SZAWS v Minister for Immigration - [2004] FMCA 537

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAWS v MINISTER FOR IMMIGRATION

[2004] FMCA 537

MIGRATION – Visa – protection visa – application for review of decision of Refugee Review Tribunal affirming a decision of the delegate not to grant a protection visa – applicant claims well-founded fear of persecution for political reasons because of her opposition to trafficking in women in Ukraine – no reviewable error.

Migration Act 1958 (Cth), s.474

Minister for Immigration and Multicultural Affairs v Respondent S152/2003 (2004) 78 ALJR 698

Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1

Applicant:

SZAWS

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 1201 of 2003

Delivered on:

25 June 2004

Delivered at:

Sydney

Hearing date:

25 June 2004

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

The Applicant appeared on her own behalf

Counsel for the Respondent:

Mr Smith

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The application is dismissed.
The Applicant is to pay the Respondent’s costs of this application in the sum of $3,750.00
I allow three months to pay.
Transcript of reasons required.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1201 of 2003

SZAWS

Applicant

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The application before the Court is an application for a review of a decision of the Refugee Review Tribunal. That decision was made on 12 May 2003. The Tribunal affirmed a decision of a delegate of the minister not to grant a protection visa to the applicant. The applicant seeks a review of that decision by this Court. In her application, which was filed on 30 June 2003, the applicant says that the Refugee Tribunal was wrong in its decision. She also says that she believes that she does satisfy the criteria set out in section 36 of the Migration Act for a protection visa.
The applicant does not say that the Refugee Tribunal was biased or acted in bad faith. She says that the Tribunal member who heard the case was very nice. She told the Court that he listened to her evidence and treated her politely. Her complaint is that she believes that he made a wrong decision, because he did not understand the nature of the situation in the Ukraine.
The background to this case is that the applicant is a citizen of the Ukraine. She travelled to Australia on 10 October 2001. On

14 November 2001 she applied for a protection visa. In that application she said that she had a well-founded fear of persecution because of her activities in the Ukraine. She lived in a town called Trusjavets. It is a small resort town at the borders with Poland, the Slovak Republic, Hungary and Romania. Because of the town's location it is used for the illegal transit of women out of the Ukraine for the purpose of sexual slave trading. This trade is commonly referred to as "trafficking in women". The trade is conducted by means of young women being deceived into believing that employment will be found to them as dancers, or waitresses, or models in other countries.
The unfortunate reality is that when they arrive at their destination they are forced to work as prostitutes. The women involved are raped, beaten and sometimes even killed. The applicant was a member of a feminist group known as The Feminist Assembly. Her group took strong action to oppose the activities of those people who engaged in trafficking in women. As a result of the courageous actions by the applicant and other women the applicant was the subject of threats and at times violence. The applicant says that whilst the people involved in this trade are criminals, they are protected, and indeed supported by politicians within Ukraine.
There is a lot of political corruption and many politicians and local authorities either support, or are involved in, the criminal activity of trafficking in women. The applicant says that the unpleasant activities directed towards her resulted not only from the work of criminals, but were a form of political persecution. Since she has been living in Australia the applicant has continued her work in publicising the activities of those people who are involved in this criminal trade. Unfortunately for the applicant, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs was not satisfied that she should qualify for a protection visa.
That decision was made on 11 June 2002. On 1 July that year the applicant applied to the Refugee Review Tribunal for a review of that decision. The Refugee Review Tribunal heard her application on

1 April 2003. The applicant attended that hearing, and was provided with the services of an interpreter. By coincidence it appears to be the same interpreter who is assisting her in this Court today. The Refugee Review Tribunal was not satisfied that the applicant had made out her claim that she was entitled to a protection visa. The Tribunal considered her claim and I note that the Tribunal did not say that the applicant was not a truthful witness.
On page 82 of the Court book the Tribunal member said that in respect of certain matters the applicant was vague, and was unable to provide an explanation. The Tribunal member did not say that the applicant was an untruthful witness. The applicant has criticised the Tribunal for relying on country information that only provided one side of the picture about matters that happened in the Ukraine. She believes that the Tribunal member did not have sufficient information about the real situation in the Ukraine to be able to make a proper decision.
She told the Court that she believed that the Tribunal took the view that the assaults and threats directed towards her were made by criminals, and were not made for political reasons. She said that the Tribunal did not understand that the level of corruption in the Ukraine meant that politicians and local government authorities were involved in criminal activity, or turned a blind eye to it. In reply to this claim Mr Smith, the barrister who appeared for the respondent, referred the Court to pages 85, 90 and 91 of the Court book.
On page 82 the Tribunal set out the complaint by the applicant to the mayor of her town about businesses she held responsible for trafficking in women. The Tribunal said that the applicant said that the mayor had made various inquiries, but did not take any further action. In the next paragraph of the decision the Tribunal said, and I quote:
“The Tribunal explained to the applicant that its main concern with her case is that her experiences in the past, and the harm she fears in the future, are not essentially for any of the convention reasons.”
The Tribunal reported that the applicant had said that these criminal activities formed 80 per cent of her case, but the other 20 per cent of her case was political. The Tribunal said that the applicant had given evidence that her activities were carried out for national dignity and human worth. Rather sadly she said that her country did not need her and she did not feel protected. On pages 90 and 91 of the Court book the Tribunal sets out some statistics relating to criminal cases against people involved in trafficking in women.
The Tribunal described evidence of the government of the Ukraine regularly taking legal action against people involved in that activity. What Mr Smith submits, and I accept correctly, is that the Tribunal did understand the nature of the applicant's case. Whilst the applicant gave evidence of threats and persecution against her by criminals, the Tribunal understood that criminal activity and political corruption were closely connected. In other words, the Tribunal did understand the nature of the applicant's claim.
The applicant also told the Court about her need to continue her activities directed against this criminal trade. She also said that she felt safe and protected in Australia. She said that Australia is a democracy, and she is happy to live in a democratic country like Australia. The applicant is a nurse by profession, and she has much to offer this country. I have no doubt that the applicant is a lady of good character, who wishes to live in this country, and work in her profession in Australia. Unfortunately for the applicant, her case deals almost entirely with her disagreement with the factual findings made by the Refugee Review Tribunal. The only exception to this is her claim that the Tribunal failed to understand the precise nature of her case. I am satisfied that this criticism has been answered by counsel for the respondent.
In his written submission Mr Smith refers the Court to two decided cases, which are relevant to the matter before me. The first of these authorities is Minister for Immigration and Multicultural Affairs v Respondents S152 of 2003. That case is reported in (2004) 78 ALJR 698. As I have said, Mr Smith reminded the Court that the Tribunal had dealt with each of the applicant's claims. The Tribunal's finding that there was effective state protection was relative to, and supportive of the conclusion that there was no well founded fear of persecution. Mr Smith went on to submit a proposition of the law, which I believe, with respect, to be correct. I will quote that paragraph in full:
“A person cannot be a refugee if, despite the harm actually suffered or likely to be suffered that harm is not for reason of the person's race, religion, nationality, membership of a particular social group, or political opinion. Likewise, if what a person fears is conduct which does not amount to persecution, then that person does not fall within the definition of a refugee. Minister for Immigration and Multicultural Affairs v Hajilbrahim (2000), 204 CLR 1.”
I believe that this is a succinct encapsulation of the relevant law, and is particularly apt to the case before me. The fact is that the applicant has directed her case towards a review of the merits of the Tribunal's decision. In other words, her case has largely been directed towards a challenge to the factual findings made by the Tribunal. The Court does not have the power to re-decide any questions of fact. I am satisfied, as I said earlier, that the applicant is a lady of good character, who engaged in a courageous fight against people involved in a wicked criminal trade known as "trafficking in women".
As a result of this, the people involved directed acts of violence and intimidation towards her. Unfortunately, the Refugee Review Tribunal was not satisfied that those facts qualified her for a protection visa.

I am not satisfied that any jurisdictional error on the part of the Tribunal has been shown.
The findings of fact made by the Tribunal must stand, because the Court does not have the power to re-decide those matters. Accordingly, the application must be dismissed.
I order that the applicant pay the respondent's costs of this application, fixed in the sum of $3750. I allow three months to pay the costs.

I require a transcript of my reasons for this decision.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: V. Lee

Date: 25 August 2004