SZEXE v Minister for Immigration - [2005] FMCA 1227

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEXE v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1227

MIGRATION – RRT – Ukrainian of Russian ethnicity – claimed persecution by nationalists – disbelieved by Tribunal – no error found.

Migration Act 1958 (Cth), ss.474(1), 477(1A), 483A, Part 8
Judiciary Act 1903 (Cth), s.39B

Minister for Immigration & Multicultural Affairs v Prathapan (1998) 86 FCR 95
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
SZDLR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 773
SZDZV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 416

Applicant:

SZEXE

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2181 of 2004

Judgment of:

Smith FM

Hearing date:

18 August 2005

Delivered at:

Sydney

Delivered on:

18 August 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Ms T Wong

Solicitors for the Respondent:

Clayton Utz

ORDERS

The Tribunal be joined as second respondent, and note that it has filed a submitting appearance.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2181 of 2004

SZEXE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.483A of the Migration Act 1958 (Cth) which challenges a decision of the Refugee Review Tribunal dated 28 November 2000 and handed down on 19 December 2000. The Tribunal affirmed a decision of the delegate made on 22 April 1999 which refused to grant a protection visa to the applicant.
The applicant’s application was filed in this Court on 14 July 2004. I am informed by the Minister’s counsel, that in the period since the Tribunal gave its decision the applicant was a represented party in the Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 proceeding in the High Court, and was so involved when the amendments to Part 8 of the Migration Act inserting the privative clause decision came into effect. By reason of the transitional provisions in the amending Act, the applicant’s present proceeding is, therefore, not subject to the special limitations found in s.474(1) and s.477(1A) (see SZDZV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 416 at [12], and SZDLR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 773 at [33]).
The applicant does, however, need to establish a ground of judicial review affecting the Tribunal’s decision which supports the giving of relief under s.39B of the Judiciary Act 1903 (Cth). The Court is given power to issue such remedies by s.483A of the Migration Act 1958 (Cth). This requires, in the case of a writ of mandamus which the applicant seeks, that he must establish an actual or constructive failure by the Tribunal to exercise its jurisdiction to review the decision of the delegate.
The applicant arrived in Australia on a three-month business visa in 15 January 1999, and applied for a protection visa on 6 April 1999. In his visa application he indicated that was a national of Ukraine, of Russian ethnicity. He said that he had lived in a town in western Ukraine where anti-Russian public mood was “always strong”. He indicated that both communists and ultra-nationalists in power in the Ukraine had “the main goal” to “oust Russians from the Ukraine”. He continued:
Due to this idea Ukrainian authorities control and restrict social activities of Russians. They close Russian Orthodox churches, schools, newspapers, publishing houses. Radio broadcasting and TV transmission from Moscow were cancelled. They almost forcibly impose Ukrainian values upon Russians.
The applicant said that he had been an organiser of a Russian cultural society in his town and had, as a result of his activities, received threatening letters. These included death threats, and the “degree of violence towards me escalated”. He said: “usually a few grim men followed me everywhere.” Complaints to the police were ineffective. He said:
I was severely beaten up several times. I was afraid for the safety of my wife and son. I applied to the Police once more but they mocked at me saying they did not know such an organisation.
Once, it was 13 December 1998 I went shopping. It was a cold winter day. The street which I usually walked, was deserted. I did not realize what happened. When I recovered consciousness I was tied up to a tree in a forest. Several men surrounded me; I cannot remember how many of them there were. They branded me an agent of Moscow who conspired against Ukraine. They tortured me demanding from me, “Russian scum”, to respect the Great Ukraine. They said that no punishment would be enough for me. They demanded that I left “their” country otherwise threatening to kill my family and me. It was not a joke it was a reality. I had but the only one option: to flee from Ukraine. Now I am seeking asylum in Australia.
The applicant identified the people who he thought would harm him if he went back as “the organisation … Free Ukraine - the organisation of militant Ukrainian nationalists”. He also suggested that he had been singled out among other members of his Cultural Society by reason of his mother having received a high civilian decoration from the USSR.
The delegate refused the application on 22 April 1999. In his statement of reasons, he referred to the situation of the Russian population in the Ukraine, which constituted 22 per cent of the total population, with 30 per cent of the population being Russian speaking. The delegate also thought that the applicant’s claims were in themselves unconvincing and implausible.
