SZDSN v Minister for Immigration
[2005] FMCA 161
•24 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDSN v MINISTER FOR IMMIGRATION | [2005] FMCA 161 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.91X, 424A(3)(a), 474
Judiciary Act 1903 (Cth), s.39B
Federal Magistrates Court Rules 2001 (Cth), r.13.03A(d)
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1994) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
| Applicant: | SZDSN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1666 of 2004 |
| Delivered on: | 24 February 2005 |
| Delivered at: | Sydney |
| Hearing date: | 17 February 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
There was no appearance by or on behalf of the applicant.
| Counsel for the Respondent: | Mr J Smith |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1666 of 2004
| SZDSN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 14 July 2003 and handed down on 12 August 2003, affirming the decision of the delegate of the respondent (“the delegate”) made on 9 June 2000 to refuse to grant the applicant a protection visa.
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZDSN”.
The applicant, who claims to be a citizen of the Ukraine, arrived in Australia on 18 April 2000. On 19 May 2000 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 9 June 2000 the delegate refused to grant a protection visa and on
3 July 2000 the applicant applied to the Tribunal for a review of that decision.
The applicant arrived in Australia on a sports visa stating that he intended to compete in a spear fishing competition. Documents given to the Department indicate he competed in a sporting competition in Zadar in 1998 and in Italy in 1999. In his protection visa application, the applicant stated he was an ethnic Ukrainian Orthodox, born in June 1966 and was an electrician by occupation. He claimed in the early 1990’s he joined an unregistered political organisation, the Ukrainian Freedom Party, as he believed all other Ukrainian political parties inherited the Soviet past. The applicant claimed that the Party was unregistered because the authorities did not want to have real opposition in the Ukraine. He stated that, as they are an underground Party, the members have a permanent fear of being jail. The applicant also claimed the authorities had warned him that he should cease his political activities. He claimed he was detained during the presidential elections in the Ukraine, beaten in detention, and was actively campaigning against President Kuchma and his allies (Court Book pp.17-18) (“CB”).
The applicant stated he feared being persecuted for his political opinion. During the elections in 1999 he was a volunteer activist representing one of the RUKH candidates from the Kostenko faction. The applicant stated he was not a member of the RUKH but agitated and spread propaganda for the candidate. He stated he was detained on a number of occasions during the demonstrations but he could not say that he was arrested. The fact that he was detained a few times during the elections was not the reason he left Ukraine but because he was unable to express his political opinion (CB p.69).
The Tribunal’s findings and reasons
The Tribunal did not believe that either the applicant had been beaten and detained or that members of the opposition parties in the Ukraine (or people who expressed their opposition to the government) suffered from harassment, detention or discrimination for expressing their political views. The Tribunal summarised its conclusion as follows:
“I have considered whether the applicant is likely to be harmed if he returns to the Ukraine. As I have found the applicant has not been harassed or harmed for a Convention reason in the Ukraine, I am therefore not satisfied that the applicant has a well-founded fear of Convention-based persecution on his return to the Ukraine.” (CB p.77)
The Tribunal’s reasons went beyond this summary to include reference to country information regarding the treatment of political opponents of the government. In this way, the Tribunal showed that it considered the applicant’s claims as to past harm, made findings about them and then considered what may happen to the applicant in the future.
Application for review of the Tribunal’s decision
On 1 June 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903. At a directions hearing on
9 September 2004 the Court ordered by consent that the applicant file and serve an amended application giving complete particulars of each ground of review relied upon by the applicant and any evidence upon which he proposed to rely by 21 October 2004. The applicant complied with this order and filed an amended application on
19 October 2004 which contained the following ground:
“On the ground that the Tribunal fell into jurisdictional error in failing to deal with certain of my claims.
Particulars
The Tribunal had no evidence before it to determine whether I was a political activist and therefore come to wrong conclusion that I will not be subjected to persecutions if I return to Ukraine in the future.” (Errors included)
Notice of Objection to Competency
On 29 June 2004 the solicitors for the respondent filed and served a Notice of Objection to Competency in the following form:
“1.The Court has no jurisdiction to review the decision made by the Refugee Review Tribunal (“the Tribunal decision”) on 14 July 2003 as subsection 477(1A) of the Migration Act 1958 provides that an application to the Federal Magistrates Court under section 39B of the Judiciary Act 1903 and section 483A of the Migration Act 1958 must be made within 28 days of the notification of the Tribunal decision
2. The applicant has not identified any other decision that is sought to be reviewed.”
The law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.
The hearing
The matter was listed for hearing at 2.15 p.m. However, at that time, there was no appearance by the applicant and there was no advice received from or on behalf of the applicant as to his non appearance or requesting an adjournment of the hearing. Attempts were made to contact the applicant on the contact telephone number provided on the applicant’s application. When contact was made on the specified telephone number, the applicant was not known by the person who answered. The hearing commenced at 2.35 p.m. and the matter was called in the precinct of the Court, however there was no appearance by the applicant. Despite the non appearance of the applicant, I had available to me the applicant’s original application, the amended application, the Court Book and the written submissions by the respondent Counsel. Accordingly, I proceeded with the hearing generally pursuant to Rule 13.03A(d) of the Federal Magistrates Court Rules 2001 (Cth).
Respondent’s submissions
Mr J Smith of Counsel, appearing for the respondent, filed written submissions prior to the hearing which raised the following issues:
a)The Tribunal does not need to have rebutting evidence before it can reject a claim made by an applicant: Selvadurai v Minister for Immigration and Ethnic Affairs (“Selvadurai”) per Heerey J at 349. For this reason, the applicant’s only ground must fail.
b)In any event, the Tribunal did have rebutting evidence in the sense that the country information was inconsistent with the applicant’s claims. This was one of the reasons for which the Tribunal rejected the applicant’s claims. The findings made by the Tribunal were neither unfounded nor capricious. The attack on them goes only to their merits.
c)The application ought to be dismissed as incompetent
Reasons
The applicant in these proceedings appeared before the Court Registrar on 9 September 2004 at which time he signed Consent Orders agreeing to file and serve an amended application setting out the full particulars and grounds to be relied upon and any affidavit material to support the application being filed on or before 21 October 2004. The applicant was also ordered to file and serve written submissions five days prior to the hearing date. The applicant subsequently filed an amended application but did not file written submissions prior to the hearing.
At the directions hearing before the Registrar, the applicant signed and was provided with a copy of the Short Minutes of Order indicating the time and date of the final hearing together with a map identifying the location of the Courts in John Maddison Tower in respect to the Court where the directions hearing had been held. The applicant failed to appear at the final hearing and no communication was received from him indicating his inability to make an appearance.
The applicant is a self represented litigant and the Court is well aware of the problems he may face in clearly articulating the nature of his claim. The amended application filed on 19 October 2004 does not contain a clearly identifiable ground for review. In the case of the self represented litigant the Court is under an obligation to independently consider whether any arguable case can be made out on the material before it: Yo Han Chung v University of Sydney & Ors. The applicant’s failure to attend the hearing deprived himself of the opportunity to raise matters which may have assisted the Court in reviewing his application.
The decision of the Tribunal turned primarily on a credit finding and the reasons for rejecting the applicant’s claims were that he appeared to be free to travel being able to enter and leave the territory of the Ukraine using his own passport and identity. When he was exiting the country it was clearly indicated that he was acting as an instructor in a spear fishing competition and the authorities did not intervene or prevent the applicant’s free movement across the country’s borders. This situation would be inconsistent if he had been identified as being a political activist and trouble maker.
The country information that was at the disposal of the Tribunal indicated that the citizens of the Ukraine had constitutional protection in respect of political expression and there was no discrimination against citizens for expressing political views. The Tribunal accepted that the applicant may have a low political profile which did not attract the attention of the authorities. As the material that the Tribunal referred to in assessing the country information was general in nature, s.424A(3)(a) of the Act was complied with in that this material, because of its nature, was not required to be disclosed to the applicant. A fair reading of the Tribunal’s decision, and particularly CB pp.68-70, which discusses the applicant’s claims, evidence and demonstrates the Tribunal was procedurally fair to the applicant and provided him the opportunity to appear at an oral hearing and respond to Tribunal questions and submit further information if he desired.
The applicant stated that the Tribunal erroneously failed to deal with certain of his claims. The Tribunal is entitled to reject an applicant’s evidence if it finds it unconvincing. Indeed, the Tribunal does not need to have contrary evidence to reject an applicant’s claims. In Selvadurai per Heerey J at 348:
“A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out.”
Conclusion
The applicant in these proceedings has failed to identify any ground of review of the Tribunal’s decision. A fair reading of the Tribunal’s decision on its face does not disclose any errors in the decision making process. As there is no evidence of jurisdictional error, the applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 24 February 2005
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