SZAZO v Minister for Immigration
[2005] FMCA 282
•1 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAZO v MINISTER FOR IMMIGRATION | [2005] FMCA 282 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant is a citizen of Georgia who is an ethnic Russian – applicant is Molokan by faith – no reviewable error. |
| Judiciary Act 1903 (Cth) s.39B Migration Act 1958 (Cth) s.475A |
| A v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 238 Abebe v Commonwealth (1999) 179 CLR 510 |
| Applicant: | SZAZO |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1404 of 2003 |
| Judgment of: | Scarlett FM |
| Hearing date: | 1 March 2005 |
| Date of Last Submission: | 1 March 2005 |
| Delivered at: | Sydney |
| Delivered on: | 1 March 2005 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondent: | Mr Mantziaris |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The Application is dismissed.
The Applicant is to pay the Respondent’s costs fixed in the sum of $4,750.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1404 of 2003
| SZAZO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision by the Refugee Review Tribunal that was made on 1 February 2002 and handed down on 22 February 2002. The decision concerns the applicant and her son. The application before the Court, however, has only been brought by the applicant and only relates to her claim. Her son is not a party to the proceedings before the Court today.
The applicant is a citizen of Georgia, part of the former Soviet Union. She arrived in Australia on 2 June 1999. On 13 July 1999, she lodged an application for a protection visa. In that application, she claimed to be an ethnic Russian who resided in Georgia. She said she had left Georgia because she was persecuted there. She also says she is a Molokan by faith. She was born in Tbilisi in Georgia and when she was quite young, her family moved to Rustavi, which was a small town not far away.
She worked as a teacher in a Russian school there. She said that in 1991, persecution of Russian people in Georgia started. A large number of Russian people left their homes and fled from Georgia. She said that her family did not have anywhere to go and they were persecuted because they were Russians and because of their religion. She said that in November 1996, her father was assaulted and beaten up. He was not able to obtain assistance from the militia. She said he was beaten again very severely in July 1997. That same month, she said that her cousin, Sergei, was beaten and attacked by Georgians and was nearly killed. She said that in May 1997, she was abused and hit on the head by three Georgian men. The next day, she sought help from the militia, but they told her that she would be better off if she did not stay in Georgia.
The applicant said that in August 1997, two young Georgian people forced their way into her home in a form of home invasion. They threatened her with a knife and tied her up. Again, when she sought help from the militia, a militia officer told her that he wondered why she had not left.
The applicant said that she left Georgia in May 1999. She said she used a USSR passport issued in St Petersburg. She said she had previously travelled to Finland for a few days in early 1998. She did that to test the passport. She did not seek to apply for a protection visa or its equivalent in Finland.
A delegate of the Minister refused the application for a protection visa. The applicant applied to the Refugee Review Tribunal for review. The applicant attended the hearing and gave evidence. On 22 February 2002, the Refugee Review Tribunal gave its decision. The Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa. The RRT decision, as I said, involved both this applicant and her son, although only this applicant is a party to these proceedings.
In the Tribunal decision at page 207 of volume 2 of the Court Book, the Tribunal said:
The applicants claim to fear persecution in Georgia because of their Russian ethnicity and their Molokan religion. They claimed to fear persecution in Russia because of their Molokan religion.
At page 208 of the Court Book, the Tribunal found that the applicant's Russian passport was genuine and said the applicants were citizens of Russia and had the right to return to Russia and reside in Russia. The Tribunal noted that, as an ethnic Russian, the applicant feared persecution in Georgia.
The Tribunal referred to the attacks on the applicant, on her father and on her cousin. The Tribunal noted at page 209 of the Court Book that those attacks happened in 1995, 1996 and 1997. The Tribunal said in the first paragraph on page 209:
This was before the applicants travelled to Russia in September 1997, and a subsequent later journey there, and on to Finland. Had such serious attacks on them taken place, the Tribunal would not have expected them to have returned to Georgia. The Tribunal does not accept the applicant's explanation that they felt themselves unable to seek protection in Finland. Though not many Georgians were granted asylum in Finland in 1998, the system in place at the time provided ample scope for applications. The Tribunal infers from the fact of the applicant's return to Georgia on three occasions that they were not in fear of persecution at that time.
