SZBBZ v Minister for Immigration
[2004] FMCA 1010
•8 December 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBBZ v MINISTER FOR IMMIGRATION | [2004] FMCA 1010 |
| MIGRATION – Review of decision of RRT – where applicant’s husband was murdered – where Tribunal found no Convention nexus – where applicant claimed Tribunal did not consider relevant documents – where no evidence of existence of documents produced. |
Migration Act 1958 (Cth), s.91R(1)
Federal Magistrates Court Rules 2001
NARE v Minister for Immigration [2003] FCA 554
| Applicant: | SZBBZ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 1501 of 2003 |
| Delivered on: | 8 December 2004 |
| Delivered at: | Sydney |
| Hearing date: | 8 December 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | Applicant in person |
| Counsel for the Respondent: | Mr J Smith |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant pay the respondent's costs assessed in the sum of $4,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1501 of 2003
| SZBBZ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Latvia. She arrived in Australia on 17 August 2001. On 24 September 2001 she lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 28 February 2002 a delegate of the Minister refused to grant her a protection visa and on 27 March 2002 she applied for review of that decision. The applicant attended an interview and gave evidence before the Tribunal on 13 June 2003. On 19 June 2003 the Tribunal determined to affirm the decision not to grant a protection visa and it handed down its decision on 15 July 2003.
The factual circumstances are described in very short compass indeed in the Tribunal's decision and found at [CB 52-53].
“The applicant in her protection visa application (PVA) stated that she was born in 1960 in Latvia and is an ethnic Russian of the Orthodox faith. She is an accountant by profession ... She claims in her PVA that her life is in danger as her husband was killed by the corrupt authorities. A death certificate No 305903 indicates that a named person died in Riga on 4 September 1997 from body trauma caused by an explosion.
The delegate found that the applicant's claims were not Convention related.
In her application for review of the delegate's decision, the applicant stated that her husband's killing was politically motivated. After his death she received harsh treatment not only from the people involved in the killing but also from the Latvian authorities.
The applicant gave oral evidence to the Tribunal. She stated that after her husband's death, she was threatened after her husband's murderer was released. She does not know why he was killed. The murderers were sentenced to 12 years but released after two years. The authorities said her husband was killed for money but she does not believe it was for money as he was involved in an antique business. She does not know why they threatened her. They asked her for money and said she had to pay his debts. She went to the police and was trying to get help but they did nothing. She came to Australia to visit friends.
She understands that this information does not make her entitled to a protection visa but she cannot go home right now as she fears these people.”
The Tribunal noted that fear of revenge or extortion does not come within the scope of the convention unless it is linked with a convention reason. The Tribunal noted the effect of s.91R(1) of the Migration Act 1958 (Cth) that the motivation of the persecutor must be considered in determining the essential and significant reason for the persecution. The Tribunal noted that the applicant did not know why her husband was killed and for that reason found as a fact that he could not be satisfied that the husband's murder was convention related or that her fears were convention related. It followed that the applicant's claims were not convention related and therefore she was not a person to whom Australia owed protection obligations.
In her application to this court filed on 1 August 2003, the applicant stated that the Tribunal:
1. “...made an error of law when applying definitions of “Convention ground” and “Well founded fear”.
2. Failed to assess provided documents important to my case.”
Although the applicant was ordered to file particulars of her grounds she did not do so. Before me today the applicant said that she wanted the government to let her stay in Australia because she lives in threat back home. She said she did not necessarily think the Tribunal's decision was wrong but she did not know how Australian law could help her. She considered that her matter was exceptional. After the applicant had heard Mr Smith's submissions she told me that she received no help from the Latvian police and that the agent had documents describing how they had come around to her home demanding money. She claimed that the Latvian police were corrupt. She did not understand how her husband's murderers could have been let out after two years unless there was corruption.
Although the applicant has no onus of proof, she is required to satisfy the Department and the Tribunal that her claims have a convention nexus and that she is a person to whom Australia owes convention obligations. It is for the Tribunal to make findings of fact and to have regard or to disregard the particular evidence. Provided that the case put before it allows for findings one way or the other, the court will not interfere where the Tribunal indicates it is or is not persuaded by particular evidence. Allsop J said in NARE v Minister for Immigration [2003] FCA 554 at [10]:
“What the applicant may well not appreciate, not being a lawyer, is that the process and purpose of review to this Court does not, and cannot, involve simple re-finding of facts found by the Tribunal. Rather the review is, broadly speaking, to ensure that the Tribunal has made the decision lawfully - for instance asking itself the right question, affording procedural fairness, dealing with all matters which the Migration Act 1958 (Cth) (the "Act") says must be dealt with, not dealing with matters extraneous to its task and correctly understanding the law to apply. It is not the Court's job to review the factual findings of the Tribunal unless their quality (or lack thereof) is such as to betray a failure to undertake properly the required task. This is why it was not open to the primary judge to receive fresh evidence going to factual matters decided by the Tribunal in an attempt to demonstrate factual error in those conclusions by the Tribunal.”
I am satisfied that the Tribunal did not make an error of law when applying the definitions of convention ground and well founded fear which it considers under the heading "Definition of refugee" at
[CB 50- 52]. In regard to the second ground of application that the Tribunal failed to assess "provided documents important to my case", the applicant has provided no assistance to the court in identifying such documents. The death certificate of her husband is contained in the court book at [CB 24] and translated at [CB 26] but there are no other documents. If there were documents put before the Tribunal or before the delegate which have not found their way into the court book and which she says were not considered, then she should have provided the court with some evidence of their existence and submissions as to their relevance. She failed to do either.
In these circumstances, I am unable to find any grounds upon which the decision of the Tribunal can be reviewed for jurisdictional error. It would follow that I must dismiss the application. The applicant told me that she had a migration adviser who has disappeared. It is unclear whether he disappeared before he told her of her rights to apply to the Minister for consideration for the grant of a visa on humanitarian grounds. It would appear from the papers before me that both the delegate and the Tribunal accepted that her husband was murdered and that she might be in some danger if she returned.
I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
0