SZBDU v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 742

FEDERAL COURT OF AUSTRALIA

SZBDU v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 742

MIGRATION  – no point of principle

SZBDU and SZBDV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 282 of 2005

JACOBSON J
10 JUNE 2005

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 282 of 2005

On Appeal from the Federal Magistrates Court

BETWEEN:	SZBDU FIRST APPELLANT
SZBDV SECOND APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	10 JUNE 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 282 of 2005

On Appeal from the Federal Magistrates Court

BETWEEN:	SZBDU FIRST APPELLANT
SZBDV SECOND APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	JACOBSON J
DATE:	10 JUNE 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1. This is an appeal from a decision of Federal Magistrate Driver given on 2 February 2005, dismissing an application for review of a decision of the Refugee Review Tribunal (“RRT”) handed down on 16 July 2003.  The RRT affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) refusing to grant the appellants' protection visas.

2. The appellants are husband and wife.  They are citizens of the Ukraine.  The wife's claims are dependent on the husband’s, and I will refer to the husband as the appellant.

3. The appellant claims to have a well founded fear of persecution by reasons of his opposition to a practice in the Ukraine known as ‘dedovshchina’ or violent abuse of young soldiers by senior soldiers in the Ukraine Army, and also by reason of steps taken by him in the Ukraine to oppose that practice. 

4. The appellant’s claim may be regarded as being put on the basis of a well founded fear of persecution on political grounds, although today he put it in a way which indicates that he may be claiming to have a well founded fear on the ground of membership of a particular social group, namely journalists.

   Background

5. The appellant claims to be qualified as a military engineer in the Ukraine.  He claimed in his application for a protection visa, and also before the RRT, that he had witnessed the practice of dedovshchina during the two years he spent in the Ukraine Army between June 1998 and April 2000.  He said that from the beginning of his time in the military, he complained about the practice to Military Headquarters, and that as a result he had been persecuted. 

6. The appellant claimed that he had been beaten by senior soldiers, and that his wife had been threatened.  He gave evidence that in April 2000, he had saved his wife from being raped by senior soldiers.

7. The appellant claimed that he had decided to leave the army and fight the system of dedovshchina as a civilian activist.  He said that he had established contact with the organisation known as the Union of Soldiers Mothers of the Ukraine (sometimes referred to as the Council of Soldier’s Mothers), a non-government organisation which aims at stopping the practice.  The appellant claimed that in May 2001, he had been called to the local branch of the Ukraine Secret Service (“the SBU”) and had been warned against trying to undermine the Ukrainian Military.  He said that he had been told that the SBU would not proceed with an investigation of him if he stopped supporting the Union of Soldiers Mothers.  He said he had been hit on the head and released.

8. In the course of the oral hearing, the RRT noted that as the applicant had himself mentioned, there were organisations such as the Union of Soldiers Mothers openly campaigning against the practice of dedovshchina .  The RRT put to the appellant that the United States State Department had reported that a wide variety of human rights groups operated in the Ukraine without government restriction.  The RRT recorded that the appellant agreed with this, and that there were a lot of newspapers in the Ukraine, but the appellant said that they were not really independent. 

9. The RRT said that the appellant had given the following evidence:-

   “The applicant said that he agreed that there was a big variety of organisations and there were a lot of newspapers, but they were not realy independent.  There was no real democracy in Ukraine.  All information was censored by the Government, which decided what to show and what to debate.  He repeated that he had been ‘inside the structure’ and that he had therefore been pressured.  He referred to the fact that he had published an article with his name and his picture.  He mentioned the case of the journalist Gongadze, who had been killed.”

10. The RRT accepted that the appellant's wife was attacked in April 2000.   However, it did not accept that the attack had anything to do with the appellant's opposition to the practice of dedovshchina .  The RRT said:-

    “Whilst I accept that the Applicant holds a political opinion opposed to the practice of dedovshchina, I consider that his actions after the attack on his wife in April 2000 do not support his evidence that he believed the attack was connected with his opposition to the practice or that he held a subjective fear of being persecuted by reason of his opposition to the practice prior to his departure from the Ukraine.”

