SZAXC v Minister for Immigration
[2005] FMCA 36
•28 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAXC v MINISTER FOR IMMIGRATION | [2005] FMCA 36 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), s.474
Judiciary Act 1903 (Cth), s.39B
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1994) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (1999) 168 ALR 407
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
| Applicant: | SZAXC |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1214 of 2003 |
| Delivered on: | 28 January 2005 |
| Delivered at: | Sydney |
| Hearing date: | 16 December 2004 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Counsel for the Respondent: | Mr J A C Potts |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1214 of 2003
| SZAXC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 9 May 2003 and handed down on 3 June 2003, affirming the decision of the delegate of the respondent (“the delegate”) made on 2 August 2000 to refuse to grant the applicant a protection visa.
Background
The applicant who claims to be a citizen of the Ukraine arrived in Australia on 27 May 2000. On 6 July 2000 she lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Migration Act 1958 (Cth) (“the Act”). On 2 August 2000 the delegate refused to grant a protection visa and on 23 August 2000 the applicant applied for a review of that decision (Court Book p.66) (“CB”).
The applicant gave oral evidence to the Tribunal on 23 April 2003. At the interview the applicant confirmed that she was born in the Ternophil Region of the Ukraine on 3 July 1971. The applicant stated she completed thirteen years of education, has a nursing qualification and was employed as a nurse from June 1991 to January 1998. The applicant stated that she resided at the same address in Chortkiv from June 1990 to January 2000. The applicant obtained her passport on
4 May 2000 and a visitor’s visa on 19 May 2000. The applicant stated her ethnic group is Jewish and she is of the Christian faith. The applicant stated in her original application that she was not married and had two sons who reside in the Ukraine. The applicant changed the statement in relation to her marital status at the interview and indicated that she was married to an Ukranian man.
The applicant claimed she left the Ukraine because she feared being persecuted because of her nationality. She claimed she was of a Jewish background because her father was Jewish and her mother Ukrainian. The applicant claimed that all her life she was a victim of abuse and attacks because of anti-Semitism that traditionally exists in the Ukrainian society. The applicant claimed that since independence of the Ukraine there has been increased economic instability and poverty. She claimed the attitude towards Jews has deteriorated and anti-Semite groups have made Jews the scapegoats for all the trouble the Ukraine suffers. The applicant claimed that the atmosphere of complete intolerance towards Jews has made her life unbearable.
The applicant claimed she was attacked on many occasions by members of the Ukrainian Ultra Nationalist organisations, such as the Ukrainian National Self Defence, Ukrainian National Assembly (UNA and UNSO). The applicant claimed there were paramilitary organisations with strong anti-Semite directions. She claimed her home was vandalised many times and was personally beaten near her home. The applicant claimed she received numerous threats by telephone and mail. She claimed the Ukrainian authorities did not take her complaints seriously and artificially directed people’s anger toward the Jews because they were unable to improve the level of life in the Ukraine. She claimed it was much easier for the authorities to maintain the idea that Jews should be responsible for the deterioration of the economy. The applicant claimed the only way to avoid inevitable death was to flee the Ukraine (CB p.69).
The Tribunal’s findings and reasons
Although the Tribunal accepted the applicant was a national of the Ukraine (CB p.81.1) it otherwise rejected almost every element of her claims. In particular:
a)The Tribunal did not accept the applicant was persecuted because of her father’s nationality, noting that the applicant did not look Jewish nor appear to be familiar with Jewish traditions or holidays (CB p.82.8);
b)The Tribunal found that, even if some people in the applicant’s home city were aware her father was Jewish, it did not accept that she was physically attacked in January 1998 and January 2000 or that her house was vandalised because her father was Jewish (CB p.83.1);
c)The Tribunal did not accept that the position of Jewish people in the Ukraine was deteriorating but considered that the human rights position was improving (CB p.83.5);
d)The Tribunal did not accept the applicant received threatening telephone calls from members of Ukrainian Nationalist organisations (CB p.85.2);
e)The Tribunal did not accept that the Ukrainian authorities encouraged, condoned or were connected with the harassment of minorities, including Jewish people, by Ukrainian Nationalist organisations (CB p.85.6); and
f)The Tribunal did not accept the applicant suffered verbal abuse from people in the street on account of anything connected with her being Jewish and, in any event, did not consider that that would be sufficiently serious as to amount to persecution in a Convention sense (CB p.85.9).
