SZAJD v Minister for Immigration
[2004] FMCA 88
•4 March 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAJD v MINISTER FOR IMMIGRATION | [2004] FMCA 88 |
| MIGRATION – Review of RRT decision – where applicant alleged that he was persecuted because of his nationality and political associations – where applicant alleged that the authorities in his country of nationality had been informed of his application for protection in Australia – whether the Tribunal failed to consider this aspect of applicant’s claim – where Tribunal found that the applicant was not a credible witness. |
Migration Act 1958, s.91R
Perera v MIMA (1999) 92 FCR 6
SPKB v MIMIA [2003] FCAFC 296
Devries v Australian National Railways Commission (1993) 177 CLR 472
Kamal v MIMA [2002] FCAFC 818
Craig v South Australia (1995) 184 CLR 163
MIMA v Yusuf (2001) 206 CLR 323
Re MIMA; Ex parte Durairajasingham [2000] HCA 1
| Applicant: | SZAJD |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 546 of 2003 |
| Delivered on: | 4 March 2004 |
| Delivered at: | Sydney |
| Hearing date: | 18 February 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | Applicant in person |
| Counsel for the Respondent: | Mr S Lloyd |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is 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 546 of 2003
| SZAJD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant in this matter claims to be a person of mixed Armenian/ Azerbaijan descent. He claims that he was born in Armenia but his family moved into Azerbaijan at the time of the dispute between the two countries over the area of land known as Nagorno-Karabakh. He arrived in Australia bearing an Azabaijan passport on 25 December 2000. On 10 January 2001 he lodged an application for a protection (class XA ) visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 8 November 2001 a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs refused to grant a protection visa and on 4 December 2001 the applicant applied for a review of that decision. The Tribunal offered the applicant a hearing which appears to have been put off due to interpretation problems but was finally held on 25 November 2002. The tribunal made its decision to affirm the decision of the delegate on 25 February 2003 and handed that decision down on 14 March 2003.
The applicant’s claim to have a well-founded fear of persecution for the convention reason of nationality was based upon his mixed Armenian and Azeri descent. He claimed to have been expelled from university in Azerbaijan in 1989 because of his Armenian background but returned to the university in 1992. He completed his national service in February 1994 and claims that he then enlisted in the OMAN commander group under Rovshan Jaradov in the Azerbaijan Internal Affairs Department. At the Tribunal hearing this background information was subject to amendment so he only remained in the university from 1993.
“…he then claimed to have been dismissed from University in 1990. He claimed to have worked in Moscow from 1990 –1992 before returning to university in 1993. He had been able to do so when Abdul Faizl was elected in 1992 or 1993. He had been called up for active service in 1993 and had remained in the army until 1994. I put to him that he had earlier claimed he had deserted from the army because he had been forced to kill Armenians. He then claimed that he had been treated badly in the army and wanted to go into “passive” service. He had been recommended to go to OMAN which he had joined in 1994.”
In order to find a statement of the applicant’s subjective and objective fear of persecution it is necessary to turn to the original application where at [CB 16] he states:
“In January 1990 Soviet Communist Army invaded, attacked and killed thousands of innocent civilians including my neighbours and almost everybody in our area. I was in the midst of killing and I was lucky enough to survive the horrific killings.
Since then I have no security for my life. I live in the fear of being assassinated any day in my own home country.
I suffered a lot of racial discrimination. I was arrested and beaten up by Russian Police on multiple occasions for no reason at all.
I live my last few months where I could not even leave my home for several days in the fear of being persecuted. I was a soldier in the war until February 1994 at this time I returned back to Baku, Azerbaijan and enlisted in the OMAN (Commondo) group in the Azerbaijan Government’s Internal Relations Area. The leader of this group was Rovshan Jaradov. At this stage the whole of Azerbaijan was in the state of anarchy, everyone had guns and there was no control of law and order. Since October 1994 the forces of Haydar Aliyev attacked the headquarters of Rovshan Jaradov lead OMAN. Hundreds of soldiers and civilians were killed and put into jail. Most of the survivors out of Azerbaijan like myself with the fear of being killed.”