11. Furthermore the RRT considered that the appellant's claim was not supported by independent country information.

12. As to the appellant's claim about freedom of expression, the RRT said that the appellant's ability to publish a press article in the Ukraine opposing the practice of dedovshchina  suggested that the Ukrainian government does not prevent public debate about opposition to the practice.  The RRT said:-

    “Having regard to the independent evidence regarding the ability of  organisations like the Council of Soldier’s Mothers and human rights groups generally to operate in Ukraine without government restriction, and the evidence that a wide variety of newspapers are available in Ukraine with different political points of view and that there is an active debate over sensitive questions in the mass media (US State Department, Country Reports on Human Rights Practices in 2001 in relation to Ukraine, Sections 2.a, Freedom of Speech and Press and 4, Government Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights), I  do 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 dedovshchina in the army in Ukraine.  For reasons given above, I do not accept that the Applicant and his wife believed that the attack on her in April 2000 was related to his opposition to the practice of dedovshchina in the army in Ukraine.”

13. Nor did the RRT accept that the appellant was called to the local branch of the SBU and pressured to cease his activities. 

14. The RRTs findings were summed up in a passage, which sets out the essence of the RRTs reasons.  It is as follows:-

    “The Applicant’s representative submitted that the authorities had used illegal methods against the Applicant and both he and the Applicant suggested that there was a parallel with the famous Ukranian journalist Gongadze who was killed, allegedly by persons acting on the orders of the President.  However, having regard to the ability of organisations like the Council of Soldiers’ Mothers to operate openly, and having regard to the Applicant’s own behaviour in continuing to live in Nadvirna for over a year after the attack on his wife in April 2000, I do not accept that the Applicant has a well-founded fear of being persecuted by government agencies acting unofficially or non-government agencies acting in their own interests.  As I have said, I accept that the Applicant holds a political opinion opposed to the practice of dedovshchina, and I accept that he will continue to manifest this opinion, for example publishing further newspaper articles, if he returns to Ukraine now or in the reasonably foreseeable future.  However, having regard to the independent evidence referred to above, and the behaviour of the Applicant and his wife in remaining in Nadvirna for over a year after the attack on the Applicant’s wife in April 2000, I do not accept that the Applicant had a well founded fear that he or his wife or other members of their respective families will be threatened or attacked or otherwise persecuted by reason of his political opinion if he returns to the Ukraine now or in the reasonably foreseeable future.”

    Federal Magistrates’s Decision

15. The application for review in the Federal Magistrate's Court raised two grounds. The first was a ‘no evidence’ ground. The second was a failure to comply with section 424A of the Migration Act 1958 (Cth) (“the Act”).

16. The appellant failed on the no evidence ground and does not seek to pursue it on appeal. He was unable to identify before the Magistrate any material that was not disclosed for the purpose of section 424A of the Act. As his Honour said at [7] of his judgment:-

    “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.”

17. The effect of this is that the matters that were put to me in argument this morning, were matters which were not raised before the Federal Magistrate. 

    Discussion

18. The appellant appeared without legal representation.  An interpreter was present.   She sometimes made and then corrected errors in her translation, however I am satisfied that I understood the full nature of the appellant's argument.

19. The appellant's wife did not put any submissions.  She was present in court but as I have said her claims are dependent upon her husbands.

20. The substance of the appellant's argument was that the RRT had failed to consider an aspect of his claim.  This was that he was a journalist who had spoken out against the practice of dedovshchina, and that a famous journalist named Gongadze, had been killed for his activities which were similar to those of the appellant. 

