SZCVP v Minister for Immigration
[2006] FMCA 886
•19 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCVP v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 886 |
| MIGRATION – Visa – protection visa – application for review of decision of Refugee Review Tribunal affirming a decision not to grant a protection visa – applicant a citizen of Ukraine ethnicity claiming fear of persecution by criminal elements – whether the applicant is a member of a particular social group – no convention nexus – state protection – whether jurisdictional error made in respect of a finding of effective and adequate state protection against crime. PRACTICE & PROCEDURE – Delay – whether delay so significant that relief should be refused on discretionary grounds – where application filed more than 15 months after decision handed down – whether reasonable explanation for delay. PRACTICE & PROCEDURE – Submissions – further submission – where applicant filed a further submission after the hearing had concluded without leave – whether further submission should be considered. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.36, 417, 474, 477 Migration Litigation Reform Act 2005 (Cth) |
| SZARH v Minister for Immigration [2004] FMCA 615 referred to Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 197 ALR 389 referred to Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441 referred to SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 referred to Re Commonwealth Of Australia; Ex parte Marks (2000) 177 ALR 491 referred to Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied SZBBP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 167 applied SZGDD & Ors v Minister for Immigration SYG 1023 OF 2005 distinguished SZFMQ v Minister for Immigration & Multicultural & Indigenous Affairs and Applicant S1140 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 207 SZDZI & Anor v Minister for Immigration [2005] FMCA 13 referred to SZDZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 868 distinguished SZDZI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 225 distinguished SZBFQ v Minister for Immigration & Anor [2005] FMCA 197 distinguished SZELM & Anor v Minister for Immigration [2005] FMCA 1179 distinguished SZELM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1747 distinguished |
| Applicant: | SZCVP |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 544 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 22 May 2006 |
| Date of Last Submission: | 2 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 19 June 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondents: | Mr Reilly |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The Refugee Review Tribunal is joined as Second Respondent to the application.
The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,500.00 and I allow two (2) years to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 544 of 2004
| SZCVP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal made on 21st October and handed down on
12th November 2002. The Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa to the applicant.
Background
The applicant is a citizen of the Ukraine who arrived in Australia on 27th November 1999. She applied for a protection (class XA) visa on 20th November 2000. She was the manager of a hotel for police officers in Kiev for about 23 years prior to coming to Australia. She claims that if she were required to return to Kiev she would suffer mistreatment amounting to persecution at the hands of criminal elements in Ukraine because she is a single woman living alone and advanced in years.
On 31st January 2001 a delegate of the Minister refused her application.
Application to the Refugee Review Tribunal
On 7th March 2001 the applicant sought a review of that decision by the Refugee Review Tribunal. The applicant did not lodge any other documents with her application but informed the Tribunal that additional information would be presented in the near future.
The Tribunal wrote to the applicant and invited her to attend a hearing on 8th October 2002. The applicant replied to the invitation, indicating that she wished to attend and submitted four documents to the Tribunal as part of her case. They were:
a)A letter of support from Archbishop Hilarion of the Russian Orthodox Church;
b)A handwritten statement by the applicant;
c)A certificate from Dr Danh Nguyen certifying that the applicant was suffering from depression and was seeing a psychiatrist; and
d)A certificate from Dr Alexandra Vrjosseck, a consultant psychiatrist, to the effect she was treating the applicant for anxiety/depression and had prescribed medication for her.
The applicant attended the hearing and gave evidence that she felt insecure in Ukraine after her brother was murdered in 1994. She believes that the only people who could help her were her daughter and son in law, who live in Australia. She expressed fear because of her bad health and the fact that she was a woman living alone. She doubted that the police would assist her because of endemic corruption and shortage of resources.
The applicant’s daughter also gave evidence on the mother’s behalf. She told the Tribunal member that her mother would not be able to find employment if she were to return to Ukraine and would not have a home, because the unit in which she had lived belonged to the police department. She had had to give the unit up when she left Ukraine.
The tribunal’s findings and reasons
The Tribunal set out its findings and reasons over 5 pages. They are reproduced on pages 73 to 76A of the Court Book.
The Tribunal accepted that the applicant was a citizen of Ukraine, relying on the applicant’s passport. The Tribunal was satisfied that the only Convention reason open to the applicant was that of being a member of a particular social group, and then considered the definition of a particular social group. After having considered the definition, the Tribunal was not satisfied either on the evidence of the Applicant or independent research that women such as the applicant:
Advanced in years and living alone in Ukraine are cognisable as a particular social group in their own country or are targeted for mistreatment because of the fact that they are advanced in years and do not have a male or family to support and protect them.[1]
[1] See Court Book at page 74.
