SZBDU v Minister for Immigration - [2005] FMCA 69

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBDU & ANOR v MINISTER FOR IMMIGRATION

[2005] FMCA 69

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicants claiming political persecution in Ukraine – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), ss.424A, 476

Minister for Immigration v Respondents S152 of 2003 (2004) 205 ALR 487

First Applicant:

Second Applicant:

SZBDU

SZBDV

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG1571 of 2003

Judgment of:

Driver FM

Hearing date:

2 February 2005

Delivered at:

Sydney

Delivered on:

2 February 2005

REPRESENTATION

The first applicant appeared in person

Counsel for the Respondent:

Mr R Bromwich

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application is dismissed.
The applicants are to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1571 of 2003

SZBDU

First Applicant

SZBDV

Second Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 20 June 2003 and handed down on 16 July 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant and his wife protection visas. The relevant claims were made by the first applicant and his wife claimed as a member of his family. They are from Ukraine and the first applicant had made claims of political persecution. The relevant background facts relating to the protection visas sought by the applicants and the RRT’s examination of their claims are set out in written submissions prepared by Mr Bromwich, on behalf of the Minister. I adopt paragraphs 1-6 those written submissions as background for the purposes of this judgment:
On 16 July 2001 the applicants, a husband (the applicant) and his wife from Ukraine, arrived in Australia (court book, page 13.5). On 14 August 2001 they applied for protection (class XA) visas. The basis for the application for the visas turned on claims made by the applicant. In a statement in support of his original protection visa application (court book, pages 29-30), the applicant said:
a)he had left Ukraine and could not go back because of his fear of the persecution that he had suffered for reasons of his political opinion;
b)he had been employed as a military engineer since the time of his graduation from a military university in Ukraine;
c)for two years he was a witness of "permanent abuses" of conscripts and young soldiers in a process known as “dedovschina” (also spelt “dedovchina” by the applicant and Tribunal and “dedovshchina” by the applicant );
d)from the beginning of his service he started to write reports to military headquarters demanding an investigation be carried out, but his complaints went to those responsible for the breaches;
e)because of these actions he became the subject of persecution and was treated in a manner which he described as an "absolute terror", being beaten by senior soldiers and his wife being threatened. On one occasion he had saved her from being raped by a gang of senior soldiers;
f)he understood that all levels of the administration of the Ukrainian army supported the existing system and there was no intention to change it;
g)as a result he decided to quit the army and start to fight with the system as a civilian activist, establishing contacts with the Union of Soldiers' Mothers of Ukraine, a non-government organisation that aims to stop dedovschina, and he provided this organisation with facts and information on the situation in his unit;
h)his activities (ie, in relation to opposing dedovschina) became known to the military administration and he was threatened and warned to stop his involvement but at the time he believed that because he was no longer a part of the military there was no means to persecute him;
i)he continued to collect information of abuses and other forms of dedovschina with some of the friends he studied at the military university with who had continued with their military service - they provided him with information from different military units throughout the Ukraine;
j)at the beginning of May 2001 he had been called to the local branch of the Ukrainian Security Service (SBU) and warned that they had information that he was trying to undermine the Ukrainian Military forces and told that they would not proceed any further with the investigation if he stopped supporting the organisation (ie, in opposing dedovschina);
k)he had tried to explain to the SBU officer his position and the purpose of his activities but was hit on the head and told that this was the last warning and then he was released;
l)at the time he received unique information from a friend about the facts and names of soldiers who were victims and the names of their abusers with a secretly recorded video tape and was positive this information had to be available to Ukrainian society but he was scared to act because of the SBU warning and decided to flee from the Ukraine;
m)he found an opportunity to pass the information to the organisation on the day he was in Kiev leaving Ukraine to Australia.
On 30 August 2002 a delegate of the respondent refused the grant of protection visa (court book, pages 43, 45-50).
On 25 September 2002 the applicant and his wife applied for a review of the delegate’s decision (court book, page 53). That application was supported by a further copy of the same statement that had supported his original protection visa application (court book, pages 57-8).
On 7 April 2003 the RRT wrote to the applicant and advised that it was unable to make a decision in his favour on the material before it and invited him to a hearing on 11 June 2003 (court book, page 61).
On 2 April 2003 the applicant accepted that invitation (court book, page 63) and he and his wife subsequently gave evidence before the RRT as scheduled (court book, page 91.3). On 26 May 2003, prior to the RRT’s hearing, it received additional documents in support of the applicant’s claims sent by a migration agent under cover of a letter dated 23 May 2003 (court book, pages 64, 65-79).
