SZDGM v Minister for Immigration - [2006] FMCA 1014

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDGM v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1014

MIGRATION – Review of RRT decision − where applicant’s children claimed asylum in separate applications − where applicant claimed persecution on basis of membership of social group, being her family − where Tribunal found no independent evidence such a group suffered persecution − whether sufficient evidence to satisfy claim − whether Tribunal’s reasoning illogical − whether harm caused to applicant on account of persecution allegedly suffered by her children enough to constitute persecution of applicant.

Migration Act 1958, s.91R

Dranichnikov v Minister for Immigration (2003) 197 ALR 389
Abebe v Commonwealth (1999) 197 CLR 510
SZATG v Minister [2004] SCA 1595

Applicant:

SZDGM

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1052 of 2004

Judgment of:

Raphael FM

Hearing date:

7 July 2006

Date of Last Submission:

7 July 2006

Delivered at:

Sydney

Delivered on:

7 July 2006

REPRESENTATION

Applicant in Person

Counsel for the Respondents:

Mr T. Reilly

Solicitors for the Respondents:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $5000 in accordance with Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1052 of 2004

SZDGM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant arrived in Australia on 17 September 2002. She had travelled from Latvia. She utilised a passport issued by the Latvian Government but she is not a Latvian citizen. She was born in the Ukraine and is an ethnic Russian. She lived in Latvia with her husband from whom she is now separated and her two children, a son and a daughter. She was a casual nurse. She owned her own apartment.
Prior to the applicant's arrival in Australia her son had arrived in this country and made his own claim for protection. The applicant arrived with her daughter who made her own claim for protection.

The applicant did not join in as part of the family unit of either her son or her daughter but made her own separate claim for protection. In her statement, which appears to be a document prepared by a firm of immigration consultants and found at [CB27] to [29], the applicant claimed to "live in constant fear of being targeted by those who targeted her children".

The letter continues:
“The applicant decided to leave Latvia because all family members were targeted because there was a possibility of her being harmed by those who had already harmed her son and her daughter.
The applicant claims that her children's activities are a bright example of honesty, patriotism, and public spirit. The applicant states that she has not been persecuted personally, however she has been living in fear of possible persecution. It should also be said that all facts happened to her children traumatised her dramatically due to fear, desperation, anxiety. The applicant's health has deteriorated (she even travelled to Turkey to undergo medical treatment).”

Apart from this statement the applicant did not provide any evidence which might have assisted the Tribunal to reach a state of satisfaction that she had a well-founded fear of persecution for a Convention reason. The applicant claims that the Convention reason is her membership of a particular social group, that social group being her family. The Tribunal did not suggest that this was not a legitimate social group.
The gravamen of the Tribunal's decision in relation to the applicant's claims is contained at [CB56]:
“Whilst the applicant did not live with either her son or her daughter, nevertheless she fears being harmed in Latvia because her son and daughter presently in Australia suffered harm in Latvia. I found no independent evidence to suggest that mothers of children who suffer harm in Latvia are persecuted or harmed. The evidence does not suggest the applicant suffered any harm in Latvia. I find the applicant did not suffer Convention related harm in Latvia.”
In Dranichnikov v Minister for Immigration (2003) 197 ALR 389 at [78] Kirby J said that an unrepresented applicant does
“…not have to pick the correct Convention "label" to describe his plight. The Tribunal acts in a generally inquisitorial way. This does not mean that a party before it can simply present the facts and leave it to the Tribunal to search out, and find, any available basis which theoretically the Act provides for relief. This Court has rejected that approach to the Tribunal's duties. The function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances.”
In Abebe v Commonwealth (1999) 197 CLR 510, Gummow and Hayne JJ said at [187]:
“The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.”
In SZATG v Minister for Immigration [2004] SCA 1595 Hely J said at [36]:
“It was for the appellant to put forward the information and materials on which he relied in support of his claims. The RRT is not in the position of a contradictor, rather, the RRT is to consider the appellant’s claims and determine if they have been made out: Abebe v Commonwealth (1999) 197 CLR 510 at 576 (Gummow and Hayne JJ). The RRT is not required to engage in ‘an uncritical acceptance of any and all allegations’ made by an applicant (Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at 451 (Beaumont J)) and it is not required to accept a claim merely because positive evidence to the contrary is absent.”
The effect of these decisions is that the responsibility for satisfying the Tribunal of a claim lies with the applicant and in the absence of evidence the Tribunal is unlikely to achieve the necessary state of satisfaction. This is what occurred.
The Tribunal, correctly in my view, then went on in its decision to consider other possible grounds upon which the applicant could claim the protection of Australia. These were mostly based upon the applicant's Russian ethnicity because, as the Tribunal indicated, the independent country information did not set out an entirely happy situation for those persons within the State. However the Tribunal noted that the applicant had not personally suffered any harm from the Latvian authorities for any reason. She owned her own apartment, she was in employment, and actually had travelled to and from the country freely recently prior to her departure. The Tribunal assessed all these matters against the country information which evidenced some discrimination against Russians within Latvia and concluded, as a matter of fact and entirely within its power, that such discrimination as might exist and as applied to the applicant did not constitute persecution as that word is understood in s.91R of the Migration Act 1958.
Before me today the applicant was represented by her son.

His application for protection had also been turned down by the same Tribunal but he produced to me a copy of a judgment of Scarlett FM which indicated that because the Tribunal had not considered the nationality of his daughter it had fallen into jurisdictional error.

The judgment commented in no way upon the decision of the Tribunal in relation to any alleged persecution purportedly suffered by the son.
The son spoke to the written submissions that had been filed in this court on 5 July. Most of those submissions related to disagreement with the Tribunal's views of the extent to which persons of Russian ethnicity were discriminated against in Latvia and attempted to show that the Tribunal's findings in this regard were illogical. The problem is that these findings were otiose because, as the applicant has made quite plain both to the Tribunal and to me, she wasn't claiming asylum on the grounds of her Russian ethnicity, she was claiming it on the grounds of her connection to the suffering of her son and her daughter.
The applicant has argued that the sufferings of a child are imposed upon the parent and to the extent that her children suffered persecution she did too. This is an understandable contention, but I think that in order to be made good the applicant would have to satisfy the Tribunal of two things. The first is that her children truly were persecuted, the second is that the nature of the harm to her feelings was serious enough in itself to constitute persecution.
The Tribunal, on the same day as it heard the applicant's claim, had decided that neither the son nor the daughter were persons deserving of the protection of Australia and this would appear to make it difficult for the applicant to satisfy the Tribunal of the first requirement. In regard to the second requirement (and these requirements must be cumulative) no evidence at all was presented other than an assertion.
I am of the view that the Tribunal did not fall into jurisdictional error when it found that the applicant had not satisfied it that she was a person to whom Australia owed protection obligations.
I dismiss this application. I order that the applicant pay the respondent's costs which I assess in the sum of $5000.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM.

Associate:

Date: