (1998) 86 FCR 95

Applicant: SZAIE

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 472 of 2003

Delivered on: 14 January 2004

Delivered at: Sydney

Hearing date: 7 January 2004

Judgment of: Raphael FM

REPRESENTATION

Counsel for the Applicant: Applicant in Person

Counsel for the Respondent: Mr T Reilly

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. Application dismissed.

2. Applicant to pay the Respondent’s costs assessed in the sum of $4,500.00 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 472 of 2003

SZAIE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant in this matter is a citizen of the Ukraine. He arrived in Australia as a temporary business entrant in November 2000 and applied for a protection (class XA) visa on 3 January 2001. A delegate of the Minister declined to grant him a protection visa on 23 March 2001. The applicant sought review from the Refugee Review Tribunal which interviewed the applicant and made a decision to affirm the decision of the delegate on 10 February 2003 handing it down on

   
   

   4 March 2003.

2. In his application for judicial review to this court the applicant states:

   “1. The Tribunal erred in determination whether I had a well founded fear of persecution for the reasons of my ethnicity.

   2. The tribunal fell into error by not accepting that the Ukrainian authorities will fail to provide me with a level of protection against anti-Semitic acts sufficient to remove a real chance of being persecuted if I return to Ukraine now.

3. The applicant claimed that he had, or was imputed to have, Jewish ethnicity. He was born in the town of Ternopil to parents one of whom, his father, was most certainly not Jewish. The applicant stated that his maternal grandmother was Jewish and that therefore he was Jewish by descent through the maternal line. The applicant, noting that the decision of the delegate had been made against him on the grounds that he was entitled to exercise his rights under the Law of Return 1950 as amended in 1970 by the Israeli Knesset, produced a certificate of baptism. He argued that this certificate made him a convert to another religion and as such a person who was not entitled to the benefits of the Law of Return.

4. The Tribunal did not decide the matter on the basis of the applicant’s right to emigrate to Israel, rather it noted the existence of the baptismal certificate and the fact that his grandmother, the only person he claimed had any knowledge of Jewish religious practices or teachings had signed the document as the applicant’s god parent.

5. The applicant claimed that he had left the Ukraine for fear of being persecuted by reason of his Jewish background. He stated that he had been the victim of abuse and attack all his life caused by the anti-Semitism that traditionally existed in Ukrainian society. He claimed to have been attacked on many occasions by members of Ukrainian ultra nationalistic organisations like UNA-UNSO. He said that his home had been vandalised and he had received threats by telephone and mail. He told the Tribunal that he lost his job in July 1999 and that all his attempts to find a job since had failed. He believed that his inability to find a new job was influenced by his Jewish identity. He claimed that the only way for him to avoid permanent abuse and attacks had been to flee the Ukraine.

6. The applicant was closely questioned by the Tribunal as to his Jewish identity, his connections with other Jews in the Ukraine and in Australia, and the attacks allegedly made upon him whilst in the Ukraine and the reaction of the Ukrainian authorities to those attacks. The Tribunal put to the Applicant a considerable amount of the Country Information concerning the existence of anti-Semitism in the Ukraine and the steps being taken by the Government to deal with it. The Tribunal pointed out that Jews formed the second largest ethnic minority after ethnic Russians in the Ukraine and that there had been a resurgence of Jewish religious and cultural institutions within the Republic. It now boasted 12 Jewish day schools and 50 synagogues compared with 12 in 1990. A Jewish university had been founded in Kiev, there were two Jewish theatres and a number of Jewish newspapers. More than 15 Jews had been elected to the Ukrainian Parliament in the elections held on 31 March 2002. The Tribunal set out the course it proposed to adopt with regard to consideration of the applicant’s ethnicity and CB [104] where it said