At [CB 34] there is a letter dated 15 September 2001 from the applicant’s migration agent:
“Applicant is positive that he will be persecuted by the Azerbaijani nationalists for the reason of his mixed ethnic origin because the Armenian-Azerbaijani conflict upon Nagorno Karabah has not been finalised. The attitude towards individuals of Armenian or mixed Azeri-Armenian origin still remains hostile. Although he is Azerbaijan national he has a distinctive Armenian accent in his spoken Azerbaijani language. This fact makes him an easy target for the Azeri nationalists.”
The applicant also claimed to have an association with Boz Gourd the Azerbaijan Democracy Party which he alleged had had to go underground. However the applicant submitted a letter from that organisation to the Tribunal written in English which gave an address in Baku City with a telephone, fax number and an e-mail.
The applicant sent a letter to the Tribunal dated 8 February 2003 [CB 63] indicating that a person who had proclaimed himself to be a leader of the local Azerbaijan community in Australia had informed on him to the Azerbaijan authorities in relation to his application for asylum:
“As a result of his actions my wife was contacted by officers of the Azerbaijan law enforcement agencies and was asked about my whereabouts. She was openly told by these officers that the Azerbaijan law enforcement authorities have received an information from Mr Imametin Kasymov from Australia regarding my claims for Protection Visa.
I am positive that in a view of the above mentioned circumstances I definitely will be persecuted even more seriously if I go back to Azerbaijan.”
The Tribunal produced within its reasons independent evidence from the United States State Department 1993 Human Rights Report which detailed the events of March 1995 when the OPON staged an uprising in which political demands were put forward [CB 73] – [CB 76]. The Tribunal also produced an extract from a Danish Report that the force known as OMON had changed its name to OPON on independence and also detailed certain events which took place in October 1994. [CB 77]
The Tribunal’s findings and reasons [CB 78-79] were short and are reproduced below.
“For the reasons which follow, the Tribunal is satisfied that the applicant has fabricated his claims in the hope of ensuring success in his application for a protection visa.
The applicant’s claims at the primary stage and before the Tribunal often conflicted. His claimed expulsion from university on ethnic grounds appears to have occurred at the time he was called up for national service.
I do not accept that the applicant was at any time a member of the OMON. OMON was the name of the police militia during the Soviet era. According to the Danish Report, its name changed after independence. The applicant did not appear to be aware of this name change, and told the Tribunal that one denoted police and the other militia. The applicant prevaricated and was unable to give a reasonable answer when questioned about the circumstances of his joining the organisation. His reason, that he wanted a passive role, does not accord with the active nature of the organisation as described in the independent evidence. He was also unable to describe in detail the events of October 1994 from which he claimed to have fled to Russia. I do not accept the faxed submission on his behalf allegedly from the Boz Guord leadership, which he claimed was in hiding when it is evident that it has an official address in Baku. I do not accept that he was unaware of the circumstances in which his passport was obtained. His signature was similar to that on his protection visa application.
The applicant has spent most of his time in Russia since 1990. The Danish Report at p.39 mentions an extradition agreement between Azerbaijan and Russia signed in 1994 under which several OPON members had been returned. If the applicant was of interest to the Azerbaijan authorities for reason of his membership of the organisation, it is unlikely that he would have been able to stay in Russia for such extensive periods. I am aware that Caucasians are sometimes discriminated against in Russia, but the applicant has not claimed that he suffered any persecution in the Convention sense for reason of his mixed ethnicity, either in Azerbaijan or in Russia.
I am not satisfied that the applicant has a well-founded fear of persecution for reason of his imputed political opinion.”
In the application the grounds were stated as:
1. The Tribunal had fallen into overlooking various parts of my evidence and ignoring important aspects of my evidence as a result of this errors the Tribunal errored in determining whether I have a well-founded fear within the meaning of the Convention.”
