SZARU v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1382

FEDERAL COURT OF AUSTRALIA

SZARU v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1382

SZARU v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 1315 of 2004

BRANSON J
19 OCTOBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1315 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZARU APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	19 OCTOBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the respondent’s costs fixed in the sum of $2000.00

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1315 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZARU APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BRANSON J
DATE:	19 OCTOBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of the Federal Magistrates Court, constituted by Driver FM.  On 19 August 2004, his Honour dismissed with costs an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’).

2. Attached to the appellant’s original application for a protection visa was a statement in English.  An accredited translator for the Russian and English languages had certified that he had truthfully and faithfully translated that statement from a document given to him in Russian.  The statement was made by the appellant and is dated 22 March 2001. 

3. The statement asserts that the appellant was born in 1959 in the town of Kremenets in the Ukraine, where he has lived until recently.  The statement gives the following explanation of why the appellant does not want to go back to the Ukraine:

   ‘After graduating from Lvov University in 1984 I started to work in Kremenets District Executive Committee.  In 1985 I became a member of a radical party, the Ukrainian National Assembly – Ukrainian National Self‑defence. (UNA‑UNSO).  It was the time when persecution by the authorities began.  In 1987 I was sacked for my political views.

   All the subsequent years I felt constant pressure from the authorities.  I was detained by police on many occasions for organising public meetings and spreading leaflets which called for struggle against the corrupted pro‑communist authorities.

   In 1999, during picketing of the Ukrainian Supreme Soviet in Kiev, I and many members of our delegation were beaten up and detained for 10 days by the Kiev police.

   Over the last half a year I have been an organiser of the regional campaign Ukraine without Kuchma which has been carried out in all the regions of the Ukraine.  In December 2000 the bus in which we were travelling to Kiev in order to take part in the All‑Ukrainian Protest Campaign was stopped by police and security agents.  We were kept for 3 days in a police station in Zhitomir where we were subjected to endless interrogations and threats.

   Over the last month I have received constant telephone calls from unknown persons who threatened me: “People like you don’t live long”.  In the streets I have been constantly stopped by the traffic police and fined without any grounds.

   Knowing about methods which the Ukrainian authorities use, I constantly feel threat to my health and life.

   I do not want to return to the Ukraine.’

4. A delegate of the respondent was satisfied that the appellant is not a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (together ‘the Convention’), (see s 36 of the Migration Act 1958 (Cth) (‘the Act’)). The delegate was particularly influenced by the appellant’s failure to provide any supporting details of his claims. The delegate identified the absence of details such as the dates and place of his detention and the nature of the threats made to him.

5. The appellant sought review by the Tribunal of the decision of the delegate.  By his application for review he complained first, that the decision‑maker failed to apply correctly the Convention definition and secondly, that he did not have an opportunity to comment on material on which the decision-maker relied.

6. The Tribunal, by a letter dated 20 January 2003, sent the appellant a hearing invitation.  The letter advised the appellant that the Tribunal had considered the material before it in relation to his application but was unable to make a decision in his favour on that material alone.  The letter contained the following note under the heading ‘Important information about your hearing’:

   ‘The Tribunal will only change this hearing date for good reasons.  If you think you might be unable to attend the hearing you must contact the Tribunal immediately.  If you do not attend the hearing and the Tribunal does not postpone the hearing it can make a decision on your case without further notice.’

   The appellant responded to the invitation that he received from the Tribunal by indicating his desire to attend the hearing that had been scheduled for 14 March 2003.  The appellant did not in fact attend the scheduled hearing.

7. The Tribunal proceeded to make a decision on the appellant’s application for review without taking any further action to allow or enable the appellant to appear before it.  The decision of the Tribunal, which was made on 16 April 2003, was handed down on 6 May 2003.  The reasons for decision of the Tribunal record that the appellant did not contact the Tribunal to explain his failure to attend the scheduled hearing.  I note that there was a period of approximately four weeks between the date of the scheduled hearing and the date that the Tribunal made its decision, within which the appellant could have advised the Tribunal of any reason, such as unexpected illness, why he had not attended the hearing.

8. The learned Federal Magistrate found that the decision of the Tribunal was not affected by jurisdictional error. The Magistrate found that the Tribunal’s decision was a privative clause decision within the meaning of s 474 of the Act. A privative clause decision is not amenable to review or indeed to appeal.

9. By his written submissions on this appeal the appellant has argued that, because of health problems, he cannot predict when he will be available for an interview.  He claims that he was not given an opportunity to present his case to the Tribunal.  He further argues that the Federal Magistrate did not recognise that the Tribunal failed to consider his health problems.  The Federal Magistrate considered the issue of the appellant's failure to attend the scheduled hearing because of health problems at paragraph 4 of his Honour's reasons for judgment.  His Honour there said:

   ‘The applicant told me from the bar table that he was unwell with high blood pressure immediately before his scheduled hearing before the Tribunal and was too sick to attend. He pointed out that under the Migration Act it was open to the Tribunal 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’s decision had already been made.’

10. I am satisfied that no error has been shown to affect the Federal Magistrate’s consideration of the appellant’s argument concerning his alleged health problem. There was no evidence in front of the Federal Magistrate to suggest that the notice of invitation given by the Tribunal to the appellant did not comply with the requirements of s 425A of the Act. In the circumstances, s 426A of the Act authorised the Tribunal to proceed in the way that it did; that is, without giving the appellant a further opportunity to present his case to the Tribunal and without making inquiries of its own concerning the appellant’s health (see NASH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 44). As is mentioned above, the appellant took no steps to alert the Tribunal to his alleged health problems.

11. The appellant, by his written submissions on the appeal, and orally, has drawn my attention to two decisions of the High Court.  They are Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 (‘Dranichnikov’) and Abebe v The Commonwealth [1999] HCA 14; 197 CLR 510 (‘Abebe’).  The appellant has submitted that these authorities say that the function of the Tribunal is to respond to the case that the applicant advances.

12. This appeal raises quite different issues from those raised in Dranichnikov and Abebe.  In this case the appellant’s claims are outlined in his initial written statement.  Those claims were considered with care by the Tribunal.  Nothing in Dranichnikov or Abebe suggests that the Tribunal cannot proceed without hearing from an applicant for a protection visa if the applicant does not attend a scheduled hearing in respect of which he or she has received a notice that complies with s 425A of the Act.

13. As no error has been, or in my view, can be, identified in the decision of the Federal Magistrate this appeal must be dismissed.  I so order. 

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:             26 October 2004

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	B Rayment
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	19 October 2004
Date of Judgment:	19 October 2004