SZAZV v Minister for Immigration
[2004] FMCA 870
•19 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAZV v MINISTER FOR IMMIGRATION | [2004] FMCA 870 |
| MIGRATION – Review of RRT decision – where applicant claimed to have a well founded fear of persecution for reason of his homosexuality and religion – where there was conflicting evidence before the Tribunal regarding which city the applicant lived in – where consequently Tribunal did not accept that the applicant suffered acts of violence as claimed – whether Tribunal should have asked the applicant to produce documents which would have proved where he resided – whether Tribunal under a duty to investigate – whether findings and reasons of the Tribunal evidence jurisdictional error or a lack of procedural fairness. |
Migration Act 1958 (Cth), ss.48A, 48B
Federal Magistrates Court Rules 2001
Azzi v MIMIA [2002] 195 ALR 166
Applicant M17/2002 v MIMIA [2003] FCA 1364
MIMA v Anthonypillai [2001] 192 ALR 256
MIMIA v SGLB [2004] 207 ALR 12
SZDFO v MIMIA [2004] FCA 1192
| Applicant: | SZAZV |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 1420 of 2003 |
| Delivered on: | 19 November 2004 |
| Delivered at: | Sydney |
| Hearing date: | 19 November 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | Applicant in Person |
| Counsel for the Respondent: | Mr M Wigney |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
Application dismissed.
Applicant to pay the respondent's costs assessed in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1420 of 2003
| SZAZV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of the Ukraine. He arrived in Australia on
4 July 2001. On 14 August 2001, he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 11 October 2001, a delegate of the Minister refused to grant a protection visa and on 6 November 2001, the applicant applied for a review of that decision. The Tribunal arranged for a hearing which took place on 1 May 2003. The applicant appeared and was represented by a Migration Agent. On 30 May 2003, the Tribunal determined to affirm the decision not to grant a protection visa and it handed down that decision on 25 June.
The factual background against which the applicant claimed to have a well founded fear of persecution for membership of a particular social group and for religion was that he was a homosexual living in the Ukraine. The applicant had been married and had lived in Russia but in about 1996 he returned to the Ukraine with his partner where he established a cafe in a town known as Stryy. He claimed that he and his partner had been severely beaten in their cafe, which was also vandalised on about three occasions. He claimed that after an incident in February 2001 he complained to the police but they were unable to do anything and that he was later threatened by gangs of skinheads.
The applicant told the Tribunal that in May 2001 when he was travelling in Germany he received information that his partner had been murdered by skinheads. He returned immediately to the Ukraine for the funeral of his partner but fearing that his own life would be in danger, made arrangements to leave the country as soon as possible. The applicant did not apply for protection in Germany. The Tribunal questioned the applicant closely about a number of matters, the most important for the purposes of these proceedings was his original application to enter Australia on a sports visa. This application indicated that the applicant lived in Kiev, not in the town of Stryy at all.
At [CB 77] the following is noted by the Tribunal:
“The Tribunal put to him that he stated in his sports visa application he lived in Kiev therefore he can go to live in Kiev. He stated that he went to Kiev, just as a visitor. He was there for a few days or weeks. To live and find a job in Ukraine needs Propiska, they will find out he is a homosexual and he will have to change his job.
The Tribunal then showed the applicant a copy of his sports visa application to come to Australia. The Tribunal indicated he lived in Kiev. He did not dispute any of the contents. He stated, it is irrelevant to continue the discussion. It is a moral injury for him to continue the discussion.”
The Tribunal then goes on to deal with the migration adviser's reaction to this comment:
“The applicant's adviser stated that the applicant's original entry was arranged by fake documents. The adviser stated that the applicant is not personally responsible, he did not do anything and was not aware how it was done. For him it was just a visa, regardless of what he said in it.”
The Tribunal in its decision considered in some detail the status of homosexuals in the Ukraine and came to the conclusion based upon country information that homosexuals were not in fact a persecuted minority in that country. The Tribunal noted that the Ukraine had been amongst the first of all the former Soviet republics to legalise homosexuality. The Tribunal also considered a claim by the applicant that because he was a West Ukrainian member of the Greco-Catholic religion, he would likely suffer persecution if he moved to another part of the Ukraine. The Tribunal noted that it was unable to find any supporting evidence of persecution of members of this denomination.
The essence of the Tribunal's findings was that it did not accept that the applicant ever lived in Styy, although it did accept that he was a homosexual. It therefore did not accept that his premises were attacked and burnt down or that his partner was murdered or that they had previously been attacked on three occasions. Before me today the applicant complained that the Tribunal member had never asked him to produce his Propiska which he says would have proved conclusively that he was resident in Styy and was the owner of the cafe. He also complained that the Tribunal did not ask him to prove that he was divorced. In regard to this complaint, I do not think that it has any significance because the Tribunal appears to have accepted that he was a divorced person.
In so far as the applicant's complaints against the Tribunal are those of a failure to investigate, I am not satisfied that that is a claim which has any prospect of success: see Azzi v MIMIA [2002] 195 ALR 166 per Allsop J at [111] – [113] and the cases cited therein; Applicant M17/2002 v MIMIA [2003] FCA 1364 at [29]; MIMA v Anthonypillai [2001] 192 ALR 256 at [86]. See also MIMIA v SGLB [2004] 207 ALR 12 at [43] per Gummow and Hayne JJ with whom Gleeson CJ agreed.
Whilst I do not believe that the Tribunal was in any way at fault in not asking the applicant to provide the very information which was in his possession and which would have established the veracity of these particular claims, it may well be that if the applicant does have that information in his possession, he could persuade the Minister under s.48B of the Migration Act 1958 that s.48A should not apply and that he should have another opportunity to persuade another Tribunal of the truth of his allegations based upon the evidence which he tells me he has but which he failed to produce.
The other arguments put by the applicant in his affidavit and before me in person were, in essence, arguments attempting to persuade me that the Tribunal had made an error in its fact finding task. I commenced the hearing by reading to the applicant extensively from the judgment of Allsop J in SZDFO v MIMIA [2004] FCA 1192 at [3] – [12] and have proceeded in this judgment on the basis that my duties and responsibilities were as explained by his Honour in that helpful decision. I am satisfied that the conclusions reached by the Tribunal in this case were all conclusions which were available to it on the evidence and that none of them were reached in jurisdictional error.
I am therefore unable to find any grounds upon which this decision can be impugned and the application must therefore be dismissed. The applicant must pay the respondent's costs which I assess in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 23 November 2004
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