SZEUF v Minister for Immigration - [2005] FMCA 530

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEUF v MINISTER FOR IMMIGRATION

[2005] FMCA 530

MIGRATION – RRT decision – Lithuanian Jehovah’s Witness – claimed persecution by police and others – did not attend RRT hearing – no error found.

Migration Act 1958 (Cth), ss.36(3), 426A , 483A, Part 8
Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Applicant:

SZEUF

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 1802 of 2004

Judgment of:

Smith FM

Hearing date:

13 April 2005

Delivered at:

Sydney

Delivered on:

13 April 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs in the sum of $4250.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1802 of 2004

SZEUF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.483A of the Migration Act 1958 (Cth) challenging a decision of the Refugee Review Tribunal dated 8 April 2004 and handed down on 4 May 2004. The Tribunal affirmed a decision of a delegate of the Minister, which refused an application for a protection visa.
Under s.483A, the Court has “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. That jurisdiction in a matter such as the present is under s.39B of the Judiciary Act 1903 (Cth), but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, the limitations have the effect that I cannot set aside the Tribunal decision and remit the matter unless I am satisfied that the Tribunal decision was affected by jurisdictional error.

The Court does not itself have power to decide whether the applicant is a refugee and entitled to a protection visa. That is a function given to the administrative officers in the Immigration Department and to the Refugee Review Tribunal.
In the present case, the applicant arrived in Australia in September 2000 on a temporary business visa. He appears to have left the country at least once subsequently, and his passport shows that he obtained a multiple entry visa allowing him entry to the USA until 2011.
The applicant applied for a protection visa on 21 October 2003. This was refused by a delegate on 29 October 2003, on the basis that the applicant, by holding the valid USA visa, had legally enforceable rights to enter and reside temporarily in the USA and that, therefore, Australia was taken not to have protection obligations to the applicant by reason of s.36(3). The delegate, therefore, did not find it necessary to address the applicant’s substantive claims to satisfy the definition of “refugee” under the Refugee’s Convention.
Those claims had been made very briefly in a statement attached to the application, in which the applicant claimed to have been a Jehovah’s Witness and to have, “Had to work at field, propagating our belief and inviting people to come to our book study” in his country of birth and nationality, Lithuania. His statement claimed that people on the street were abusive to him and sometimes they attacked him and that:
When police would find out that we were Jehovah’s Witnesses, they would just walk away as if we were not beaten up. Sometimes, they would even cheer up and tell our attackers to teach us a lesson. We were arrested on several occasions but let go in a few hours with threats to stop preaching or to leave Lithuania.
The applicant also claimed that he had had a visit from police and was told to get out of Lithuania. He said: “I cannot stop preaching and I was scared for my life, so I left Lithuania”. In his application he also claimed: “Police has threatened me and once they beat me up very cruelly”.
No more details were given in his statement, in his application or in any other way to the delegate or to the Tribunal after he appealed to the Tribunal. In his appeal application he merely said: “It is unfair decision completely”.
A letter from the Tribunal acknowledging receipt of the application, told him that the Tribunal might invite him to attend a hearing and explained why a hearing was important: “a hearing is your opportunity to give the Tribunal evidence to support your application”. The letter also told him that he should “immediately send us any documents, information or other evidence you want the Tribunal to consider”.
By letter dated 5 March 2004, the Tribunal invited the applicant to attend a hearing on 5 April 2004. The letter was sent by registered post to the applicant’s home address shown on his application. No other address was shown on the application. It is the same address that the applicant gave as his address for service in the present proceedings. The letter told the applicant:
The Tribunal has considered the material before it in relation to your application, but is unable to make a decision in your favour on this information alone.
It told him that the purpose of a hearing would be “to give oral evidence and present arguments in support of your claims”, and that “If you do not attend the hearing and the Tribunal does not postpone the hearing, it can make a decision on your case without further notice”. It invited the applicant to “send us any new document or written argument you want the Tribunal to consider”.
According to the Tribunal, the applicant did not attend the hearing, and no other response was received from the applicant. The applicant has not disputed this in the present case. The Tribunal said:
I am satisfied the Tribunal has discharged its obligation to provide the applicant with the opportunity to give oral evidence and present argument before it, and that he has effectively declined that opportunity.
The Tribunal exercised its power under s.426A of the Act to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. I can see no jurisdictional error in the Tribunal proceeding in that manner, in the circumstances shown in the evidence before me.
In its reasons, the Tribunal addressed the substantive claims made by the applicant to have refugee status. It did not deal with the matter on the same basis that the delegate had dealt with it. There was no unfairness in the Tribunal doing this, in my view, and it was a proper exercise of its duty to review the decision. It said:
Determining whether the applicant has a well-founded fear of persecution for a Convention-related reason requires me to assess the applicant’s claims and to determine if an applicant’s claims are credible and plausible in light of the independent evidence of a particular country.
The Tribunal referred to the absence of further information given by the applicant to support his claims, and that he did not give the Tribunal the opportunity to explore them with him. It noted that there was no explanation for his delay of over two years before applying for protection, nor in relation to his business dealings or his departures and re-entry to Australia. It concluded:
Without further information from the applicant, I do not accept he is a follower of the Jehovah’s Witness faith or that he suffered any harm in Lithuania for his religion or any other Convention-related reason.
The Tribunal noted that independent evidence did not suggest that there was no police protection for Jehovah’s Witness followers, nor that the applicant, if he complained to the police, would not obtain protection from the police in Lithuania. It was not satisfied that the applicant had a well-founded fear of persecution based on his race, religion, nationality, political opinion or membership of a particular social group. I can see no error in the Tribunal reasoning in that manner.
The application filed in this Court on 8 June 2004 said only:
The applicant claims the RRT has made an error of law applying definition of “well-founded fear”.
The applicant was directed to file an amended application giving particulars of his grounds for review and such a document was filed on 29 October 2004, which stated:
The RRT has made an error of law, having misapplied definitions of “well-founded fear” and “agents of persecution”.
At the same time, he filed a 17-page document entitled, “Applicant’s Contentions of Fact and Law”. This document is on the Court file.
I consider it plain, from various references within its body, that it is a legal submission prepared for presentation in proceedings which was not the present proceeding, and in relation to a decision by a different Tribunal which, as far as I can detect, proceeded upon reasoning far different than the present Tribunal’s reason. I do not consider that any of its arguments have relevance to the present case and the applicant today has not been able to point out how it has relevance to his case.
I therefore do not consider that it requires a detailed examination by me. I do, however, specifically reject as having no substance the general proposition in the submission:
The decision of the Tribunal was affected by a series of discrete jurisdictional errors constituted by a wrong legal characterisation of “reason for persecution” in limine and thus, a failure to determine whether his fears were well-founded.
Before me today, the applicant has had no submissions to make seeking to establish jurisdictional error or otherwise.
Since I have been unable to find that the Tribunal decision is affected by jurisdictional error, I consider that I must dismiss the application.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 6 May 2005