21. Whether the appellant's claim is construed as being based on political opinion or membership of a social group, it was incumbent upon the RRT to look at the circumstances put forward by the appellant in support of this ground. It seems to me that the passage which I set out at [14] above, which I said summed up the RRTs reasons, shows that the RRT dealt with the claim as made by the appellant in the RRT. It is plain from this passage that the RRT considered the appellant's submission about the parallel with Gongadze, but it considered that as a consequence of its findings about the ability of the Union of Soldiers Mothers to operate openly in the Ukraine, and its other findings as set out in that passage, that the appellant did not have a well founded fear of persecution.

22. The RRT therefore addressed the necessary integers of the appellant's claim, which were that he had a well founded fear of persecution by reason of what the military was doing in the Ukraine, and his subjective fears arising from the steps he has taken to oppose the practice of dedovshchina.

23. The appellant's other complaints about the RRTs findings, amounted to an attack on the merits.  It is not for me to express any view about the merits of the case as determined by the RRT.  An attack on the merits, of course, cannot be a ground of review or a ground of appeal. 

24. The appellant referred to two previous cases, which he said supported his argument.  The first was a proceeding in the Federal Magistrates Court, matter number SYG2563/2003.  The appellant handed up the written submissions of counsel for the applicant in that matter.  He also handed up what was apparently a consent order made in proceeding quashing the decision of the RRT. 

25. Even assuming that the document entitled ‘Consent Order’ contained orders which were, in fact, made, it is impossible to tell whether the reason for such orders was that they reflected the submissions put by the applicant in that case.  The essential submission was that the RRT had applied too narrow a test of persecution, but even if that was so, no such issue arises in the present case.  Accordingly, the first case relied upon by the appellant is of no assistance.

26. The second case was also from the Federal Magistrates Court.  It was matter number SYG1088/2003.  The appellant handed me a copy of an amended application filed by the applicant in that matter, SZATV.  The effect of what was put in the application was that a ground of review was that the RRT had approached that matter upon the footing that the applicant, who was a journalist, could avoid persecution in the Ukraine if he did not work as a journalist in the country. 

27. Thus the ground of review raised in the Federal Magistrates Court was that there had been jurisdictional error of the kind referred to by the High Court in AppellantS395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 216 CLR 473. That is to say, it is no answer to a claim for protection that a refugee can avoid persecution by hiding the fact that he or she holds the beliefs in question.

28. However, that issue does not arise in the present case because the RRT specifically accepted that the appellant holds the political opinion of opposition to dedovshchina , and that he will continue to publish further articles if he returns to the Ukraine.  Accordingly, the second decision is of no assistance.

29. In view of the fact that the appellant was unrepresented this morning, I think it is appropriate to deal very briefly with the argument which he apparently wished to put based on section 424A(1), but which he then withdrew. It seems to me that even if the appellant had not withdrawn this ground of appeal, it would have been bound to fail.

30. It is evident from the passage that I have set out above, that the information about Gongadze was not a reason or a part of the reason of the RRT to affirm the decision of the delegate; see VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [29] and [33]. See also Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 at [115].

31. Moreover the information about Gongadze was just about a class of persons of which the appellant was a member and it was information which the appellant himself gave for the purposes of the application. It, therefore, fell within the exceptions in section 424A(3)(a) and (b) of the Act.

32. The matters raised in argument, were not run in the Federal Magistrates Court.  The Minister's counsel submitted that the appropriate course was that I ought not to have given leave to the appellant to raise those grounds on appeal. 

33. I do not consider the arguments to have "clear merit".  Accordingly, it does seem to me that the appropriate order is to refuse leave to argue the grounds of appeal which I have considered above; see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46].

34. Accordingly, the order I will make is that the appeal be dismissed with costs.

35. I would add, by way of postscript, that it is open to the Minister under section 417 of the Act, if she thinks it is in the public interest to do so in light of the finding of the RRT that the appellant did save his wife from attack, to substitute a decision that is more favourable to the appellant.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:             15 June 2005

The appellant appeared in person
Counsel for the Respondent:	Mr R Bromwich
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	10 June 2005
Date of Judgment:	10 June 2005