No particulars of these claims were provided. At the hearing before me the applicant appeared on his own behalf. He indicated that he might have some difficulty with the Russian interpreter. Although this did not appear to be the case it was arranged that his brother who was also in Court and who claimed to have a better understanding of Russian than the applicant would sit with the applicant and interpretation would move from the interpreter to the brother in Russian and from the brother to the applicant in Armenian. This appeared to have happened and no further complaint concerning interpretation was made. The applicant told me that he did not trust the Tribunal and that their decision was not good because they made decisions depending upon their mood. If they were in a good mood they would give a positive result. The applicant told me that his family have problems in Azerbaijan because of their accents and because his mother was Armenian. His family was not allowed to live in peace. He stated that his mother had been sent back to Armenia although that piece of evidence does not appear to have been given to the Tribunal. He also suggested that there might have been a problem with the Tribunal in not understanding him or not understanding the nature of the problems that existed between Armenia and Azerbaijan. He thought that this was unfair to him. He stated that he had been forced to go into the army and that there was more trouble after he had enlisted in OMON. He said that he had to run away because if he had stayed he would have been killed. The applicant told me that he ran to Russia where he lived for some years without documents or a passport. However, after the Chechyna war it became impossible to live in Russia. He said that then he had paid money to obtain a passport and a visa to Australia.
The applicant also reminded me that he had been reported on back to Azerbaijan and that all the information which he had given to the so-called leader of the community had been sent over there. He said that his family and children had been interrogated for a long time and that the Tribunal had closed its eyes to this fact. In his final statement to me after Mr Llyod had addressed me the applicant complained about the types of questions the Tribunal had asked him and the failure of the Tribunal to comprehend the case that was being put to it.
The respondent’s argument was that at [CB 71-73] the Tribunal provided a reasonable summary of the claims made by the applicant and at [CB 73-77] it set out its country information about Azerbaijan and OMON. The approach of the Tribunal was that it did not believe the applicant was presenting a true claim about this circumstance and that he had fabricated his claim. The Tribunal had provided evidence upon which those findings could be made, namely the applicant’s lack of knowledge of the organisation that he had claimed to have joined, his prevarication and the illogical nature of some of his claims. The Tribunal also noted that he had not been extradited from Russia and was therefore not a person of interest to the Azerbaijan authorities. These matters, the Respondent argued were all matters of credibility which were matters for the Tribunal “par excellence”.
The respondent also argued that to the extent that the applicant was making a claim about unsatisfactory interpretation there was no evidence before the court from which the necessary inferences could be drawn to his being a case within the dicta of Kenny J in Perera v MIMA (1999) 92 FCR 6.
In regard to the findings on credibility I note that in SPKB v MIMIA [2003] FCAFC 296 the Full court approved of the dicta of Brennan, Gauldron and McHugh JJ in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479:
“A finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside merely because the appellate court thinks that the probabilities of the case are against – even strongly against- that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of a witness, the finding must stand unless it can be shown that the trial judge has failed to use or has culpably misused his advantage …”
In Kamal v MIMA [2002] FCAFC 818 Mansfield J said at [36]:
“It is not for the Court, on reviewing a decision of the Tribunal, to form its own view as to whether it would have given the perceived inconsistencies the significance attributed to them by the Tribunal or upon any such view to conclude that the Tribunal’s assessment of the applicant’s claims should not have been made. Those evaluative processes are for the Tribunal.”
It seems to me clear that there is sufficient evidence from the applicant and the country information from which the Tribunal could draw its conclusions as to his credibility. The Tribunal might also have said that the applicant offered no real evidence of the serious persecution required by s.91R Migration Act 1958.
The applicant was concerned that the Tribunal did not appear to have made any determination about the claims arising from the information allegedly passed to the Azerbaijan authorities by the alleged leader of the community in Australia. If it did not consider those claims then it could be argued that the Tribunal had failed in its duty by not taking into account relevant information. Craig v South Australia (1995) 184 CLR 163; MIMA v Yusuf (2001) 206 CLR 323. The respondent argues that a finding that:
“The Tribunal is satisfied that the applicant has fabricated his claims in the hope of ensuring success in the application for a protection visa”
encompasses all the claims referred to by the Tribunal in its reasons for decision. The claim regarding the information coming from Australia was made and referred to and there is no need for the Tribunal to undertake a “line by line refutation”: Re MIMA; Ex parte Durairajasingham [2000] HCA 1 at [65]. I think I am entitled to draw this inference from the manner in which the Tribunal has addressed the applicant’s claims and would propose to do so.
In all the circumstances there are no grounds upon which I could grant review of this decision. The application is dismissed. I order that the applicant 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.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM
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