The Tribunal said at page 210 of the Court Book:
In summary, therefore, the Tribunal finds that the applicants fear of persecution in Georgia are not well founded. For the sake of completeness, the Tribunal also considered the question of their potential situation in Russia and finds that they also have citizenship in Russia, but their fears in respect of persecution there are not well founded.
In her application filed on 22 July 2003, the applicant gives two grounds for judicial review. The first one says, and I quote:
The Tribunal incorrectly determined that the mistreatment that I received in Georgia had no ethnic and religious motivation on the part of the Georgian population and authorities.
The second ground was:
The Tribunal erred in determining that my claims are not sufficient to be considered as persecution under the Refugee Convention.
I asked the applicant in Court today to explain those grounds. She referred me again to the serious injuries sustained by her father and her cousin. She said that the Refugee Review Tribunal did not understand the situation in Georgia that well. She said that the Refugee Review Tribunal did not look into the matter deeply enough. She said,
"A threat to my life - is that not sufficient to be considered persecution?"She told the Court that she had obtained pro bono legal advice from a Mr Atkin, solicitor. She told the Court that she had informed the Refugee Review Tribunal at the hearing about all the threats and violence and harassment that had taken place in Georgia. She said that the Tribunal had asked her about seeking protection in Russia or Finland. She told the Court that she had never lived in Russia and she had no friends or relatives there. She said the purpose of going to Finland was really only to test the passport.
On behalf of the respondent, Mr Mantziaris of counsel presented a written submission. In his submission at page 4, he submitted that both nominated grounds of review are ineffective as they seek review of the Tribunal's findings of fact. He submitted that these grounds of review disclose no jurisdictional error. He pointed out that the Court has no jurisdiction to undertake a review of the merits of the application. In doing so, he referred the Court to the decision in A v The Minister for Immigration and Multicultural Affairs (2002) FCA 238 at paragraph 8.
Mr Mantziaris submitted that the findings of fact made by the Tribunal were reasonably open to the Tribunal and that the Tribunal was under no duty to make further inquiries to make out the applicant's case. He referred the Court to the decision of Abebe v Commonwealth (1999) 197 CLR 510. He said there was no breach of procedural fairness and no jurisdictional error had been established.
Looking at the two grounds for review, I am in no doubt that the first ground in the application does nothing more than seek a review of the facts. It is well established that the Tribunal is the one that decides the facts and forms an opinion as to credibility or otherwise.
Turning to the second ground, which alleges that the Tribunal made an error in deciding that her claims were not sufficient to be considered as persecution under the Convention, to take the summons at its highest, it may be possible to characterise that ground as a matter of mixed law and fact. I have read through the reasons of the Tribunal and I am satisfied that the satisfaction of the Tribunal that the applicant's claim had not been made out comes from an assessment of the factual evidence given at the hearing by the applicant.
It is noteworthy that the Tribunal commented on the evidence of the attacks on the applicant and her relatives in 1995 through to 1997 and noted that since that time the applicant had travelled to Russia and to Finland and returned to Georgia. The Tribunal drew the inference that, at that stage, the applicant was not in sufficient fear of persecution to form a decision not to return to Georgia. Whilst she alleged in her claim to the Tribunal that there would be difficulties in practising her religion in Russia, she did not allege any physical violence by another ethnic group.
In short, the Tribunal was not satisfied on factual grounds that the applicant had made out her case. As I see it, determinations of fact are matters for the Tribunal. I have examined the decision thoroughly. There does not appear to have been any procedural unfairness, and the applicant was given ample opportunity by the Tribunal to present her case.
Unfortunately for the applicant, after hearing her evidence and considering the written evidence, the Tribunal was not satisfied that she had made out her case, that she was entitled to a protection visa. To my mind, there is no reviewable error. The application will be dismissed.
The applicant has not been successful, costs follow the event. In my view, this is a matter where I should make an order for costs.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 11 March 2005
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