SZBDN v Minister for Immigration
[2005] FMCA 91
•31 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBDN v MINISTER FOR IMMIGRATION | [2005] FMCA 91 |
| MIGRATION – Review of decision of Refugee Review Tribunal – failure to provide a source of information – failure to consider future harm – merits review – privative clause decision – no error of law – application out of time – application incompetent – application dismissed. Migration Act 1958 (Cth) Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 |
| Applicant: | SZBDN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1566 of 2003 |
| Delivered on: | 31 January 2005 |
| Delivered at: | Sydney |
| Hearing date: | 31 January 2005 |
| Judgment of: | Mowbray FM |
REPRESENTATION
| Advocate for the Applicant: | In person |
| Counsel for the Respondent: | Ms Pepper |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The objection to competency be upheld.
The application be dismissed.
The applicant pay the Minister’s costs and disbursements of and incidental to the application fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1566 of 2003
| SZBDN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTRAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment which has been revised and edited from the transcript. It relates to a decision of the Refugee Review Tribunal (the Tribunal) made on 19 November 2002 and handed down on 12 December 2002.
The applicant is a citizen of Latvia, but of Russian ethnicity. His wife, who at the time of the claim before the Tribunal was his fiancée, has a separate claim before this Court.
The applicant arrived in Australia on 9 April 1998 on a student visa and on 30 August 2001 he applied for a protection visa. This application was refused by a delegate of the Minister on 31 December 2001. The applicant lodged an application with the Tribunal seeking review of this decision on 29 January 2002 and a hearing was held on 11 October 2002. The decision which was handed down on
12 December 2002 affirmed the decision of the delegate of the Minister.
The applicant's claims before the Department and the Tribunal
The applicant’s claims centred upon his concern that he would be persecuted in Latvia because of his Russian ethnicity and because of his membership of a particular social group consisting of the members of the family of his then fiancée’s, now wife’s, mother.
He also claimed in his written statement and at an interview with the delegate of the Minister that he feared persecution from Latvian nationalists and experienced difficulties in Latvia as an ethnic Russian.
He claimed that his fiancée’s mother had been subject to various forms of oppression and had lived in fear. The fiancée’s mother was targeted for having committed crimes which she denied having committed. The charges related to involvement in the black market and illegally exporting national treasures. The accusations were published in newspaper articles which the applicant provided to the Tribunal. He claimed that his fiancée’s mother was accused and suffered worse treatment at the hands of the authorities primarily because of her Russian ethnicity.
The applicant further claimed that he himself would be persecuted as a member of a social group which constituted the mother-in-law’s family, as he would be known to be related by marriage to this family.
The Tribunal proceedings and decision
The Tribunal’s decision is accurately summarised in the respondent’s submissions at paragraphs 6 to 8:
6.The Tribunal found that the applicant is a Latvian citizen on the basis of the applicant’s Latvian passport. Significantly, at the hearing the applicant stated the reason he left Latvia was to travel and study abroad and not because of any conflict he may have been involved in with nationalist Latvians. In this regard the Tribunal noted that the applicant no longer based his claims on whether or not he had suffered harm amounting to persecution in Latvia prior to his departure, rather his claim was a sur place one: the events involving the applicant’s fiancée’s mother occurring while the applicant was in Australia.
7.The Tribunal accepted that the applicant was a member of a particular social group, namely, the family of his future mother-in-law but found that his claims were not borne out by the documentary evidence he provided in support of them, much of which was actually sympathetic to his future mother-in-law. Thus the Tribunal rejected the claim that there was a press campaign designed to vilify his future mother-in-law, and moreover, rejected the claim that any such vilification was based on her ethnicity. Rather if any anti-Russian sentiment was directed at her it was on a random and individual basis and was not state sanctioned.
8.The Tribunal noted that the applicant’s future mother-in-law was able to access the law and the courts like any other citizen and that she returned to Latvia on a Latvian passport for two months and that she had not suffered any harm during this period.
In addition the Tribunal stated at Court Book page 110:
The applicant himself made no claims, nor does the evidence suggest, that he suffered harm (let alone amounting to persecution) for reason of his ethnicity (or any other Convention reason) before his departure from Latvia. He made reference to a couple of run-ins with nationalist youth but said specifically it was not part of the reason that he left Latvia. His adviser originally made written claims about persecution on the grounds of race but the applicant did not follow these up at hearing. The independent evidence indicates that Russians in Latvia are not subject to persecution within the meaning of the Convention. On the evidence before it, the Tribunal is not satisfied that the applicant has a well founded fear of persecution for reason of his race.
The Tribunal is not satisfied that during the period of the applicant’s absence from Latvia, his fiancée’s mother suffered harm of a type or gravity that could be called persecution for reason of her ethnicity (or other Convention reason). It follows that the Tribunal is not satisfied that the chance that the applicant will be harmed in the reasonably foreseeable future for reason of his association with his future mother-in-law (membership of a particular social group) is greater than a remote chance.
On all the evidence before it, the Tribunal is not satisfied that the applicant has a well founded fear of persecution for a Convention reason. He is not a refugee.
