SZARR v Minister for Immigration
[2007] FMCA 2
•22 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZARR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 2 |
| MIGRATION – Review of Refugee Review Tribunal decision – applicant claiming persecution in Russia – applicant the victim of a rogue state official – Tribunal found that effective State protection was available against the risk of future harm – no reviewable error found – application dismissed. |
| Minister for Immigration v Khawar (2002) 210 CLR 1 |
| Applicant: | SZARR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG71 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 18 October 2006 |
| Date of last submissions: | 30 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 22 February 2007 |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondents: | Mr G Kennett |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Court directs that the name of the first respondent be amended to the “Minister for Immigration and Citizenship”.
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG71 of 2005
| SZARR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 17 December 2004. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Russia and had made claims of political persecution. I adopt the following statement of background facts from the Minister’s outline of written submissions filed on 31 August 2006.
The decision under review
The applicant, a citizen of Russia, arrived in Australia in January 2001 and applied for a protection visa on 27 February 2001. His application was refused by a delegate of the Minister on 5 June 2001, and on 9 July 2001 he applied for review of that decision by the Tribunal.[1]
[1] Relevant Documents (RD) 130.
The Tribunal handed down a decision, affirming the decision of the delegate, on 6 May 2003.[2] However, that decision was set aside by this Court, by consent, on 25 August 2004.[3]
[2] RD 56.
[3] RD 119.
The decision now under review was handed down by the Tribunal on 17 December 2004,[4] following the reconstitution of the Tribunal and the holding of a further hearing.
[4] RD 129.
Briefly, the applicant claimed that he had been attacked and threatened by people acting on behalf of the authorities in Russia, following his involvement in a fledgling political movement that had organised two demonstrations in 1994. He had not been involved in any political activity since then, but feared further harm having encountered a FSB (state security) officer who had stabbed him in 1994 (and served a prison sentence in the interim). In his application to the Tribunal he added that he feared persecution on two further bases: that he was perceived as Jewish, and that he was perceived as being homosexual.
The Tribunal accepted a number of the applicant’s claims, namely:
a)that his father was killed by a drunken driver in 1981 and that the driver escaped sentence because he was the son of a party official;[5]
b)that he had been expelled from college in 1986 for organising a protest;[6]
c)that he had been one of the organisers of a demonstration in May 1994 and had been taken into custody for a day;[7]
d)that he had been bashed by two unknown persons while returning home;[8]
e)that he and his friends had staged another meeting a few days later (and he had not been involved in political activity since then);[9]
f)that in June 1994 he had been attacked by two assailants and one (G), who was a captain in the FSB, stabbed him twice;[10]
g)that one of his friends who had been involved in organising the demonstrations had been involved in a car accident in August 1994.[11]
h)that the attack was prompted by his involvement in political activity;[12]
i)that G was released after two years in prison and reinstated in the FSB;[13] and
j)when the applicant tried to lodge a statement with the police about his encounter with G after the latter’s release, they refused to accept it and claimed he was suffering from a persecution complex.[14]
[5] RD 152.1.
[6] RD 152.4.
[7] RD 152-153.
[8] RD 153.3.
[9] RD 153.7.
[10] RD 153.9.
[11] RD 152.2.
[12] RD 153.4.
[13] RD 155.4.
[14] RD 155.6.
However, this was not sufficient to convince the Tribunal that the applicant had a well founded fear of future harm on grounds of political opinion. In relation to each of the claims referred to above, the Tribunal explained why it did not think that acceptance of the claim led to the conclusion that the applicant’s overall claim to fear persecution was well founded. In summary, the Tribunal was not satisfied that incidents which had occurred in the 1980s, before the fall of the Soviet Union, provided any basis for a fear of future persecution;[15] that federal authorities (as opposed to local administrators) had had any interest in the applicant in 1994 or since;[16] or that the authorities were unable or unwilling to protect the applicant from violent attack.[17] In the light of country information, the Tribunal did not accept that there was a real chance that the applicant would be persecuted for expressing his political views in Russia.[18]
[15] RD 152.
[16] RD 153-155.
[17] RD 153, 154.
[18] RD 151.9.
The Tribunal did not find the additional claims based on perceived Judaism and homosexuality plausible.[19]
[19] RD 155-158.
The judicial review application
The present proceeding began with an application filed on 11 January 2005. The applicant now relies upon an amended application filed on 11 May 2005. In that amended application the following grounds are raised:
(a) The Tribunal did not accept that “the Federal Security Service (FSS) would have set out to eliminate the applicant” [p.22]. In making the finding the Tribunal took into account the US State Department, Bureau of Democracy report issued in 1997 (according to the report, “with the expiation of a few high profile critics of the security or military service, individuals were not mistreated for participation of these political grounds…”).
(b)It appears that the Tribunal misconceived the whole notion of the applicant’s case. The concept of the case is that the applicant and his comrades were actively involved in setting up a political establishment. Their main purpose was to attract public attention and to become a registered political force in the region. Contrary to the Tribunal, they were subjected to persecution by authorities (not by the FSS) due to the active role their group had begun to play in the region (not because of “his involvement in two demonstration”) [p.22 of the decision]).
(c)If it was established that the authorities had been the only force behind the persecutor(s) then the source of information (ie the US State Department, Bureau of Democracy report) the Tribunal relied upon is to be regarded as “irrelevant material”. See Craig v South Australia (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at 17.
(d)Thus, the “relevant material” would be the US Department of State Report on Human Rights Practices (or any other report which deals with the issue of “human rights abuses”).
According to the US Department of State Report
(i) law enforcement and correctional official tortured and severely beat detainees and inmates;
(ii) there were credible reports of deaths or suicides as a result of abuse, with sharply divergent statistics offered by the Ministry of Defense and human rights groups;
(iii) arbitrary arrest and detention remained problems;
(iv) police and other security forces in various parts of Russia continued their practice of human rights abuses;
(v) the Government made little progress in the implementation of constitutional provisions for due process, fair and timely trial, and humane punishment;
(vi) the judiciary was often subject to manipulation by political authorities and was plagued by large case backlogs and trial delays;
(vii) institutions such as the Ministry of Internal Affairs remain largely unreformed and have not yet adopted practices consistent with law enforcement in a democratic society;
(vii) while most abuses occur at lower levels and not by central direction, Government officials do not investigate the majority of cases of abuse and do not dismiss or discipline the perpetrators.
(e)Furthermore, notwithstanding the Tribunal reference to the fact that the Governor of Voronez region is a former Federal Security Service officer, it did not go any further and did not give weight to the special features of the region (namely that the “regional authorities remained pro-Communist”, and that “there were no any political rallies prior to their demonstration” etc.
(f)The Tribunal failed to consider material which was relevant in determining the applicants’ claims, wrongly misconstrued the concept of “persecution” set out in s.91R of the Migration Act and, and thus failed to accord procedural fairness and natural justice to the applicants.
(g)In Craig v South Australia (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179 it was stated that the Tribunal exceeds its power, and thus commits a jurisdictional error, if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material, or, in some circumstances, makes erroneous findings or makes a mistaken conclusion in a way that affects the exercise, or purported exercise, of the Tribunal’s power.
(h)The Tribunal’s failure to assess the applicant’s case against relevant information constitutes a jurisdictional error.
(i)In all the circumstances it is appropriate to grant a declaration that the Tribunal’s decision is invalid and issue a writ of certiorari quashing and setting aside the decision. The matter should be remitted to a differently constituted Tribunal to be determined in accordance with the law.
The evidence
The only evidence I have before me is the book of relevant documents filed on 4 February 2005. The applicant was given the opportunity in consent orders made by a registrar on 24 January 2005 to file affidavit evidence but he has not taken up that opportunity.
Submissions
In his written submissions filed on 31 August 2006 the Minister deals with the grounds of review in the amended application. In essence, the Minister contends that a fair reading of the Tribunal decision and reasons leads to a conclusion that none of the grounds of review advanced by the applicant have any substance. The Minister contends that, at worst, it might be argued that the Tribunal misconstrued some of the applicant’s evidence and that such a simple error of fact does not constitute jurisdictional error.
I explored the applicant’s contentions with him during oral argument at the trial of this matter on 18 October 2006. The applicant contends that the Tribunal made two serious mistakes. He described the first as the use of irrelevant information, namely a US State Department Bureau of Democracy report referred to at RD 150. Secondly, the applicant contends that the Tribunal misunderstood his claim of past political persecution because it failed to distinguish between his role as a “political organiser” and a mere participant. It transpired that, properly understood, the applicant’s claims amount to the proposition that his situation was distinguishable from the general position dealt with in the US State Department report and that the Tribunal failed to appreciate the distinction. The applicant contends that his claim was that he had a high political profile in his local area and that this placed him at greater risk than ordinary political participants. The applicant contends that there was a constructive failure on the part of the Tribunal to deal with his claims as they were put, or as should have been apparent from the available material. The applicant also contends that the Tribunal overlooked relevant material in that he claimed to be one of the founders of the political movement he supported.
In his oral submissions on behalf of the Minister, Mr Kennett disputed that there was any misunderstanding on the part of the Tribunal. He took me to RD 152 and RD 153 to support the submission that the Tribunal understood and dealt with the applicant’s claims to be an “organiser”. Mr Kennett submits that there was no misunderstanding on the part of the Tribunal of the applicant’s claims and neither was any element or integer of those claims overlooked. The applicant failed before the Tribunal because, although many of his factual claims of past harm were accepted, the Tribunal took the view that the harm the applicant had suffered was caused by a rogue state official and that the available evidence showed that effective state protection would be available against like harm in the future.
I invited further submissions in writing from the parties in view of the clarification of the applicant’s contentions in oral argument. The applicant claims to have filed additional written submissions on 11 November 2006 by facsimile but there is no record of receipt by the Court. A further copy was provided by facsimile on 30 November 2006. The Minister filed further written submissions on 22 November 2006 on the assumption that no further submissions had been made by the applicant. Relevantly, the Minister submits as follows:
In his initial statement of claims, the Applicant claimed (relevantly) that he and his friends had organised two “meetings”.[20] His Application to the Tribunal did not expand on that part of the claims.[21]
The only evidence of what occurred at the Tribunal hearing is the summary contained in the Tribunal’s reasons. It contains references to “his group” and its name,[22] suggesting that the Tribunal understood the Applicant to be saying that he was involved in the formation of a political movement of some kind (albeit one that was never formally registered).
The Tribunal expressly accepted that the Applicant was “part of an unregistered group in 1994 which organised a protest meeting”.[23] It went on to assess his claim that, as a consequence of that activity, he had been attacked by someone acting on behalf of the FSB. It rejected that claim, and the further claims that built upon it, partly on the footing that the authorities would not have regarded the activity as significant or worrying.
There is no material difference between a claim to have been one of the founders of a political movement and the claims addressed by the Tribunal. The Tribunal, as noted above, recorded that the Applicant had made statements about “his group”. It concentrated on what the Applicant claimed he and his group had actually done – which amounted to organising protest meetings – and considered whether those activities (a) had occurred and (b) would have been likely to bring the Applicant to the adverse attention of the authorities. It does not appear to have been suggested that the Applicant’s actions or profile as a founder of the group went further than this (e.g., that he published pamphlets or manifestos).
Even if there were a material difference, and the Tribunal had failed to appreciate the full extent of the Applicant’s claimed involvement, it would not follow that any jurisdictional error had occurred.
The relevant distinction was aptly stated by the Full Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs.[24] An assertion that the Applicant was more than just an organiser of meetings (if made) was evidence which might, conceivably, have led to a different conclusion about the plausibility of his claim that the FSB had sought to harm him because of his political activities. It was not a contention which suggested a well-founded fear of persecution on some basis other than that which the Tribunal considered.
[20] RD 24.
[21] RD 44-45.
[22] RD 62.
[23] RD 69.
[24] (2003) 75 ALD 630 at [46].
The applicant’s supplementary submissions received on 30 November 2006 reiterate his complaints concerning the reliance placed by the Tribunal on the US State Department report and the conclusion reached by the Tribunal that he did not have a well-founded fear of future harm by reason of his past political activities. In particular, the applicant contends that the Tribunal was in error in concluding that the FSB officer who assaulted him was not a continuing threat or that the State would provide effective protection from harm by that officer. The applicant draws attention to the facts accepted by the Tribunal that the FSB officer was reinstated to the FSB following his release from prison after serving only two years of a ten year sentence and that the present Governor of Voronez region is a former FSB officer. The applicant sees the Tribunal decision as suffering from a “manifest lack of logic and common sense”.