   “ In the present case the Applicant claims that, after Ukraine became independent in 1991, he was subjected to constant abuse and attacks by reason of his claimed Jewish background. Despite the Applicant’s assertions at the hearing before me that ‘our roots and background are all Jewish’, his background is in fact mainly Ukrainian. He traces his Jewish ancestry through his maternal grandmother but the only documents he has produced bearing on the question of his maternal grandmother’s background are the certificate indicating that her maiden name was Urberg (which is in itself equivocal) and his baptism certificate, indicating that his maternal grandmother acted as his godmother when he was baptised into the Russian Orthodox Church in 1987. Neither the Applicant nor his family maintained any Jewish customs or traditions and the Applicant has not apparently made any attempt to learn something of these traditions despite his professed identification as a Jew. Nevertheless, I do not consider that I can find with confidence that the Applicant is not Jewish, or at least that he could not have been perceived as Jewish, on the basis that his maternal grandmother was Jewish, as he claims, or that he associated with Jewish people. I have therefore assessed whether the Applicant has a well-founded fear of being persecuted for a Convention reason on the basis that it is possible, although not certain, that he is Jewish and that he was perceived by people in Ternopil as Jewish: see Guo and Rajalingam, referred to above, and Rajasundaram v Minister For Immigration and Multicultural Affairs (1999) 51 ALD 682.”

7. At CB[105] the Tribunal made some findings concerning the situation prior to 2000 when it stated

   “I accepted that Western Ukraine was the centre of anti-Semitism in Ukraine (US State Department, Bureau of Democracy, Human Rights and Labor, Ukraine – Profile of Asylum Claims and Country Conditions, June 1997, Section III.A, Claims Based on ‘Nationality’: Jews; US State Department, Country Reports on Human Rights Practices for 1999 in relation to Ukraine, Section 5, Discrimination Based on Race, Sex, Religion, Disability, Language, or Social Status – Religious Minorities) and that in several Ukrainian cities, including the Applicant’s home town of Ternopil, local groups had erected monuments and plaques glorifying the Ukrainian SS and main thoroughfares had been renamed after Ukrainian nationalist leaders whose ideology included anti-Semitism (Research Directorate, Documentation, Information and Research Branch, Immigration and Refugee Board of Canada, Ukraine: The situation of ethnic minorities, September 1993, section 5.4, Anti-Semitism). I also accepted, based on evidence I had taken at a previous hearing (in relation to another application for review before this Tribunal) from Rabbi Yoram Ulman, the Spiritual Leader of the Chabad Lubavitch Congregation of the Russian Jewish Community in Sydney (see my decision No. N94/04768, signed on 23 December 1999), that official sources understated the problem of anti-Semitism in Ukraine because Jewish community leaders were afraid to make public statements which might jeopardise their relationship with government authorities.”

8. The essence of the Tribunals decision is contained in the extracts from its reasons for decision set out below: see CB [108] – [109]

   “Overall there is a dearth of independent evidence which would support the Applicant’s claims that he was constantly physically attacked in his home town of Ternopil in Ukraine by reason of his Jewish background. I accept that, as referred to above, such anti-Semitic incidents as have occurred in recent years in Ukraine have been concentrated in Western Ukraine, but I note in this connection that the Applicant made no attempt to move to some other part of Ukraine despite his claim that he was constantly being physically attacked in Ternopil. I accept that, as the Australian Department of Foreign Affairs and Trade noted in its advice in July 2002, Jewish people in Ukraine encounter less serious forms of anti-Semitism (such as mild forms of verbal abuse) in everyday life (DFAT Country Information Report No. 235/02, dated 24 July 2002, CX66198). However I consider that such conduct fails short of persecution involving ‘serious harm’ as required by paragraph 91R(1)(b) of the Migration Act. I do not accept that there is a real chance that the Applicant will be persecuted by reason of his race (Jewish) if he returns to Ukraine now or in the reasonably foreseeable future.”

   “There is no suggestion that the Ukrainian Government encourages anti-Semitism or the persecution of Jews. To the contrary, the evidence is that anti-Semitism has no place in government policy and that, as I put to the Applicant, the Government has protected the rights of the Jewish Community (US State Department, Bureau of Democracy, Human Rights and Labor, Ukraine – Profile of Asylum Claims and Country Conditions, June 1997, Section III.A, Claims based on ‘Nationality’: Jews). The independent evidence likewise does not suggest that the Ukrainian authorities provide the Jewish community with a level of protection sufficient to remove a real chance of persecution. … [the Tribunal here cited evidence that up until 2000 the Government did not take effective action against anti-Semitism]

   However, as I put to the Applicant in the course of the hearing before me, in its most recent annual report on human rights in relation to Ukraine the US State Department said that societal anti-Semitism persisted but that during 2001 there had been a continued decrease in anti-Semitic acts and anti-Semitic publications in local newspapers and an increase in government action against anti-Semitism (US State Department, Country Reports on Human Rights Practices for 2001 in relation to Ukraine, Section 5, Discrimination Based on Race, Sex, Religion, Disability, Language, or Social Status – Religious Minorities).

