SZELM v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1747

FEDERAL COURT OF AUSTRALIA

SZELM v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 1747

SZELM and SZELN v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

NSD1435 of 2005

MADGWICK J
15 NOVEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1435 OF 2005

BETWEEN:

SZELM
FIRST APPELLANT

SZELN
SECOND APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

MADGWICK J

DATE OF ORDER:

15 NOVEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The appeal is dismissed with costs assessed in the sum of $3,000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1435 OF 2005

BETWEEN:

SZELM
FIRST APPELLANT

SZELN
SECOND APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	MADGWICK J
DATE:	15 NOVEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

MADGWICK J:

1. This is a case in which it is really impossible not to feel some sympathy for the position of the appellants.  It is an appeal from a decision of the Federal Magistrates Court on 11 August 2005 by which the Magistrates Court dismissed the appellants’ application for review of the decision of the Refugee Review Tribunal (‘Tribunal’) handed down on 21 February 2001.  The Tribunal had affirmed the decision made by the respondent Minister’s delegate to refuse to grant protection visas to the appellants. 

2. The appellants appear not to be accepted as full citizens of any country.  Their usual place of residence was Latvia and apparently they came to Australia on Latvian passports, which nevertheless indicated that such were passports given to people regarded as ‘aliens’ in Latvia.  The appellant husband had served in the army of the former Soviet Union but apparently neither he, nor the appellant wife, are Russian citizens, and their right to reside in what is now Russia is at least clouded with doubt.  They are, however, of an ethnicity common in, and have some connections with, Azerbaijan.  They are not, however,
   
   Azerbaijani citizens.  In a decision handed down on 21 February 2002, the Tribunal Member expressed the view that they could apply for citizenship in Azerbaijan and obtain it. 

3. The appellants claimed that they should be accorded refugee status because, in their former country of habitual residence, namely Latvia, they had been persecuted and discriminated against and they feared future persecution for reasons of their actual and/or perceived ethnicity and/or cultural origins. 

4. It is notorious that when the former Soviet Union occupied and administered Latvia, the heavy hand of Russianisation was applied there and when, on the collapse of the Soviet Union, Russia became independent, there was a deal of settling of scores and a process of what might be termed de-Russianisation.

5. The Tribunal Member accepted that the appellants, a husband and wife, and their now adult son, had as a family, been seriously discriminated against.  This included occasional tauntings and beatings of the son in his high school years, similar incidents towards the father of the family, and his dismissal from a job, by reason of his presumed Russian-ness or his identification as a Muslim caucasian.

6. The Tribunal Member accepted the appellants’ story of discrimination and the facts relied on as to the asserted persecution with one exception: he did not accept that a particular untoward incident described had occurred. The Tribunal Member directed himself as to the legal tests for persecution unexceptionably in the light of, and referring to, s 91R of the Migration Act1958 (Cth) and found that the past discrimination, and any likely future discrimination, would not be sufficiently serious so as to constitute persecution.

7. I cannot see any sufficiently clear indicator that the Tribunal Member did not contemplate that serious psychological harm or really serious harm of other kinds, for example, discrimination so widespread that it would be impossible for the breadwinner or breadwinners of the family to find any work at all, would not suffice.  The family's claims did not rise as high as that. 

8. Feeling some sympathy for the position of the appellants, I have looked at the Tribunal Member's decision on the question of persecution with, I trust, some care.  I am, however, unable to say that any jurisdictional error was committed by the Member.

9. The appellants principally complain of two things.  The first is that there were some ‘country’ information type documents that were not drawn to their attention and they say that this is a breach of s 424. I understand them to mean s 424A.  However, it seems clear that the latter section does not apply because the information referred to is of the generalised kind not ‘specifically about the applicant or another person’, but ‘just about a class of persons’, so as to fall within 424A(3), which excludes the application of the section to information of that kind.

10. They also complain that, although much of the hearing concerned their connections with Azerbaijan and their actual ability to obtain citizenship of that country, and the feasibility of doing so, in the end the Tribunal Member said that he was deciding the matter on the issue of persecution, but then went on to find that the appellants could take up Azerbaijani citizenship.  The Tribunal Member introduced those apparent findings by saying:

    ‘other matters: I note that having made this finding [regarding persecution] there is no necessity to consider the situation for them in respect to Azerbaijan…’ (original emphasis).

11. The Tribunal Member went on to note that the appellants were all born in Azerbaijan; that and various other matters, in the view of the Member, indicated that they had a right to enter and reside in that country. 

12. The appellants say that, among other things, the Tribunal Member's view of those matters, although apparently treated by him as irrelevant to his conclusion, could give rise to a reasonable suspicion that he was biased against them in considering their claims in relation to the issue of persecution because he disbelieved their assertions about the prospects of their getting Azerbaijani citizenship.  This is one way of viewing the inquiry into Azerbaijani citizenship made by the Tribunal Member.  Another way is that of the Federal Magistrate, whose judgment the appellants now seek to disturb.  His Honour took the view that as to the Azerbaijani matter (at [26]):

    ‘… the Tribunal applie[d] law which has been overruled by the High Court.  However, I accept submissions by counsel for the Minister that the Tribunal presented this section of its reasons as subordinate and alternative grounds for affirming the delegate's decision.  I consider that its decision is not vitiated jurisdictionally by any error of fact or law which might appear in this part of its reasons.’

13. I am afraid I must agree. 

14. The respondent Minister urged before the Federal Magistrates Court, and again here, that because Wilcox J had in 2002 dismissed an application for judicial review in respect of the subject decision of the Tribunal Member, which was made after a long delay, the instant proceedings were at least an abuse of process, if not also an instance of Anshun estoppel.  The learned Magistrate dealt with this matter carefully and in terms that seem to me to be attractive.  His Honour found it unnecessary to determine whether the principles of Anshun estoppel or of abuse of process should be applied, preferring to rest his judgment on the proposition that the Tribunal Member had made no jurisdictional error in dealing with the matter of persecution and, on that basis alone, it was impossible to say that there was any operative error of fact or law which could mean that the Tribunal Member had erred in a jurisdictional sense.  I would also approach the matter in that way.  In short I think the learned Magistrate was right for the reasons which he gave.  There has been nothing new put before me.  Nor did I grant leave to appellants to raise new grounds of appeal.

15. It follows that the appeal must be dismissed with costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             2 December 2005

Solicitor for the Appellants:	The appellants appeared in person
Counsel for the Respondents:	Mr T Reilly
Solicitor for the Respondents:	Sparke Helmore
Date of Hearing:	15 November 2005
Date of Judgment:	15 November 2005