SZEOQ v Minister for Immigration - [2007] FMCA 1879

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEOQ & ORS v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1879

MIGRATION – RRT decision – Lithuanian with Roma ethnicity – claims of police harassment disbelieved by Tribunal – no jurisdictional error found.

Migration Act 1958 (Cth), ss.424A(1), 424A(3)(b)

Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs(2004) 214 ALR 264
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, [2003] HCA 30
SZGGT v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 435

First Applicant:

SZEOQ

Second Applicant:

SZEPG

Third Applicant:

SZEPH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 528 of 2007

Judgment of:

Smith FM

Hearing date:

2 November 2007

Delivered at:

Sydney

Delivered on:

2 November 2007

REPRESENTATION

Counsel for the Applicant:

First Applicant in person

Counsel for the First Respondent:

Ms T Wong

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application is dismissed.
The first and second applicants must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 528 of 2007

SZEOQ

First Applicant

SZEPG

Second Applicant

SZEPH

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant is a Lithuanian citizen with Roma or Gypsy ethnicity. He came to Australia in January 2003, and his wife and son followed him in February 2003. They applied for protection visas on 28 February 2003. His wife has Russian ethnicity, but the family relied upon the husband’s claims to have suffered persecution because of his own ethnicity, as the grounds for granting protection in Australia. I shall refer to him as “the applicant”.
In the statement accompanying the visa application the applicant said that he had been unable to get a “decent job” since 1984 because of his ethnicity, and “because of my ethnicity I have always been an outcast, a second‑class citizen, a potential criminal”. He referred to persecution of gypsies by police in Lithuania, and said that he was himself harassed by police on three occasions in 2002, when his apartment was searched and he was taken away for questioning. He claimed that the police followed a policy to force gypsies out of Lithuania, and that he decided to leave Lithuania as a result of his harassment.
A delegate refused the applications of the family on 16 May 2003, and that decision was affirmed by the Refugee Review Tribunal in a decision handed down on 1 February 2007. An earlier decision of the Tribunal was set aside by order of the Federal Court.
In its statement of reasons, the Tribunal considered the evidence given to it by the applicant about his work history. This included travel to the USA where he worked for three years after 1996, to England in 2000 where he worked for six months, and to Ireland in 2001 where he worked for more than a year before returning to Lithuania in July 2002. The Tribunal also assessed his evidence about the claimed police harassment of him and other members of his family in 2002.
The applicant’s agent forwarded to the Tribunal bulky material reporting on the human rights situation in Lithuania, in particular in relation to Roma people. The Tribunal made a general finding that “sometimes people of Roma ethnicity suffer serious harm in Lithuania, including abuses by police, because of their race and that there is not always protection from that harm available to them in that country”. However, the applicant’s personal circumstances differed from those of most Roma people who have been persecuted, and the Tribunal properly recognised that it had to assess his own claimed history.
The Tribunal first assessed his claims to have suffered discrimination before 2002. It accepted that he and his wife and son had “experienced discrimination”, but found that it had not been “serious harm” before his return to Lithuania in 2002. The Tribunal made a finding that the reason that the applicant travelled overseas for work was “because of the economic situation in Lithuania after that country gained independence”, and expressly rejected his claim that it was because of his ethnicity. The Tribunal was influenced in its assessment of his history prior to 2002 by the fact that he had never claimed protection in one of the countries he had worked in, but had returned to Lithuania.
The Tribunal then addressed the central claim made by the applicant, which was the police harassment in August/September 2002. It did not believe the applicant in relation to those claims, and its reasoning appears in the following paragraph:
The Tribunal does not accept as true that the applicant suffered serious harm for the reasons that he claims and left his country for the reasons he claims. The Tribunal does not accept as true that the applicant’s house was raided in August/September 2003 [sic: 2002] as he claims, or at any time, and that he was taken into custody and ill treated and police were trying to fabricate charges against him at any time because of his ethnicity/race or for any other Convention reason. It does not accept that his family was targeted by police/authorities as he claims at any time. In the Tribunal’s view it is not consistent with those claims, namely that the police were persecuting him and fabricating charges against him, that the applicant left his country without difficulty to come to Australia in January 2003; although he said that he had to pay money to an agent for his travel documents he said that he did not pay bribes. The applicant in fact claims that the police were targeting his family to leave but the evidence is not consistent with this claim either; the evidence is that for some years his wife was working in Lithuania, his son was going to school, the family lived in their own home from 1998/1999 and the applicant was traveling back and forth to and from Lithuania to work. The Tribunal does not accept as true on the evidence before it that the applicant’s brother and cousin were gaoled because they were Roma. The Tribunal does not accept that the applicant could not get work in his country because he was Roma; he himself said that things were difficult in the country after independence and the Tribunal has found that he had to travel overseas to find work because of the country’s economic situation at that time. It is also not consistent with the applicant’s claims that he was persecuted in his country that while he was in Lithuania he lived in [location] in his home, which his wife had bought, from about 1998/1999 until he left for Australia in January 2003. He told the Tribunal initially when it asked where he was living prior to coming to Australia that he was living in [location] in the family house that his wife had bought. When the Tribunal queried whether anything else had happened to him after August/September 2002 he then said that he was “in hiding” in the outskirts although he was registered at his home address. The Tribunal considers that the applicant changed his evidence so that he could explain to the Tribunal how he managed to stay in his country until January 2003 without incident when he left for Australia. The Tribunal considers that the applicant has invented the claims that he suffered and feared serious harm in his country and fears further harm there, and was in hiding in his country prior to leaving there, to assist his application for protection.