   
   

   …I do not consider that I can reject the Applicant’s evidence regarding the response of the police when he reported the attack on him which he claims occurred on 24 August 2000, namely that his complaint was dismissed with the statement that ‘lots of Jews are being attacked all over the place’. As the Australian Department of Foreign Affairs and Trade said in its advice in July 2002:

   ‘Given the motivation and circumstances of individual law enforcement officers may vary widely, it is plausible that in some individual cases discrimination or harassment of minorities is ignored. There is, however, insufficient information to conclude that such behaviour is systematic in nature.’ (DFAT Country Information Report No. 235/02, dated 24 July 2002, CX66198)

   Having regard to all of the evidence before me regarding the attitude of the Ukrainian authorities towards anti-Semitism and the increased action they have taken in recent years against anti-Semitism, I do not accept that the Ukrainian authorities will fail to provide the Applicant with a level of protection against anti-Semitic acts sufficient to remove a real chance of his being persecuted if he returns to Ukraine now or in the reasonably foreseeable future.”

9. At the hearing before me the Applicant was self-represented. He appeared to have given consideration to his situation and made the following complaints about the Tribunal’s decision. He argued that the Tribunal had only looked at what he described as the “theoretical side” of the situation in Ukraine and not what he described as the “practical side”. In his response to Mr Reilly he stated that what he meant by this was that the Tribunal only looked at the legislation and not what really occurred. In other words he appeared to be arguing that whilst the laws of the Ukraine might have outlawed anti-Semitism and provided for effective state protection against its occurrence the reality was quite different. He argued that in this context there could be no guarantee of effective state protection.

10. The Applicant relied heavily on the decision of the Full Bench in Labara v Minister for Immigration & Multicultural Affairs [2002] FCAFC 145. That was a case involving a Jehovah’s witness from the Ukraine. The Applicant relied upon the use of the term “in the practical sense” found in the following extracts

    “ [21] There was no specific consideration of the State’s ability, in a practical sense, to provide protection

    [22] The Tribunal failed to consider the right question namely, whether, in a practical sense, the State was able to provide protection particularly in the 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.”

11. In my view, the Tribunal in the instant case did not fall into the error identified by the Full Court in Labara. It utilised (and put to the Applicant) country information that clearly indicated an improvement in the situation which enabled it to come to the conclusion found at CB [111] and set out at [8] above. This distinguishes the case from Labara which was decided on its own particular facts and makes no general statement about the situation in the Ukraine.

12. This leaves the Applicant with his general complaints about the Tribunal’s non-acceptance of his evidence about the real position in Ukraine and his claim that the State could not guarantee him protection. Whether conduct is sufficiently serious to constitute persecution is an issue of fact and degree for the Tribunal alone; Prahastono v MIMA (1997) 77 FCR 260 at 269, 271; MIMIA v Kord (2002) 125 FCR 68 at [3,56] The Tribunal’s conclusion based on independent country information that effective protection was available to the Applicant in Ukraine was also a factual matter for the Tribunal. The Tribunal’s finding that the existence of State protection in the Ukraine was sufficient to render the Applicant’s fears not well-founded is a factual matter for it: A v MIMA (1999) 53 ALD 545 at [54]. In the absence of a finding that a State is unable or unwilling to protect the Applicant, he cannot establish a well-founded fear of persecution : Applicant A v MIEA (1997) 190 CLR 225 at 233 per Brennan CJ, 257-8 per McHugh J.

13. Even if the Applicant was correct in saying that the Tribunal erred in finding that State protection was available in the Ukraine this is a finding of fact which constitutes no error of law, let alone a jurisdictional error; Abebe v The Commonwealth (1999) 197 CLR 510 at [137]. Finally it is well settled that a State does not have to provide an applicant with a guarantee of protection; MIMA v Prathapan (1998) 86 FCR 95 at 104.

14. I am unable to find that the Tribunal has, in this case, fallen into any jurisdictional error and I am therefore unable to grant the Applicant review of the decision. I dismiss the application and I order that the Applicant shall pay the Respondent’s costs which I assess in the sum of $4,500.00 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: