SZARU v Minister for Immigration - [2004] FMCA 503

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZARU v MINISTER FOR IMMIGRATION

[2004] FMCA 503

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Ukraine – applicant accepted an invitation to attend RRT hearing but failed to attend – decision made in his absence – applicant now asserting illness preventing his attendance but no notice given to the RRT – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), ss.425, 426A

NASH v Minister for Immigration [2004] FCAFC 244

Applicant:

SZARU

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ974 of 2003

Delivered on:

19 August 2004

Delivered at:

Sydney

Hearing date:

19 August 2004

Judgment of:

Driver FM

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent:

Ms A Houlton
Sparke Helmore

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 $2,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ974 of 2003

SZARU

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 16 April 2003 and handed down on 6 May 2003. The RRT affirmed a decision of a delegate of the respondent Minister not to grant the applicant a protection visa. Briefly, the applicant is from Ukraine and made claims of political persecution. The RRT was not persuaded that the applicant had a well founded fear of persecution based upon those claims. Relevant background facts are set out in written submissions prepared on behalf of the Minister by Ms Houlton. I adopt paragraphs 2 - 16 of those submissions for the purposes of this judgment:
The applicant’s claims were contained in a translation of a statement accompanying his initial application for a protection visa: court book, page 24.
No further written claims were provided by the applicant and he failed to attend his hearing before the RRT.
The applicant claimed to fear harm in the Ukraine because of his political opinion. He claimed to have joined the Ukrainian National Assembly – Ukrainian National Self-Defence (“UNA-UNSO”) in 1985, and to have been dismissed from his employment in 1987 because of his political opinion: court book, page 24.3.
He claimed to have been detained by police on numerous occasions for his political activities: court book, page 24.4. He claimed to have been detained for ten days in 1999 for picketing outside the Ukrainian Supreme Soviet in Kiev and to have been detained for three days in December 2000 because of his involvement in the “Ukraine without Kuchma” movement: court book, page 24.6.
He also claimed to have received threatening telephone calls, and to have been harassed by traffic police: court book, page 24.7.
RRT proceedings and findings
The applicant lodged an application for review with the RRT on 29 May 2001: court book, pages 38 - 41.
The applicant did not provide any information in support of this application for review, although he did claim that he was not given the opportunity to comment on material relied upon by the delegate: court book, page 40.
On 20 January 2003, the RRT wrote to the applicant advising him that it was unable to make a favourable decision on the material before it and inviting him to a hearing (as required by s.425 of the Migration Act1958 (“the Migration Act”): court book, pages 42 - 43.
In a completed response to hearing form dated 4 February 2003, the applicant indicated that he wished to attend a hearing before the RRT and requested a Russian interpreter for that hearing: court book, page 44. However, the applicant did not attend the scheduled hearing on 14 March 2003, and did not contact the RRT to explain his failure to attend: court book, page 54.9.
In these circumstances, the RRT was entitled to proceed as it did and make a decision on the papers: see s.426A(1) of the Act. There is no procedural unfairness or other jurisdictional error in the RRT’s actions.[1]
The RRT was unable to reach the requisite level of satisfaction required of it by the Act: court book, page 58.1.
The RRT found that the applicant’s claims amounted to a “series of assertions…without any supporting detail”: court book, page 56.5.
The RRT accepted that the applicant could have been dismissed from his employment for belonging to a Ukrainian nationalist organisation in 1987 as at this time the Ukraine was still part of the Soviet Union: court book, page 56.7. However, the RRT noted that independent evidence (referred to in the delegate’s decision) indicated that individuals were able to openly criticise the Ukrainian government without reprisal, and that unlicensed demonstrations were common and occurred without the interference of the authorities: court book, pages 56.8 – 59.1.
The RRT was unable to be satisfied on the basis of the applicant’s “bare assertions” that he was involved with the UNA-UNSO or attracted the adverse attention of the authorities because of his political opinion: court book, page 57.7. It noted that the applicant’s claims were inconsistent with the independent evidence: court book, page 57.8.
The RRT found that the applicant was not a person to whom Australia had protection obligations because it was unable to be satisfied on the evidence before it that he had a well-founded fear of persecution: court book, page 58.1.