The Tribunal was not satisfied that the reason for the persecution feared by the applicant fell into any of the five Convention grounds – race, religion, nationality, membership of a particular social group or political opinion. The Tribunal found there was no Convention nexus upon which the applicant could base a claim.
The Tribunal considered independent country information relating to the position of single women in Ukraine and their ability to access state protection from violence and other crime. Whilst both a DFAT report and a British Home Office assessment mentioned some serious shortcomings, there was also evidence of attempts to provide better protection for women. The Tribunal was satisfied that, despite shortcomings, Ukraine did have an independent, functioning law enforcement body and criminal laws which protect all ethnic groups and members of the community.
The Tribunal set out, in paragraphs 57 to 60 of the decision, which appear on page 76 of the Court Book, a number of reasons why the applicant should succeed on compassionate grounds, but pointed out that the Tribunal’s role was limited to determining whether the applicant satisfied the criteria for the grant of a protection visa.
The Tribunal said that a consideration of the applicant’s circumstances on humanitarian grounds is a matter solely within the Minister’s discretion.
The Tribunal found that the applicant did not satisfy the criterion set out in s.36(2) of the Migration Act for a protection visa, that the applicant be a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligation obligations under the Refugees Convention as amended by the Refugees Protocol, and affirmed the delegate’s decision not to grant a protection visa.
The application for judicial review
The applicant filed an application in this court on 2nd March 2004, more than 15 months after the decision had been handed down, seeking orders setting aside the Tribunal’s decision and remitting the application to the Tribunal for determination according to law. On
19th October 2004 the applicant filed an amended application for review, claiming that the decision was invalid and setting out four sets of particulars. The applicant also referred the court to the decision of Raphael FM in SZARH v Minister for Immigration [2004] FMCA 615, where his Honour accepted that there had been a delay in commencing proceedings but did not accept that the delay had been so significant that the court should preclude review in a situation where the court was of the view that review should be granted.
The applicant claims that the Tribunal –
·Failed to ask relevant questions related to determination of status of refugee.
·Failed to determine whether the applicant had been subjected persecution because of her imputed political opinion and because of her membership of a particular social group.
·Failed to determine the ‘particular social group’ the applicant belonged to.
·Failed to consider or ask itself whether the past or future conduct could amount to persecution by reason of actual or imputed political opinion or by reason of membership of a particular social group and thereby amount to persecution for the purposes of Article 1A(2) of the Convention Relating to the status of Refugees.
In paragraph 7 of the Amended Application, the applicant claims that she had been regarded as a traitor because:
·She belonged to a family known to have anti-government views.
·She possessed classified information.
·She had relatives in Australia.
·She was seeking to live in Australia.
The applicant filed a written submission on 12th May 2006, setting out her factual claims, but also claiming that the Tribunal failed to consider the critical part of her claim, that she would be persecuted if she went back to Ukraine because she would be perceived to have money because she had lived abroad. Whilst the Tribunal noted the claim in paragraph 24 of the decision, on page 69 of the Court book, the applicant submits that she should have been regarded as belonging to a particular social group, not “aged women having no relatives in the Ukraine” but “aged, single women who had relatives overseas, who travelled overseas and who are considered as the ones who had money”.
The applicant went on to claim that the Tribunal failed to obtain its own information that would confirm that people in that situation, particularly aged and single women, are subject to extortion attacks and robberies. The applicant claims that this failure resulted in the Tribunal misunderstanding her entire case.
The applicant’s evidence
Both the applicant and her daughter gave oral evidence about the reason for the delay of over fifteen months in commencing proceedings in this court after the Tribunal had handed down its decision.
The applicant told the court that the Tribunal hearing was “a terrible experience” for her, and the decision was “a great shock” to her, as she realised that she could not stay with her daughter. Her health deteriorated and she required medical treatment. She was crying all the time. She and her daughter sought legal advice but were constantly refused.
The applicant’s daughter, who is a nurse, gave evidence that her mother suffered from depression after the decision and saw various medical practitioners nominated by the Department of Immigration and Multicultural and Indigenous Affairs[2]. The applicant also fell down some steps and suffered a fracture which required medical treatment.
[2] As it was called then
The applicant’s daughter that, to make matters worse, the Department’s Parramatta office mislaid her file for two months, around Christmas 2003/January 2004.
In cross-examination by counsel for the respondent Minister, the applicant’s daughter admitted that she had helped her mother prepare her documentation. She said that she could not have done so earlier because her main concern was for her mother’s health, and her mother’s condition was not stable for some considerable time.
