SZCSC v Minister for Immigration

[2006] FMCA 822

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCSC v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 822

MIGRATION – Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no reviewable error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 424A, 483A

Yo Han Chung v University of Sydney & Ors [2002] FCA 186
Kopalapillai v Minister for Immigration (1998) 86 FCR 547
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407
SAAP v Minister for Immigration [2005] HCA 24
SZEEU v Minister for Immigration [2006] FCAFC 2
W148/00A v Minister for Immigration [2001] FCA 679

Applicant: SZCSC

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG382 of 2004

Judgment of: Lloyd-Jones FM

Hearing date: 8 May 2006

Delivered at: Sydney

Delivered on: 30 June 2006

REPRESENTATION

Advocate for the Applicant: The applicant appeared in person with the assistance of a Russian interpreter

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The Refugee Review Tribunal is joined as the second respondent.

2. The application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to this application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG382 of 2004

SZCSC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

1. These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 16 February 200,4 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 30 December 2003 and handed down on 21 January 2004, affirming a decision of the delegate of the first respondent made on 22 August 2002 refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief against the decision of the Tribunal.

2. The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZCSC”.

3. The applicant has not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].

Background

1. The Tribunal decision of Giles Short, reference N02/44298, contains the following background information.  The applicant, who claims to be a citizen of Belarus, arrived in Australia in September 2000.  On

   
   

   8 November 2000, he lodged an application for a Protection (Class XA) visa with the Department of Immigration under the Act. On

   
   

   22 August 2002, a delegate of the Minister refused to grant a protection visa.  On 10 September 2002, the applicant applied to the Tribunal for review of the delegate’s decision.(Court Book (“CB”) 271)

2. According to his original application, the applicant is aged in his early forties and is married with two children, all of whom remain in Belarus.  He qualified as an engineer at a polytechnical institute in Minsk in 1983.  He then worked in that capacity in various firms in Grodno until he left Belarus to come to Australia in September 2000.  The company which he worked for most recently delivered and installed computers, computer components and spare computer parts to different places in Belarus and Poland.  The applicant travelled frequently to Poland during the course of his work.  In the statement accompanying his original application, the applicant said that he had had a long involvement in the trade unionism in Belarus and that he had been an activist in the independent trade union movement (in opposition to the officially registered Federation of Trade Unions of Belarus or FTUB).  He said that he had been a trade union coordinator in Grodno.  However, at the hearing he indicated that this was not correct and that he had been an activist before joining the Belarusian Popular Front (“BPF”).(CB 274-275)

3. The applicant claims that as a result of his involvement in demonstrations organised by the BPF, he had been arrested nine times.  He said that on two occasions he was given a 15 day prison sentence for participating in demonstrations and that on another three occasions he had been heavily fined.  He claims that on the remaining occasions he had paid a small fine or was given warnings.(CB 275)

4. The applicant claims that the KGB became interested in him because of his political activities.  He said that they knew about his arrests, were tapping his telephone and reading his mail.  The applicant says he knew this because he was called to the KGB on the first occasion and told of things which they could only have known in this way.  He said that he had been called to the KGB in mid-May 2000 and again in the beginning of June.  He said that they wanted him to give details about the BPF and that they threatened to prevent him from travelling to Poland on business.  He claims that they also threatened his family.  He claims, however, that he refused to act as an informer.(CB 282)

The tribunal’s findings and reasons

1. A convenient summary of the Tribunal’s findings and reasons was contained in the first respondent’s written submissions, prepared by Mr Reilly:

   4.The Tribunal found that the Applicant was not credible, had fabricated all his claims of past harm and political involvement in Belarus and did not even genuinely fear harm there.  The Tribunal noted that the Applicant had not been truthful in his evidence in a number of respects until questioned by the Tribunal; that the majority of the documents he had submitted in support of his claims had been found on investigation not to be genuine; and that his claims were in numerous respects inconsistent and implausible.  The Tribunal concluded that the Applicant was not a member of the BPF, had not taken part in demonstrations as he claimed and had not been arrested or assaulted as a result: CB 303.3, had not been approached and threatened by the KGB: CB 303.7, and did not even have any genuine subjective fear of harm in Belarus: CB 304.1.

Application for review of the tribunal’s decision

1. On 16 February 2004, the applicant filed an application for review under s.39B of the Judiciary Act setting out the following grounds:

   1.The RRT failed to recognise that I have no protection from the Belarussian Authorities.