[1] NASH v Minister for Immigration [2004] FCAFC 244 (3 March 2004) per Heerey, Sundberg and Crennan JJ at [19].
In his judicial review application filed on 30 May 2003 the applicant asserted first, that the RRT had no evidence for its decision and secondly, that the RRT did not act in good faith. The matter came before me on 16 July 2004. Shortly before that hearing the applicant contacted the Court to advise that he was unwell and provided a medical certificate. Nevertheless, the applicant attended in person on 16 July 2004. He confirmed that he was unwell and provided medical evidence that he suffers from high blood pressure. I granted an adjournment until today.
I made other orders, including an order that the applicant provide particulars of the two grounds of review set out in his application, no later than 30 July 2004. The applicant did not provide those particulars but he did file written submissions on 30 July 2004. Those submissions were responsive to the Minister's written submissions filed on 13 July 2004. In his written submissions the applicant agrees with paragraphs nine and ten of Ms Houlton's submissions but complains that the RRT made no attempt to contact him and ascertain his circumstances or obtain information from him.
The applicant told me from the bar table that he was unwell with high blood pressure immediately before his scheduled hearing before the RRT and was too sick to attend. He pointed out that under the Migration Act it was open to the RRT to adjourn the hearing and to take telephone evidence from him. That is so. However, the applicant did not contact the RRT in order to put the RRT on notice that he was unwell. He told me that it was some time after the RRT hearing that he was told that it was too late to raise such an issue as the RRT decision had already been made.
There is no substance to the two grounds of review raised in the judicial review application. It is clear that the RRT did have evidence before it to support its decision. That evidence was the material provided by the applicant and country information. Also, in the absence of particulars and evidence there is nothing to support the assertion of bad faith.
The issue raised by the applicant in his written submissions is one of procedural fairness. That is the only issue that could arise out of the available material in this case. The applicant was invited to attend a hearing before the RRT by letter dated 20 January 2003. In that letter the applicant was informed that if he thought he might be unable to attend the hearing he must contact the RRT immediately. The letter advised him that if he did not attend the hearing and the RRT did not postpone the hearing it could make a decision on his case without further notice. The applicant accepted the invitation to attend the hearing but he failed to do so. The presiding member noted on pages five and six of his reasons (court book pages 54 and 55) that the applicant had not attended and that there was no explanation for his absence. In the circumstances, the presiding member elected to proceed in the absence of the applicant pursuant to the power conferred on the RRT by s.426A of the Migration Act.
In a case of asserted procedural unfairness it will always be a question of what the circumstances of the particular case required. The RRT was empowered to proceed in the absence of the applicant but was not required to do so. It could have adjourned if there was sufficient reason to do so. Apart from his statements from the bar table, the applicant has not advanced any evidence that he was too sick to attend the RRT hearing. Orders made by Registrar Kavallaris in this matter on 16 July 2003 included an order that the applicant file and serve on the respondent any evidence upon which he proposed to rely on or before 27 August 2003. He did not file any evidence.
In the circumstances, the applicant’s statement today that he was too sick to attend the RRT hearing is far from compelling. However, even if that assertion is true, the RRT had no knowledge of it. There was nothing within the knowledge of the presiding member that reasonably called for an adjournment or a telephone hearing. The obligations of procedural fairness on the RRT, whether arising from the general law or from the Migration Act, do not require the RRT to go hunting for an applicant who indicates an intention to attend, but who fails without any explanation to attend.
I find that the proceedings before the RRT were fair. There is no jurisdictional error in the decision of the RRT. It follows that the decision of the RRT is a privative clause decision.
I must dismiss the application.
On the question of costs, I am satisfied that costs should follow the event. Ms Houlton seeks an order for costs on a party/party basis fixed in the sum of $2,800. Her estimate is, in my view, a reasonable one. The applicant felt unable to make submissions on the question of costs. 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 $2,800.

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

Associate:

Date: 31 August 2004