They made an application to the Minister for the exercise of discretion under s.417 of the Migration Act, but this application was rejected.
The applicant’s further submission
The application was heard on 22nd May 2006. Unexpectedly, the applicant filed a further submission on 2nd June 2006. The applicant did not seek leave to file this further submission, but I have decided to consider the matters contained in it notwithstanding the fact that it was submitted without leave.
In my view, nothing turns on the matters contained in the further submission. The submission deals with three points:
a)
The applicant’s belief that counsel for the first respondent,
Mr Reilly, had submitted that the application for review had been filed out of time and that the provisions of the Migration Litigation Reform Act 2005 (Cth) therefore applied.
b)The applicant again referred the court to SZARH v Minister for Immigration (supra) in respect of discretionary refusal of relief on the ground of unwarranted delay.
c)The applicant referred the court to four other decisions of the Federal Magistrates Court:
d)SZGDD & Ors v Minister for Immigration (SYG 1023 of 2005);
e)SZDZI & Anor v Minister for Immigration [2006] FCA 225;
f)SZBFQ v Minister for Immigration & Anor [2005] FMCA 197; and
g)SZELM & Anor v Minister for Immigration & Anor [2005] FMCA 1179.
The respondent’s submission
Counsel for the respondent Minister submitted that the Tribunal did not overlook the aspects of the applicant’s claims referred to in her amended application and that there was no evidence that the applicant had ever claimed to the Tribunal that she was regarded as a traitor in the Ukraine. Overall, the applicant was seeking merits review and “unreasonably criticises the Tribunal for not addressing a case never put by the applicant and not raised in evidence before the Tribunal”.[3]
[3] Respondent’s Written Submissions, paragraph 4.
In reply to the applicant’s written submissions, the respondent submits that the claim of a particular social group of “aged single women who had relatives overseas, who travelled overseas and who are considered as the ones who had money” was never put to the Tribunal.
The Tribunal’s conclusions as to effective protection would, in any case, apply unchanged to any such claim.
Further, it is submitted that there is plainly unwarranted delay in the bringing of this action. Relief under s.75(v) of the Constitution is, like prerogative generally, discretionary (Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 197 ALR 389 at [33]; Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte applicants S134/2002 (2003) 211 CLR 441 at [90]). Delay remains a basis on which relief may be refused even if jurisdictional error is established (SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 at [80], [174] and [211]). A delay of more than a year, as in this case, should ordinarily lead to relief being refused in the exercise of the court’s discretion (Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at 495-496).
Conclusions
It appears to me that the Tribunal dealt with the applicant’s claim in a sympathetic way, which included making an eloquent and comprehensive statement about the applicant’s compassionate grounds for a visa. With respect, I agree, but the court has no power to make a finding on humanitarian grounds, any more than the Refugee Review Tribunal has. It is entirely a matter for the exercise of the Minister’s discretion. I had the opportunity of observing the applicant in court, including when she was giving evidence, and I observed that she clearly found the court appearance highly distressing. She appears to be very attached to her daughter and dependant upon her, and an unfavourable result in these proceedings would no doubt cause her further distress. I formed a favourable opinion of the applicant’s daughter, who is a nurse by profession. She seemed to be very supportive of her mother and keen to assist her to remain in Australia.
The powers of a court in conducting judicial review are limited.
The court cannot review the merits (i.e. the factual merits) of the Tribunal’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272).
The Tribunal did consider the aspects of the applicant’s claims, despite the applicant’s contentions in the amended application. They are well set out in the decision at pages 68 to 70 of the Court Book. There does not appear any reference to the applicant’s claim that she was regarded as a traitor in her home country, and without the production to the court of a transcript of the hearing there is no evidence that any claim of that nature was ever made.
The applicant’s claim that the Tribunal did not properly consider her claim to be a member of a particular social group cannot stand.
The Tribunal decision shows that it was the Tribunal who considered the question of whether the applicant could be a member of a particular social group:
Although not articulated by the Applicant in her claims, I am satisfied that the only Convention reason open to the Applicant is that of being a member of a particular social group.[4]
[4] Paragraph 46 of the Tribunal decision at page 73 of the Court Book.
It is well established that a social group cannot be constituted by victims of crime, let alone potential victims of crime, which appears to be the applicant’s claim. In any event, the nature of the particular social group claimed by the applicant in the submission was not put to the Tribunal, on the evidence before me. The Tribunal did consider the nature of state protection available in the Ukraine and found that, notwithstanding the fact that “law and order in Ukraine leaves (sic) much to be desired”[5], the police are able to provide effective protection to all citizens in Ukraine in a Convention sense. The Tribunal did, in my view, address the issue of the adequacy and effectiveness of state protection in respect of the harm feared by the applicant and, therefore, addressed the issues it was required to address in considering the applicant’s claim (see SZBBP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 167 at [15]). There is no jurisdictional error in this respect.
