SZAPR v Minister for Immigration - [2004] FMCA 290

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAPR v MINISTER FOR IMMIGRATION

[2004] FMCA 290

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming ethnic persecution in Ukraine – claims rejected on credibility grounds – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), s.424A

Randhawa v Minister for Immigration (1994) 50 FCR 437

Applicant:

SZAPR

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ837 of 2003

Delivered on:

6 May 2004

Delivered at:

Sydney

Hearing date:

6 May 2004

Judgment of:

Driver FM

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent:

Mr G Kennett

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 $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ837 of 2003

SZAPR

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 28 March 2003 and handed down on 17 April 2003. The RRT affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.
The applicant is from Ukraine and made claims of persecution based upon his Roma ethnicity. The relevant background facts are set out in written submissions prepared by Mr Kennett on behalf of the Minister. I adopt paragraphs 1 through to 5 of those submissions for the purposes of this judgment:
The applicant is a national of Ukraine (court book, page 84) who arrived in Australia on 15 September 2000. He applied for a protection visa on 27 October 2000 and that application was rejected by a delegate of the Minister on 13 June 2001. On 4 July 2001 the applicant applied to the RRT for review of that decision.
On 28 March 2003 the RRT handed down its decision, affirming the decision of the delegate.
The applicant claimed that he had experienced many incidents of violence and discrimination, from which State authorities had not protected him, because of his ethnicity (Roma). The RRT did not accept that he was of Roma ethnicity (court book, page 84) or that he had experienced any such harm (court book, page 86).
The RRT also considered that, even if the applicant was a Roma and had suffered the harm he claimed, his problems were specific to his home town and could be avoided by relocating elsewhere in Ukraine. It found that relocation would be a reasonable option given his training, experience and circumstances (court book, page 86).
Accordingly, the RRT was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention (court book, page 87).
The applicant relies upon his application filed on 14 May 2003. On 16 June 2003, the applicant was ordered to file and serve any amended application and any additional evidence upon which he intended to rely on or before 1 September 2003. He has not filed anything further. He was also ordered to file and serve an outline of submissions within five working days of today's hearing date. That order has not been complied with.
The first ground of the application is simply an unparticularised assertion of jurisdictional error. The only error identified in the second ground is a finding by the RRT that the applicant could relocate to avoid persecution. Mr Kennett deals with the application at paragraphs 6, 7 and 8 of his written submissions. I agree with those paragraphs and adopt them for the purposes of this judgment:
The application (filed on 14 May 2003) sets out two grounds. The first merely asserts error by the RRT. The second ground (which was possibly intended as an explanation of the first) asserts that the RRT erred “by assuming that the relocation to another part of Ukraine would be reasonable option to avoid future persecution”.
There are two answers to this second argument. The first is that the RRT did not make any assumption of the kind alleged. It made express findings that (a) the applicant could avoid his problems by relocation within Ukraine, and (b) relocation was a “reasonable option”. It gave reasons for both findings. Its treatment of the relocation issue was consistent with relevant authority.[1] Secondly, issues of relocation arose only if the RRT was wrong in its primary reasoning – which constituted a wholesale rejection of the applicant’s claims at a factual level. The validity of the RRT’s decision, in so far as it depends on that reasoning, has not been challenged.
More broadly, no error of a legal kind can be seen in the RRT’s reasoning. The RRT rejected the applicant’s claims at a purely factual level, for reasons which it set out and which were based on the material before it.
[1] Randhawa v Minister for Immigration (1994) 50 FCR 437.
I invited the applicant to make oral submissions to me. He told me that he understood that he lost his case before the RRT because he could not produce documents to prove his Roma ethnicity and because he did not look like a Roma person. To some extent that is true. The RRT rejected the application on the basis of a credibility finding that the applicant is not Roma and did not suffer any persecution on the basis of that ethnicity. The RRT placed significance on the fact that the applicant was unable to produce basic documents that might support his claim of Roma ethnicity. His explanation for his inability to produce basic documents was not persuasive.
The presiding member had resort to country information in order to reject the applicant's explanation for his inability to produce documents. It is unclear from the court book whether that country information was revealed to the applicant prior to the RRT decision. The presiding member does not refer to any discussion about it in his reasons. No notice was issued under s.424A of the Migration Act 1958 (Cth) (“the Migration Act”).
In the circumstances, there is at least the possibility under the general law that there was a breach of the rules of procedural fairness. On the state of the evidence before me, I am unable to conclude on the balance of probabilities that the particulars of the country information were not raised with the applicant prior to the decision. It was open to the applicant to produce evidence and he has not done so. Indeed, he did not, in his application or in his oral submissions, raise any issues of procedural unfairness. Further, the presiding member did not rest with a rejection of the applicant's claims on credibility grounds. He went on to consider what the position would be if the applicant's claims were true. The presiding member found that the applicant's asserted problems were localised. The presiding member found that it was open to the applicant to relocate in order to avoid those asserted problems. The presiding member found that the applicant does not have the obvious appearance of a Roma person and would probably not be identified as Roma by someone who did not know him. Those conclusions were reasonably open to the RRT on the material before it.
Even if I am wrong and there is jurisdictional error in the decision of the RRT, I would decline to grant relief on the basis of futility. The applicant's claims of persecution were weak and unconvincing. He had ample time to present to the RRT material to support his claims. He was able to produce very little. The applicant's claims, unlike good wine, do not improve with age. In my view, a further consideration of his claims by the RRT would lead to the same result.
I will dismiss the application.
On the question of costs, costs should follow the event. Mr Kennett has told me that the Minister's costs are in the order of $4,000 on a solicitor/client basis. On a party/party basis an appropriate order for fixed costs would be in the sum of $2,500. The applicant did not wish to make any submissions on this issue.
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 $2,500.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 11 May 2004