SZAVZ v Minister for Immigration
[2004] FMCA 463
•14 July 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAVZ v MINISTER FOR IMMIGRATION | [2004] FMCA 463 |
| MIGRATION – Review of RRT decision – where applicant claimed to fear persecution at hands of fascist groups – where applicant claimed that the state could not provide protection against such groups – where Tribunal found applicant not to be a credible witness – whether findings and reasons of the Tribunal evidence denial of procedural fairness or jurisdictional error. |
Kamal v MIMA [2002] FCA 818
Re MIMA; Ex parte Durairajasinghan (2000) 168 ALR 407 at [67]
W148/00A v MIMA [2001] FCA 679
| Applicant: | SZAVZ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 1175 of 2003 |
| Delivered on: | 14 July 2004 |
| Delivered at: | Sydney |
| Hearing date: | 14 July 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | Applicant in person |
| Counsel for the Respondent: | Mr D Jordan |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $3,500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 1175 of 2003
| SZAVZ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant in this matter is a citizen of Cyprus who arrived in Australia on 14 December 2000. On 6 August 2001 she lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 19 October 2001 a delegate of the Minister refused to grant a protection visa and on 7 November 2001 the applicant applied for review of that decision. The Refugee Review Tribunal invited the applicant to attend a hearing on 5 May 2003. The applicant did attend. On 12 May 2003 the Tribunal determined to affirm the decision not to grant a protection visa and it handed down that decision on 25 June 2003.
The applicant seeks review of the decision of the Tribunal based upon an application filed on 26 June 2003 in which he stated that the Tribunal failed to closely examine her position in Northern Cyprus, that she had a grave fear of persecution and that she feared Fascist groups and that she would have no form of protection from them. The applicant has not further particularised these grounds and today she told me that she had nothing to say. The applicant is a person of Turkish ethnicity living in the Northern Turkish half of Cyprus. Before coming to Australia she was a waitress.
The Tribunal recites a number of claims made by her in her initial application between [CB 79] – [CB 81]. These included that criminal elements were relocating from Turkey to Cyprus, that the State did not carry out universal human rights, that she had not been able to study past primary school because of her family's financial problems and that her natural evolution had been impeded as a result. The applicant claimed various breaches of human rights such as the inability to freely establish trades unions and the harassment of women and youth both verbally and physically. She complained that those persons like herself who wished to live in peace in Cyprus were labelled as traitors and Communists. She said that people who speak for peace with Greece and question the economy were bombed, abducted, famished or tortured through a Fascist organisation which she named. She said she lived her life in constant fear of harassment by soldiers. She also claimed that the State raised her under male oppressive pressure. She believed that the State was not in control of the streets and she might be abducted by Fascist groups, raped, tortured or even murdered. When her claims came to be considered by the Tribunal at the hearing, she added a number of additional elements [CB 91]:
“However, at the hearing before the Tribunal the applicant raised several new matters. She raised the claim that her younger sister was abducted, there were threats over the phone that the family was going to be killed and that she had received a threatening phone call. …
Further, the applicant stated at the hearing that she had no idea who was responsible for the abduction and phone calls but then later stated there was animosity in TRNC between the older Turkish community and the newer Turks, such as her family, which had never been accepted in the TRNC.”
The applicant also told the Tribunal that a neighbour's daughter had been raped and a terrorist group had attacked her neighbours' homes and other people's homes: [CB 92]
The Tribunal dealt with the matters raised by the applicant in her initial application at [CB 93]- [CB 94]. At [CB 93]:
“The applicant made a number of general claims in her application for a protection visa, which included issues such as democracy, relations with Greeks in Cyprus, the presence of armies in TRNC, economic conditions, the presence of criminal elements and the possible non‑observance of human rights. The applicant did not pursue these issues at hearing other than to state that they all related to the expectation of passing a bribe in order to get anything. The applicant also agreed that the TRNC Government had not persecuted her. The independent country evidence states that democratic principles generally are respected in Cyprus and the TRNC respected the human rights of its citizens ... I accept this evidence. Accordingly, the Tribunal finds that none of these matters amount to past persecution and the Tribunal also finds on the evidence before it that the applicant does not face a real chance of persecution should she return to the TRNC now or in the foreseeable future.”
The Tribunal dealt with the additional claims that were made at the hearing by making a finding at [CB 91] that:
“Having regard to the applicant not raising these issues in her extensive application for protection visa; and there were no details in her application for review form; her acknowledgment at the start of the hearing that all her claims had been presented and that she had them read back to her in Turkish and she signed them, and she was happy with them and there were no further claims; the central nature of the claims; and that the applicant changed her views about aspects of the claim during the hearing; I do not accept these claims. I find that they were a fabrication designed to enhance her claims and I reject them. I reject the applicant's possible explanation that she wrote the claims down and they were left out of her documentation. I find that the applicant's evidence is not credible.”
This finding should have been the end of the matter. It is a firm finding based upon rational grounds in respect of a matter, credibility, which is the Tribunal's essential task. As such it is unreviewable by this court Kamal v MIMA [2002] FCA 818; Re MIMA; Ex parte Durairajasinghan (2000) 168 ALR 407 at [67]; W148/00A v MIMA [2001] FCA 679. That finding having been made there was no necessity to embark on any further consideration of the claims but the Tribunal did this saying at [CB 92]:
“However, on the basis that the Tribunal is wrong about this, it will consider the applicant's claims.”
I do not propose to criticise the detail of the Tribunal's further findings but I would say that when a Tribunal embarks upon this course of action it risks falling into jurisdictional error. A reading of [CB 92] – [CB 94] could lead one to the view that the Tribunal had asked itself not whether this particular applicant had a well founded fear of persecution for a convention reason but whether this applicant had been persecuted. But as I have said, any error by the Tribunal (and I have not found such an error) would be irrelevant because the Tribunal had already made its decision before it came to consider these matters.
The Tribunal made its decision on bases that were available to it and unreviewable. I am therefore satisfied that no jurisdictional or other reviewable error has been revealed. I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $3,500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 26 July 2004
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