   2.Despite a strong evidence of political prosecution in Belarus the RRT refused to believe that I would be in danger if I return to Belarus. (copied without alteration or correction)

2. On 24 January 2006, the applicant filed an amended application which repeated the two grounds from the original application and added a new ground which states:

   3.I request that my case be returned to the RRT for re-consideration. (copied without alteration or correction)

Reasons

1. The applicant is a self-represented litigant and appeared with the assistance of a Russian interpreter.  At first directions, the applicant indicated his desire to participate in the Court’s Legal Advice Scheme and he was subsequently allocated a panel lawyer.  The applicant attended a conference with the panel lawyer and received advice.  At first directions before a Registrar, the applicant was also ordered to file and serve an amended application, giving complete particulars of each ground of review he relied upon.  As noted above, the applicant complied with this order and filed an amended application, although the grounds were repeated from the original application with a complete absence of particulars.  The applicant was further ordered to file written submissions 14 days prior to the final hearing and also complied with this order.  The submissions again repeat the grounds contained in the original and amended applications, and raise two new issues, which have not been formally identified as grounds.  As the applicant is a self-represented litigant, I will treat these as further grounds.

2. The applicant claims that the use of country information is unsuitable in respect of the circumstances surrounding the applicant’s complaints. However he acknowledges they contain no information that is not in wide circulation. The applicant also complains that his identity and location was provided to the Belarus Government as a result of the delegate’s quest for information to verify details with respect to the applicant.

3. The applicant sought leave of the Court to read and refer to written notes that he had prepared to assist him in the presentation of his oral submissions.The substantial part of his submissions were read out and translated to the Court.The applicant indicated that he intended to address three claims in the course of his oral submissions.  Although the applicant identified three issues that he wished to raise orally before the Court, the common thread throughout the submissions was the delegate’s contact with and enquiries made to the Belarus Government.  This resulted in the applicant’s government identifying him as being in Australia and seeking protection from Australia.

4. The applicant complained that due to the release of his confidential information to the Belarus authorities, his position was seriously compromised should he be required to return to Belarus.  The applicant took the Court to the various correspondence forwarded by the delegate to authorities in Belarus.  He indicated that although his identity had been removed from those documents, he had received information from Belarus that the authorities were aware of his identity and that these requests related to him.  He claims that he had warned the delegate prior to them launching their enquiries of the difficulty that he would suffer should his identity become known.  During the applicant’s submissions, he also raised his involvement with BPF and the resulting persecution that he had suffered due to that involvement.  The applicant provided details of arrests that had occurred during the various demonstrations and emphasised the level of penalties that were imposed by the authorities for those caught participating in these activities.

5. Mr Reilly, appearing for the respondents, first addressed in his written submissions the Tribunal’s findings in respect of the applicant’s credibility.  The Tribunal found that the applicant had fabricated all of his claims of past harm together with his political involvement in the BPF and did not accept that the applicant had a genuine fear of harm from the Belarus authorities.  It was submitted that the Tribunal found the applicant had not been truthful in his evidence in a number of respects, and this had become apparent during the questioning by the Tribunal at the hearing.  The Tribunal also found that upon further investigation, many of the documents submitted by the applicant in support of his claim were not genuine.  It emerged during the hearing that many of the applicant’s claims were inconsistent and implausible.  The Tribunal concluded that the applicant was not a member of the BPF, had not taken part in demonstrations as he claimed, and had not been arrested or assaulted as a result.(CB 303.3)  Similarly, the applicant had not been approached and threatened by the KGB as he had claimed.(CB 304.1)

6. Mr Reilly submits that these findings of the Tribunal are matters of fact par excellence: Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J. Provided that the Tribunal’s credibility findings were open to it on the material presented, then no error arises: Kopalapillai v Minister for Immigration (1998) 86 FCR 547 at 558 to 559; W148/00A v Minister for Immigration [2001] FCA 679 at [64] to [69] per Tamberlin and Nicholson JJ. On a review of the Tribunal decision under the heading ‘Findings and Reasons’, where the Tribunal sets out in considerable detail all of the material it has considered and the determination of the applicant’s credit and the conclusions drawn, no apparent error is identifiable. I believe that the Tribunal has made its credibility finding in accordance with the principles expressed in Kopalapillai v Minister for Immigration.

7. Mr Reilly submits that the applicant’s original and amended application, his affidavit and submissions, seek a merits review which is not available in this Court: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [31] per Brennan CJ, Toohey, McHugh and Gummow JJ:

   31.…any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.