On 16 July 2003 the RRT handed down a decision made on 20 June 2003 affirming the delegate’s decision not to grant protection visas. In reaching that decision the RRT detailed the matters that had been raised by the applicant and also discussed with him by the RRT. In particular, the RRT detailed the applicant’s evidence (court book, pages 91.4-95.3) and also the evidence of the applicant’s wife (court book, pages 95.4-96.1), and put various things to the applicant, including the substance of country information (court book, page 96.2 ff). The RRT:
a)accepted that the applicant and his wife never lived in Kiev or worked for a company called Orion as represented in their applications for protection visas and also accepted that the wife was attacked in April 2000, but did not accept that this attack had anything to do with the applicant’s opposition to dedovschina, considering that it did not make any sense for him to claim that after what had happened to his wife in April 2000 he and his wife were fighting for their safety but that in April 2001 he published an article opposing the practice in the newspaper with both his name and photograph (court book, page 101.1);
b)accepted that the applicant held a political opinion opposed to the practice of dedovschina but considered that his actions after the attack on his wife in April 2000 did not support his evidence that he believed the attack was connected to his opposition to that practice or that he held a subjective fear of being persecuted by reason of his opposition to the practice of dedovschina prior to his departure from Ukraine (court book, page 101.5);
c)did not consider that the independent evidence available to the RRT supported the applicant’s claim that he was persecuted for reason of his opposition to the practice of dedovschina referring again to the enforcement practices raised with the applicant (court book, page 101.7);
d)accepted that many cases of dedovschina went unreported and unpunished but that this did not diminish the force of the point regarding official attitudes (court book, page 101.3);
e)noted that since the applicant was no longer inside the army structure it would appear that he was no better informed than organisations like the Council of Soldiers’ Mothers which are dependent on information supplied by others (court book, page 102.7);
f)noted that the applicant’s ability to publish an article opposing the practice of dedovschina in a newspaper circulating Ukraine in April 2001 suggested that there was no censorship of the kind claimed by the applicant or at least that the government did not prevent public debate in relation to the issue of dedovschina (court book, page 102.8);
g)did not accept that the applicant or his wife or her child or the applicant’s parents or his wife’s parents were threatened or attacked because of the applicant’s opposition to the practice of dedovschina and did not accept that the applicant and his wife believed that the attack on her in April 2000 was related to his opposition to that practice (court book, page 103.3);
h)did not accept that the applicant was called to the local branch of the SBU in 1999 or 2000 or May 2001 and pressured to cease his activities of opposing the practice of dedovschina or his involvement with the Council of Soldiers’ Mothers (court book, page 103.4);
i)did not accept that anything the applicant claimed to have done would have attracted the adverse attention of the Ukrainian government, the SBU or any other government agency acting officially (court book, page 103.6);
j)did not accept that the applicant had a well-founded fear of being persecuted by the Ukrainian government acting unofficially or non- government agents acting in their own interest (court book, page 103.8);
k)accepted that the applicant holds a political opinion opposed to the practice of dedovschina and accepted that he will continue to manifest this opinion, for example by publishing further newspaper articles if he returns to Ukraine now and the reasonably foreseeable future, but having a regard to the independent information referred to earlier in the reasons and the behaviour of the applicant and his wife remaining in Nadvirna for over a year after the attack on the applicant’s wife in April 2000 did not accept that the applicant had a well-founded fear that he or his wife or other members of their respective families would be threatened or attacked or otherwise persecuted by reason of his political opinion if he returned to Ukraine now or in the reasonably foreseeable future;
l)was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason if he returned to Ukraine (court book, page 104.3).
Mr Bromwich's submissions were based upon the application for judicial review, which was filed on 11 August 2003. That application did not set out any grounds. The first applicant attended a directions hearing before Registrar Kavallaris on 16 October 2003. Order 2, made by consent on that day, required the applicants to file and serve any amended application, and any evidence upon which they proposed to rely by 30 December 2003.
The first applicant filed an amended application exactly one year later on 30 December 2004. It was not served on the Minister. That application is relied on by the applicants and raises two grounds. The first ground relies upon the now repealed s.476(1)(g) of the Migration Act 1958 (Cth) (“the Migration Act”). However, under the general law, the ground of no evidence is potentially available to the applicants. The first applicant elected to press that part of the application on the basis that there was no evidence for three relevant findings by the RRT.
These findings were first, that the Ukrainian authorities did not support the practice of dedovschina. Secondly, a variety of human rights groups operate in Ukraine without government restrictions. Thirdly, a variety of newspapers are available in Ukraine with different political points of view.
The second ground of review relies upon an asserted breach of s.424A(1) of the Migration Act. However, the amended application gives no particulars.
I gave the first applicant the opportunity this morning to identify any information upon which the RRT relied in making its decision which should have been disclosed to him and had not been. He was not able to do so, and as is pointed out in his written submissions, he asserts that he has been unable to listen to the audio recording of the RRT hearing because of problems with the tape. The first applicant sought more time to provide evidence in support of that ground. I declined that request on the basis that the applicant has had well over 12 months in order to identify any information supporting the RRT decision that was not disclosed to him and which should have been. In particular, the court book, which I received as evidence for the purposes of these proceedings, has been available since 30 October 2003.
