SZANF v Minister for Immigration
[2004] FMCA 379
•17 June 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZANF v MINISTER FOR IMMIGRATION | [2004] FMCA 379 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Ukraine – claim rejected by the RRT as not credible – no reviewable error found – application dismissed. |
Migration Act 1958 (Cth), s.417
Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407
| Applicant: | SZANF |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ745 of 2003 |
| Delivered on: | 17 June 2004 |
| Delivered at: | Sydney |
| Hearing date: | 17 June 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Mr P Braham |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ745 of 2003
| SZANF |
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 26 March 2003 and handed down on 16 April 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Ukraine and made claims of political persecution in that country. The relevant background facts concerning the applicant’s claims and the RRT’s decision on them are set out in paragraphs 2 through 9 of written submissions prepared on behalf of the Minister by Mr Braham. I adopt those paragraphs for the purposes of this judgment.
The applicant was born in the Ukraine. He recorded his occupation as “electrician” on his protection visa application.
The applicant claimed to have openly criticised the government of the Ukraine. Before the RRT he claimed to have been filmed speaking to a militia man criticising the government at a public meeting. He was not a member of any political party. He claimed that as a result of the views he expressed he was beaten by police and warned that he would be charged with criminal offences unless he ceased criticism of the government (court book, pages 6, 61). When released from detention “almost dead” he was thrown from a police car. The Ukrainian authorities harassed his family company.
He claimed that political opposition is not tolerated in the Ukraine (court book, page8).
He claimed that he feared imprisonment if he returned to the Ukraine. He had no political party apparatus to protect him.
The RRT’s decision
The RRT rejected the applicant as a witness of truth. It found that his claims were fabricated. It did not accept his account of being attacked by the police or security forces, nor did it accept that he held an actual fear of persecution.
The RRT noted that the independent country information suggested that political opponents and critics of the government are not persecuted (court book, pages 64-66).
Although the RRT accepted that there was political interference by the SBU, it found that the applicant was neither a businessman nor a politician, and accordingly would not be harassed.
The RRT thus rejected both the applicant’s subjective fear and his contention that any such fear was well founded.
The applicant relies upon his judicial review application filed on 5 May 2003. In that, the applicant provides the following grounds of review: first, all relevant country information available to the RRT was not assessed, and secondly that there is an error of law while applying definitions of “persecution” and “well-founded fear”. These grounds are not particularised and the applicant did not take up an opportunity I gave him initially to make oral submissions in support of his application, although he did make oral submissions following the presentation of submissions by Mr Braham.
Essentially, the applicant failed before the RRT because he was not believed. His claim of political persecution arose from an asserted incident during the 1999 elections in Ukraine when he made comments as a member of the public at a political rally which were recorded. The applicant claimed that these comments got him into trouble with the police who warned him and beat him up. He claimed that following this incident the Government caused problems with his and his father's business which destroyed the business and which, co-incidentally or otherwise, led to his father's death, apparently of natural causes. The RRT did not find the applicant's claims credible. The presiding member said, on page 62 of the court book:
I have rejected the applicant's claims. I do not accept the applicant is a witness of truth. He came to Australia to attend an underwater sporting event. I do not accept his claims he fled the Ukraine fearing persecution for speaking out at a pre-election rally nor do I accept that the police attacked and threatened him or that the SBU [the Ukraine Security Services] attacked and threatened him and his family. His claims are not supported by the independent evidence. This evidence does not suggest that citizens without any political profile who speak up at pre-election rallies are targeted by the Ukraine authorities.
It is apparent that the RRT had regard to country information concerning the political situation in Ukraine. Although it is not apparent from the decision and reasons of the RRT, the applicant confirmed in court today that this country information was discussed with him at the RRT hearing. Although his application for review contains a ground that all relevant country information available was not assessed, this was not particularised. The applicant told me in his closing oral submissions that his real concern was that the RRT was basing its decision upon country information rather than his individual circumstances. The applicant said that these circumstances were that, contrary to the presiding member’s finding, he was a high profile businessman in Ukraine. He told me that confusion arose because his work records indicated that he had been unemployed for an extended period and his occupation was shown as electrician. The applicant told me that the presiding member regarded him as a relatively unskilled worker who had been unemployed, whereas he had been managing and doing the accounts of his and his father's family company and had been self-employed rather than unemployed.
It is apparent from the decision record of the RRT that the presiding member was aware of the applicant's assertions, but did not accept them. The applicant before me today expressed concern that either he was not understood or his claims were not considered properly. On my reading of the decision of the RRT there is no apparent lack of comprehension on the part of the presiding member. The applicant's claims were not accepted, but the RRT was not bound to accept them. The applicant's concern that his claims were not dealt with individually on their merits is not supported by the decision record.
It appears to me that the conclusions reached by the presiding member on the applicant's claims were reasonably open to her on the material before her. As I explained to the applicant, if he contests the merits of the RRT decision, he has the opportunity to invite the Minister's intervention under s.417 of the Migration Act1958 (Cth). The applicant failed because he was not able to persuade the presiding member of the credibility of his claims. The applicant has not succeeded in establishing any jurisdictional error in the RRT proceedings. I accept in that regard paragraph 11 of Mr Braham's written submissions:
The RRT rejected the applicant’s evidence. It is the function of the RRT to hear and assess the applicant’s evidence, and a determination by the RRT on the applicant’s credit is generally unimpeachable on appeal. As was stated by McHugh J in Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 at [67]:
[A] finding on credibility … is the function of the primary decision-maker par excellence.
There is no jurisdictional error in the decision of the RRT. Accordingly, I must dismiss the application.
On the question of costs, the applicant having been wholly unsuccessful costs should follow the event. Mr Braham has submitted that I should fix costs in the amount of $4,500 on a party/party basis. The applicant did not wish to make any submissions. This was a relatively straightforward matter. A fair amount of preparation was required in order to prepare the court book. However, the legal issues were relatively simple. In my view, the estimate of $4,500 costs on a party/party basis is a little high in the context of this matter. I will order that the application be dismissed, and that the applicant pay the Minister's costs and disbursements of and incidental to the application which I fix in the sum of $4,000.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 24 June 2004
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