Reasoning
Under the heading “Findings and Reasons for Decision” the Tribunal commences with an important statement[25]:
At the heart of the present case is the Applicant’s view that Russia has not changed since the break-up of the former Soviet Union and that the same totalitarian system and the same Stalinist repression are still in place. The Applicant is of course perfectly entitled to hold that view but, as I put to him in the course of the hearing before me, I do not accept that this view is correct. It does not accord with the independent evidence available to me. While it is true that, as the Applicant said, there is evidence that human rights abuses continue to occur in Russia, the US State Department advised in November 1997 that there was increased freedom of political activity in Russia. It said that Russians generally enjoyed freedom of assembly and association. It said that, with some exceptions, notably certain environmental activists, citizens freely and actively protested government decisions and actions of which they disapproved. It said that, with the exception of a few high profile critics of the security or military services, individuals were not mistreated for participation in those political groups that were active players in the current parliamentary system (US State Department, Bureau of Democracy, Human Rights and Labor, Russia – Profile of Asylum Claims and Country Conditions, November 1997, Sections III.B, Claims Based on Political Opinion, and III.F.3, Fear of the Secret Police).
[25] RD 150
The presiding member concluded[26] that, on the basis of the available country information, there was freedom on assembly and freedom of association in Russia and that the applicant would be able to pursue political activity in his home town in future should he want to[27]. It was implicit in this reasoning that the applicant was not one of the “few high profile critics of the security or military services” who the country information stated were at risk.
[26] RD 151
[27] He indicated that he did not want to.
The presiding member then went on to consider the applicant’s factual claims of past harm which the presiding member accepted. The presiding member also accepted that the applicant was an organiser of demonstrations and political meetings. The presiding member also accepted that the applicant was attacked on two occasions and accepted that the second (and apparently more serious) attack was the work of a rogue state security official who was subsequently prosecuted and sentenced to ten years in prison[28]. The presiding member reasoned that the unprofessional way in which the second attack was carried out indicated that it was not carried out at the instigation of the Russian state but was rather a personal act of a rogue official. The presiding member also reasoned that the action taken against that person by the Russian state indicated that the state was willing and able to protect the applicant from such harm.
[28] RD 153-RD 154
The presiding member then went on to deal with various non political claims made by the applicant about which he does not raise any complaint in this proceeding.
The applicant has no quarrel with the Tribunal’s examination of his non political claims. His attack on the Tribunal’s decision concerning his political claims appears on its face to be an attack upon the merits of those claims but, properly understood, his contention is that the Tribunal’s consideration of those claims was so flawed as to constitute a constructive failure to consider them.
I cannot accept that contention. The Tribunal was entitled to reach the conclusion it did concerning the applicant’s political profile on the material it had before it. The Tribunal made no error in identifying his claimed political activities and was entitled to conclude that his organisational activities did not clothe him with the kind of high political profile that would expose him to a significant risk of harm as detailed in the US State Department report. The Tribunal correctly identified the actions of a rogue official as potentially giving rise to a well-founded fear of persecution[29] and was entitled to reach the conclusion it did on the adequacy of available State protection. On the applicant’s own account, the Russian State did not withhold from him protection against the rogue state official. On the contrary, the official was prosecuted and was sentenced to a lengthy term of imprisonment. It is true that he served only a small portion of that term of imprisonment and was reinstated to his former employment but the willingness of the State to prosecute the official for a criminal offence was an important factor in considering the ongoing willingness of the State to protect the applicant from harm from that source. I do not rule out the possibility that a different presiding member may have reached a different conclusion after taking into account the early release and reinstatement of the FSB officer and the background of the regional Governor, but that is not the point. The conclusion reached by the present Tribunal on the issue of State protection was open to it on the material before it. The Tribunal decision was neither illogical nor perverse and nothing was overlooked. Nothing irrelevant was taken into account.
[29]Minister for Immigration v Khawar (2002) 210 CLR 1
I find that the decision of the Tribunal was free from jurisdictional error. It was therefore a privative clause decision and the judicial review application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 22 February 2007
4
0