The Tribunal concluded that there was no plausible evidence before it that the applicant had suffered persecution for a Convention reason, nor that there was a real chance that he would suffer persecution for such a reason if he returned to his country.
The applicants now ask the Court to set aside the Tribunal’s decision and to order it to reconsider their refugee claims. I can only make these orders if I am satisfied that the decision was affected by jurisdictional error. I do not have authority to decide whether the refugee claims are true, nor whether the applicants should be granted protection visas or any other permission to stay in Australia.
The applicants have presented focussed arguments in an amended application, and in written submissions filed before the hearing and passed up during the hearing. The first ground which is presented is found in paragraph 6 of the amended application:
6.I wish to note that I have never claimed that I suffered any serious harm prior to 2002. My claims always were that I had immense difficulties finding a job in Lithuania after Lithuania became an independent state. That’s why I travelled overseas to be able to support my family. I do not understand why the Tribunal spent so much time trying to provide something that I have never claimed.
Assuming that this paragraph contends that the Tribunal failed to address the applicant’s true claims, I am not persuaded that this happened. It was proper for the Tribunal to assess all of the applicant’s claimed history to consider whether it revealed persecution for a Convention reason prior to the claimed events of 2002, and the Tribunal did address that with the findings to which I have referred above. I can see no jurisdictional error in this part of its reasons.
Paragraphs 7, 8 and 9 of the amended application present arguments that the Tribunal’s reasoning was so unreasonable or illogical as to show that it failed to perform its task, or failed to perform its task with an open mind. They argue:
7.The Tribunal did not accept the fact that I had been unable to find any job in Lithuania because I was Roma. The finding is illogical. The Tribunal accepted that I am Roma and accepted that I ‘experienced discrimination because I am Roma’. According to information I presented to the Tribunal the general level of unemployment in Lithuania in 2003 was 12.4 per cent. Unemployment rate among the Roma reached 60 per cent. Negative prejudices of employers created certain barriers for the Roma in applying to the jobs*.
*Regional and Local Implementation of NAP inclusion: Lithunia. Third Report.
8.If the Tribunal accepted that I am Roma, it was to accept (on the evidence before it) that I had to have difficulties finding a job in Lithuania because of my ethnicity.
9.The Tribunal did not accept that I was persecuted by the police in August/September 2002*. The only reason was ‘information’ that I left Lithuania without difficulty to come to Australia in January 2003.
*Namely the incidents occurred in August, September and October 2003 [sic] was the only serious harm I suffered and led to my decision to flee Lithuania for good.
In relation to the first argument, it is not clear to me that the applicant ever made submissions to the Tribunal relying upon the general unemployment rates of Roma people, although this material appears to have been before it. I am not persuaded that the Tribunal overlooked this material, nor that its reasoning about the applicant’s reasons for seeking work overseas were not open to it or were illogical.
A transcript of the evidence given by the applicant is not before the Court. The Tribunal’s description of the hearing includes the applicant explaining his travel overseas for work because “work was impossible in Lithuania after independence and he supported himself by bringing goods from overseas”. I am not persuaded that it was not open to the Tribunal to have understood the applicant to be referring to the economic situation in Lithuania generally facing people with his qualifications. I do not consider that the Tribunal was bound as a matter of law to have found that his ethnicity was one of the essential reasons for his inability to obtain work in Lithuania.
The applicant’s attack on the Tribunal’s reasons for not accepting that he had been persecuted by the police in August/September 2002 also, in my opinion, has failed to establish such unreasonableness or illogicality as to show jurisdictional error (cf. Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, [2003] HCA 30 at [9], [36]‑[37], [81], [128], [137], and Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [38]). In the relevant paragraph which I have extracted above, the Tribunal gave a series of reasons for its adverse view of the credibility of this claim, and I consider that they show rational thought and consideration of his claims. I am not persuaded that its conclusions were not reasonably open to it. In short, it seems that the Tribunal preferred a conclusion that the applicants came to Australia for purely economic reasons.
I do not accept that the Tribunal overlooked the applicant’s claim that the explanation why he could leave the country without trouble was that the police wanted him to leave. The Tribunal expressly addressed that contention, but found it inconsistent with the family’s history prior to 2002.
The applicant’s outline of submissions raised the added contention that the irrationality of the Tribunal’s reasons revealed actual bias or gave rise to an apprehension of bias. However, in my view there is no substance for that contention in this case (compare NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs(2004) 214 ALR 264). The applicant has not presented any evidence as to the conduct of the proceeding by the Tribunal as reconstituted, including at its hearing, to support a contention of apprehended bias. I therefore do not accept these submissions.
Paragraphs 11 to 13 of the amended application make unparticularised claims of a failure to follow procedures required by s.424A(1) of the Migration Act 1958 (Cth). The applicant’s outline of submissions identifies only one particular of information which he argues should have been put to him for written comment. This is “the fact that I left Lithuania without difficulty to come to Australia in January 2003”. However, according to the Tribunal’s description of the hearing, this information was information which he gave to it at the hearing. No obligations therefore arose as are argued (see s.424A(3)(b)).
The applicant today sought to rely on SZGGT v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 435, however, in my opinion, that authority provides no support for his arguments or for this ground.
I am therefore not persuaded that the grounds of jurisdictional error argued by the applicant have been made out. I have not for myself been able to identify any ground of jurisdictional error affecting the Tribunal’s decision. I must therefore dismiss the application.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 14 November 2007