Having made those findings, the Tribunal then considered whether there was a real chance that the applicant would be persecuted if she returned to the Ukraine in the foreseeable future (CB p.86.2). Taking into account what it described as “independent evidence” concerning the position of the Jewish people in the Ukraine and that “the applicant is not of Jewish appearance [and] has been married to a Ukrainian for fourteen years and has embraced Ukrainian culture” (CB p.86.8), the Tribunal found that it was satisfied that there was no real chance that she would be persecuted for reasons of her ethnicity if she returned to the Ukraine within the foreseeable future.
Application for review of the Tribunal’s decision
On 1 July 2003 the applicant filed an application for review under s.39B of the Judiciary Act 1903 setting out the following grounds:
“1.The Tribunal erred in determination whether I had a well founded fear of persecution for the reason of any ethnicity.
2.The Tribunal fell in to error by not accepting that the Ukrainian authorities will fail to provide me with a level of protection against anti Semitic acts sufficient to remove a real chance of being persecuted if I returned to Ukraine now.”
The law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.
Submissions
The applicant appeared self represented with the aid of an interpreter. The applicant attended a directions hearing on 27 August 2003 and at that time agreed to Short Minutes of Order to file and serve an amended application and any evidence upon which she proposed to rely on or by 28 November 2003. The substantial matter was listed for hearing on 22 June 2004 before another Federal Magistrate but that hearing was vacated due to the applicant’s ill health. Subsequent to that date there was a series of further direction hearings which were vacated due to the applicant’s ill health. The matter came before me for a further directions hearing and allocation of a final hearing date on 8 October 2004 where this current hearing date was scheduled. Throughout this process the applicant failed to file an amended application or any other supporting documentation for this hearing.
When the applicant was invited to make oral submissions in support of her application that was limited to a restatement of the material that she had put before the Tribunal in her original application and at the oral hearing. There were no submissions in respect of any jurisdictional error made by the Tribunal in its decision. The only issue raised by the applicant was that she disagreed with the decision outcome.
Mr J A C Potts of Counsel, appearing for the respondent, filed written submissions prior to the hearing. It was submitted that the application filed by the applicant did not specify any ground that could amount to a jurisdictional error so as to invalidate the decision. It was the respondent’s contention that there was no jurisdictional error and that the Tribunal’s findings turned on its assessment of facts including the applicant’s credibility which was exclusively the function of the decision-maker of fact: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (“Durairajasingham”).
Reasons
The applicant in these proceedings was self represented using a Russian interpreter. The grounds in the applicant’s original application were vague and unparticularised and there were no oral or written submissions in support of the application. Where an applicant is self represented the Court must independently consider whether any arguable case based on material could have been made out: Yo Han Chung v University of Sydney & Ors.
In the absence of any specific claim as to jurisdictional error, a fair reading of the decision in conjunction with the independent information did not reveal any errors that fell into the category of jurisdictional error. The applicant was invited to attend the Tribunal hearing at which time she made certain corrections to the original visa application material concerning the status of her marriage which was accepted by the Tribunal member and was not at issue. The substantial part of the interview concerned the circumstances of her daily life within the Ukraine and alleged incidences with individuals and groups with an anti-Semitic agenda. The Tribunal in its reasoning then considered these matters against the independent information available to it concerning these issues in the Ukraine.
The Tribunal acknowledged the circumstances of anti-Semitism in the Ukraine, the existence of anti-Semitic groups and the changes in circumstances that were due to the Ukraine gaining its independence. As a result of the this review the Tribunal came to the following conclusion:
“Taking into account the above independent evidence together with the fact that the applicant is not of Jewish appearance, has been married to a Ukrainian for fourteen years and has embraced Ukrainian culture, the Tribunal is satisfied that there is not a real chance that the applicant would be persecuted for reasons of her ethnicity if she returned to [the] Ukraine within the foreseeable future. The Tribunal is unable to be satisfied that the applicant has a well founded fear of persecution in [the] Ukraine.” (CB p.86)
I accept the respondent’s submissions that the Tribunal’s findings turn on its assessment of the facts including the applicant’s credibility and that it was exclusively the function of the decision-maker to make such determination: Durairajasingham per McHugh J at [67].
Conclusion
As the grounds in the application are general and without particularisation, I have not been able to identify any ground that the Tribunal has committed any jurisdictional error and the application should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 28 January 2005
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