   A merits review is an assessment of the appropriateness of a decision, as distinct from judicial review, which focuses on the lawfulness of the earlier decision.  This is not a hearing de novo.  It is inappropriate for this Court to make its own assessment of the evidence or the applicant’s credibility.

8. The substantive part of the applicant’s submissions to this Court during this hearing was the claim that the delegate provided the Belarus authorities with documents seeking verification, which had the effect of identifying the applicant and his circumstances to those Authorities.  The applicant claims that the consequence of this action is that his life is now in danger.  The documents in question are contained at CB 73-76.  The Australian Embassy in Moscow forwarded a letter addressed to the Soligorsk City District Department of Internal Affairs requesting them to verify whether the attached summonses were genuine.(CB 73)  The three separate summonses attached to that letter had the applicant’s name removed or obliterated from those documents to protect his identity.

9. In the Tribunal decision under the heading ‘Evidence’, in respect of enquiries made after the applicant’s departure from Belarus, the Tribunal sets out in detail the method of preparation adopted by the it prior to forwarding the documents to the Belarus authorities.  The Tribunal records that its enquiries of the Belarus authorities had not disclosed any details of the applicant, nor the Tribunal’s reasons for making the enquiry.  There is nothing to suggest that the Tribunal had made the authorities aware of the applicant’s claim or his circumstances within Australia.

10. The Tribunal relied on independent country information that the Belarus authorities would have no interest in the applicant due to his claim of asylum within Australia.(CB 291.7, 304.7) Mr Reilly submits that the applicant’s disagreement with this assessment by the Tribunal is again a disagreement with the merits of the Tribunal’s decision, rather an identification of any genuine jurisdictional error. An issue that has not been raised by the applicant but must be addressed, relates to the operation of s.424A of the Act and the recent decisions in SAAP v Minister for Immigration and SZEEU v Minister for Immigration [2006] FCAFC 2. The Tribunal wrote to the applicant indicating that it considered the material in relation to his review application, but had been able to make a decision in his favour on that information alone. At that time the Tribunal extended an invitation to the applicant to submit any new documents or written arguments that he wanted the Tribunal to consider in respect of the review. This invitation was included in the letter inviting the applicant to attend a Tribunal hearing on 13 October 2003. Shortly after that date, a bundle of documents prepared by the applicant’s agent, O’Donoghue and Associates, was forwarded to the Tribunal. A copy of the document index indicates that all of the material that had been previously submitted to the Department with the original visa application was resubmitted to the Tribunal. In addition, there was a typed transcript of the interview between the Minister’s delegate and the applicant. The effect of this is that every document considered by the delegate was now placed before the Tribunal.

11. After the Tribunal hearing on 3 October 2003, the Tribunal wrote a detailed letter to the applicant and his agent seeking further information on issues that arose during the hearing. The Tribunal sought a response to the questions raised in that letter by 13 November 2003, which was prior to the scheduled decision in this matter. The Court Book reveals a number of individual responses from both the applicant and the applicant’s agent in response to that letter. It is clear that the applicant was provided an opportunity to respond to a number of issues that arose during the hearing prior to the Tribunal making its decision. The provisions of s.424A of the Act have been complied with as articulated in SAAP v Minister for Immigration and SZEEU v Minister for Immigration.

Conclusion

1. The applicant in these proceedings is a self-represented litigant which places an obligation on this Court to independently consider whether any argument based on the material could have been made out: Yo Han Chung v University of Sydney & Ors [2002] FCA 186. Mr Reilly has assisted the Court with his submissions. The applicant in these proceedings made extensive submissions, which predominantly addressed the claim that the enquiries carried out by the Tribunal with the authorities in Belarus resulted in the release to those authorities of the applicant’s identity and his purpose in Australia. The applicant has spent very little time addressing other issues relevant to his claim. The applicant has been provided with assistance under the Court’s Legal Advice Scheme, and at earlier stages in this review process was represented by an agent. Unfortunately, that has not been of great benefit to the applicant in the preparation of these proceedings before this Court.

2. To fulfil my obligations, I have reviewed the contents of the Court Book prepared by the respondents’ solicitors, in particular the decision of the Tribunal.  I am satisfied that none of the grounds pleaded in the applicant’s applications can be sustained.  Nor is it apparent that any other ground of review exists which would suggest that the Tribunal has made a jurisdictional error in its decision to reject the applicant’s application for a protection visa.  Consequently, the applicant’s claim should be dismissed.

3. I am satisfied that an order for costs should be made in this matter.  I order the applicant pay the first respondent’s costs and disbursements of and incidental to this application.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: 

Date:  29 June 2006