Consideration
The applicant set out four grounds in his application to the Court, some of which he expanded on at the hearing. I consider each of these in turn below.
Ground one
The applicant stated ground one as: “The Tribunal totally ignored information provided by me and by my wife”. The applicant was unable to detail this ground in any real sense at the hearing, apart from saying that there were a number of small matters which, if corrected and taken as a whole, would present a very different picture of life in Latvia for those of Russian ethnicity. For instance, he referred to factual errors in relation to his mother-in-law: the nature of her passport, what happened to her when she returned to Latvia and the nature of her access to the Courts.
It is clear to me that this ground really amounted to a dispute with the Tribunal’s fact-finding. The applicant did not point to any essential element in his claim which the Tribunal had failed to consider. In the applicant’s view, the Tribunal really got a series of facts wrong. This does not constitute a legal error.
This ground must be dismissed.
Ground two
Ground two was “The Tribunal failed to provide me with a source of information regarding [the] situation in Latvia”. Some further detail on this ground is set out in the “Applicant’s Outline of Submissions” handed up today:
First of all I wish to address the Tribunal’s failure to provide me with certain information, which was the reason (or at least a part of the reason) to affirm the delegate’s decision. During the hearing the Tribunal provided me with a great deal of information related to the issue of human rights in Latvia. However, it did not give me the source of such information. Given the fact that I, personally (as well as my wife and her brother) provided the Tribunal with concrete evidence (i.e. newspapers’ articles) and evidence (human rights reports) published by concrete organisations, such as Latvian Human Rights Committee, the Tribunal had to provide me with particulars, e.g. the sources of information, and give me an opportunity to comment upon it.
I agree with Ms Pepper for the Minister that the essential element in this ground is the applicant’s concern that he was not provided with the source of the information rather than concern over the particulars of the information. This is made clear in the ground in the original application and also in the outline of submissions presented at the hearing.
No evidence has been provided that he in fact did ask for the source of information, but that is not particularly relevant. This is because there is no obligation on the Tribunal, under section 424A of the Migration Act 1958 (Cth) (the Act), to provide this information to the applicant given the exclusion in sub-section (3)(a). The information was not personal to the applicant, but rather of a general nature.
Furthermore, under common law procedural fairness, there is no breach. It is clear that the applicant was provided with the substance of that information at the hearing, that is, that the situation for Russians in Latvia was reasonably good. I cannot see how what the applicant has alleged can amount to a breach of natural justice in common law and certainly it cannot amount to any practical unfairness, as understood by the High Court in Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1.
Ground three
The applicant states ground three as follows:
The reasons the Tribunal put forward to justify it’s decision were incorrect (e.g. the Tribunal stated that my mother was Latvian)
In his outline of submissions presented at the hearing the applicant said:
Second off [sic] all, the Tribunal made a noticeable error, which, to some extend [sic] lead to its decision. The Tribunal stated that my mother was of Latvian origin.
My mother is Russian. This is critical, because there was information available to the Tribunal, according to which Russians have been discriminated against in Latvia. If, the Tribunal had [queries] or doubts regarding my mother’s ethnicity it was to, pursuant to s. 424A(1) of the Act, address the question, to make sure that I understood the relevance of it and give me an opportunity to comment upon it.
It is true that the Tribunal did say at page 102 of the Court Book that the applicant’s mother’s side of the family was Latvian. But there is nothing in the Tribunal’s decision to suggest that it relied upon this factual finding in reaching its conclusions. The applicant conceded this at the hearing. Moreover there is nothing in the Tribunal’s findings and reasons at Court Book pages 106 to 110 to suggest that this factual finding was particularly pertinent to its conclusions. This ground essentially goes to a disputed factual matter and does not point to any legal error.
Ground four
Ground four was “The Tribunal failed to consider future harm I’ll [be] subjected to should I go back to Latvia”. I earlier quoted from the Tribunal’s decision at Court Book page 110. It is obvious from the quotes that the Tribunal did consider whether the applicant would be harmed in the reasonably foreseeable future if he were returned to Latvia. This ground must also be rejected.
Conclusions
The application and supporting affidavit are deficient in that they do not detail anything in relation to the Tribunal decision or proceedings to assist the Court in determining whether any reviewable legal error is disclosed in the decision. I invited the applicant at the hearing to elaborate on anything that might assist in identifying a legal error, but apart from reiterating his dispute with the findings of fact made by the Tribunal and some rather vague and general assertions about the failure to provide sources of information, he was not able to expand upon his application and affidavit in any convincing way.
Counsel for the Minister has submitted to me that the application must be dismissed as no reviewable legal error has been disclosed and that it is incompetent as it was lodged outside the 28 day period required by section 477(1A) of the Act. I agree.
It is apparent that the applicant’s major dispute is with the findings of fact, something with which I cannot interfere. These findings were reasonably open to the Tribunal on the material before it.
I am satisfied that the Tribunal made no legal error going to jurisdiction in coming to its decision.
The decision of the Tribunal is a privative clause decision having regard to the High Court authority in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
In the circumstances, I uphold the objection to competency and dismiss the application.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Kelisiana Thynne
Date: 9 March 2005
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