Because of his inability to identify today any material that was not disclosed that should have been, the applicant elected not to press the ground based upon s.424A(1) of the Migration Act. I permitted the applicant to otherwise rely upon his amended application, notwithstanding the one year's delay in filing it and the failure to serve it on the Minister. I also permitted the applicant to rely on additional grounds identified in his written submissions which were filed in court by leave this morning. I permitted the applicant to rely upon those additional grounds on the basis that Mr Bromwich was able to deal with them without prejudice to the Minister's position during the course of the hearing this morning.
In his written submissions, the applicant refers to country information which he presented to me and which is also reproduced in the court book from page 106. The applicant asserts that that country information points to human rights abuses in Ukraine and violence in the Ukrainian armed forces. That is so but that is a contest with the merits of the RRT decision.
The material was before the RRT and was taken into account by it. The presiding member recognised that the available country information pointed to some significant human rights problems in Ukraine, and violence in the Ukrainian armed forces. The country information does not, of itself, point to any jurisdictional error in the decision of the RRT.
In his written submissions, the applicant asserts that the RRT failed to consider the right question. I accept that such an error can constitute jurisdictional error. The first applicant asserts that the RRT addressed the issue of the ability of Ukrainians to express their political opinion when it should have addressed the issue of whether Ukrainians are persecuted for expressing those political opinions. As Mr Bromwich pointed out in his oral submissions, that assertion can be addressed at two levels. First, the available country information, which pointed to a vigorous public debate on the issue of dedovschina was available to the RRT as evidence of a lack of persecution for the expression of those views. I accept the proposition that in the absence of positive evidence of persecution for expressing a particular view, it is open to the RRT to treat evidence of the vigorous expression of particular views over time as evidence of an absence of persecution.
Secondly, it is plain from the decision and reasons of the RRT that the presiding member did consider the applicant's claims of having been persecuted from expressing views in opposition to dedovschina. On pages 101 to 103 of the court book, the presiding member rejected those claims. The rejection of the applicant's claims of persecution was reasonably open to the RRT on the material before it. I reject the contention that the RRT failed to consider the right question.
The third issue raised in the first applicant's written submission is that the RRT failed to consider the question of future harm in light of available information relating to facts of persecution of journalists in Ukraine. This ground indicates a misunderstanding by the applicant at two levels. First, while there was material before the RRT indicating that some journalists in Ukraine had suffered harm, probably because of the expression of their views, it did not follow that the applicant would suffer harm because of his expression of views about dedovschina. Secondly, the presiding member had rejected the applicant's claims to have suffered harm in the past because of his expression of views in opposition to dedovschina. Having emphatically rejected those claims, the presiding member did not need to consider them as if they were true. Further, as was pointed out by Mr Bromwich in his oral submissions, where the RRT finds that no harm is reasonably feared in the future, there is no need to consider whether effective protection is available against such harm. Mr Bromwich took me to the observations of the High Court in Minister for Immigration v Respondents S152 of 2003 (2004) 205 ALR 487 at paragraph 29 on that issue. I accept that submission. On page 104 of the court book the presiding member made a positive finding that the applicant and his wife did not have a well founded fear that they would be harmed in the future should they return to Ukraine. I reject the contention that there was a jurisdictional error committed by the RRT in failing to consider the question of future harm in light of available country information.
There is no substance to the no evidence ground in the amended application. I accept that the three issues were addressed by the RRT as is apparent from pages 101 and 102 of the court book. The issues were discussed with the first applicant as is apparent from page 96 of the court book. The presiding member had before him country information appearing on 108 and 109 of the court book supporting the three findings identified by the applicant. There was some evidence supporting each of those findings. Accordingly, the no evidence ground must fail.
I find that there was no jurisdictional error in the decision of the RRT. It follows that the decision of the RRT is a privative clause decision.
The application must be dismissed.
On the question of costs Mr Bromwich seeks an order for costs fixed in the amount of $4,500 on a party/party basis. I am satisfied that costs of $4,000 have been reasonably and properly incurred on behalf of the Minister assessed on a party/party basis. The applicant did not make any submissions on costs after I pointed out to him that his ability to pay could be discussed with the Minister's lawyers following the hearing.
I will order that the first and second applicants pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $4,000.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 4 February 2005