[5] See Court Book at page 75
Turning to the cases to which the applicant has referred the court, SZARH v Minister for Immigration (supra) is a decision of Raphael FM where his Honour held that a delay of over 7 months was not so significant that he should refuse relief in a situation where he considered that relief should be granted (at [24]). I note that the delay in the case before me was more than twice the length of the delay in SZARH. It is relevant that that the court in SZARH considered that the applicant had established grounds for relief.
The other four cases referred to in the applicant’s further submission of 2nd June appear to be “going the rounds” in a particular section of the community, as I note that they are all referred to by their file numbers and not by their media-neutral citations. Whilst endeavouring to find SZGDD & Ors (supra) in the court’s database, I noted that the same four cases had been cited to me in SZFMQ v Minister for Immigration & Multicultural & Indigenous Affairs and Applicant S1140 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 207, where the applicants were Latvian citizens of Russian ethnicity.
SZGDD & Ors can be distinguished quite simply. It does not appear on the judgments database because it was the subject of consent orders remitting the application to the Tribunal. There is no indication that the circumstances of that case are in any way similar to the circumstances of the case before me. Applicants should realise that there are many different reasons as to why parties enter into consent orders to resolve matters before courts and it is of no use at all to rely on a case resolved by consent as being persuasive of any legal principle.
SZDZI (supra) can be distinguished on its facts. In SZDZI & Anor v Minister for Immigration [2005] FMCA 13, Lloyd-Jones FM dismissed the application as an abuse of process. In SZDZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 868, upon which the applicant relies in the case before me, Allsop J granted leave to appeal against Lloyd-Jones FM’s decision. In SZDZI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 225, Allsop J allowed the appeal. In my view, the decision can be distinguished on its facts, as his Honour said at [13]:
The issue here is whether the facts disclosed here, without more, can amount to an abuse of process. In my views they do not and cannot.
Nowhere has it been claimed by the Respondents that the application before me is an abuse of process. It clearly is not.
In SZBFQ v Minister for Immigration & Anor (supra) Driver FM granted certiorari and mandamus after finding that the Refugee Review Tribunal had made a jurisdictional error in failing to consider whether the applicant faced a well-founded fear of persecution as a woman by reference to the risk of being forced into prosecution and being traffic ked as a prostitute in Azerbaijan, which was a key component of the applicant’s claims (at [28]). The applicant, however, relies on the case as showing that relief was granted in respect of an application “made on 15 August 2003 (five years after the Tribunal’s decision)”. This is incorrect. The Tribunal handed down its decision on 16th August 2001 (SZBFQ at [1]). Whilst the application was certainly made two years after the decision was handed down, the question of delay appears not to have been argued before his Honour at all. The case is distinguished on its facts.
The applicant relies on SZELM & Anor v Minister for Immigration [2005] FMCA 1179 where Smith FM dismissed a Notice of Motion for summary dismissal. This case is of no benefit to the applicant, because his Honour dismissed the substantive application for review and Madgwick J dismissed the applicants’ appeal against that decision (SZELM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1747.
Whilst it appears from reading the above decisions that all the applicants were of Russian ethnicity, there needs to be something more than that to make a decision relevant to this case, let alone persuasive as an authority.
The other matter referred to by the applicant was the submission that the respondent’s counsel was in some way suggesting that the applicant’s case was out of time because of the operation of the Migration Litigation Reform Act 2005. The submission is misconceived. The Migration Litigation Reform Act did not insert s.477 into the Migration Act; it only amended it. Section 477 in its earlier form was in force when the applicant filed her application on
2nd March 2004.
There is no jurisdictional error made out. The decision is a privative clause decision within s.474 of the Migration Act. My reading of the decision does not indicate any other error not mentioned by the applicant. Whilst I am satisfied in this case that the applicant has established a reasonable excuse for the delay in bringing this application, because of the depression and anxiety from which she appears to have suffered, this will not assist the application because there is no reviewable error and her application must be dismissed.
I am of the view that there are strong compassionate reasons why, once the judicial process has been completed, the applicant’s case should again be considered by the Minister on humanitarian grounds. That, however, is entirely a decision for the Minister.
Orders
The application will be dismissed. I will consider the question of costs.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 19 June 2006
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