The applicant applied for review by the Tribunal on 12 May 1999. He later lodged a statement which argued that the delegate had overlooked that he had encountered problems in the western Ukraine which historically was a region always hostile to Russians. He gave more details about his activities in the Russian Cultural Society, and more detail about the incident in December 1989. This included information that he had found himself in hospital, and that after reporting to the police:
They shouted at me demanding that I would have informed them about my accomplices. At first I did not realise what the fuss was about. I told them about our Society but it was not the point, which interested them. They imagined that I was a member of a criminal gang and demanded the confession. It was unreal!
I said that I was tortured due to political and national issues but they laughed at me. Anyway, they kept me in detention for thirty days as a suspect criminal. During this time I experienced horrible things.
The applicant attended a hearing by the Tribunal on 9 August 2000. The transcript of the hearing is not in evidence, but the Tribunal gives a lengthy description which I have no reason not to accept. The Tribunal refers to its questioning of the applicant about the identity of the persons who had harassed him. Ultimately the applicant said that he could not say who was behind the organisation, and that he could only identify the organisation from the name ‘Free Ukraine” on the letterhead of the letters he received.
The Tribunal asked more details about the incident on 13 December 1998, and then:
I referred to the fact that in the statement he had submitted to the Tribunal the Applicant had said that when he had gone to the police to report the attack on him they had kept him in detention for 30 days as a suspect criminal. The Applicant said that this was correct. I put to him that I had a little difficulty in reconciling this with his evidence that he had gone to stay with a distant relative. The Applicant said that they had kept him at the police station after he had been released from hospital. I put to him that he had said that he had been attacked on 13 December 1998. He had come to Australia on 15 January 1999. He had said that he had spent three days in hospital after the attack and in his statement he had said that he had been detained for 30 days in the police station. The Applicant said that this was a mistake. It should have said three days. I put to him that earlier in the hearing he had confirmed that 30 days was correct. The Applicant said that he had not quite heard.
The Tribunal says that it put to the applicant information which it had found in a US State Department report issued in 1997 concerning the Ukraine, and in particular, the situation of Russians. I am satisfied that the Tribunal put to the applicant the aspects of this information which it subsequently relied upon.
The Tribunal also questioned the applicant about relocation within Ukraine. He indicated that he had not tried living in central or eastern Ukraine because he had the opportunity to come to Australia.
Under the heading “findings and reasons for decision”, the Tribunal gave what in my view were three separate reasons for affirming the delegate’s decision. The first was a firm opinion concerning the applicant’s credibility:
Having regard to the impression I formed of the Applicant giving evidence before me I do not consider that he can be accepted as a witness of truth. I do not accept that he formed a Russian Cultural Society in his home town, (name), nor that he received threatening letters from an organisation called “Free Ukraine”. I do not accept that he was singled out because his mother was (decorated). I likewise do not accept that on 13 December 1998 he was abducted and taken to the forest where he was beaten by men who told him that he should ‘respect the Great Ukraine’, nor that he was hospitalised for three days as a result of his injuries nor that when he went to report this attack to the police he was detained for three days or 30 days as a suspect criminal.
The Tribunal’s discussion leading to that conclusion referred to its opinion that:
He was evasive when I pressed him for further details of the organisation which he claimed had threatened him, ‘Free Ukraine’, and again when I asked him why he considered that he could not go to central or eastern Ukraine.
The Tribunal also referred to his contradictory evidence during which he retreated from the claim that he had been kept in detention for 30 days by police.
The applicant’s application and a written outline of submissions filed in the Court challenged the Tribunal’s reasoning in relation to this credibility finding. In effect, he argued that it was wrong of the Tribunal to have drawn adverse conclusions from his lack of knowledge about the organisation which had harassed him. He also attacked the Tribunal’s reliance on his inconsistent evidence about detention. His written submission said:
The second issue of discontent is the duration of Applicant’s detention. In this case a disappointing misunderstanding happened. The actual period of detention of the applicant was confused with the stipulated by law preventive 30-day detention for people reasonably suspected in the involvement with organised crime. The Tribunal failed to rectify this conclusion.
The applicant has not sought to explain this contention to me in his oral submissions today, but I note that he does not contend that he gave this explanation to the Tribunal during the hearing. There is certainly no evidence before me that he did. The Tribunal, therefore, cannot be criticised for its reasoning in relation to the issue of detention.
In relation to the points made by the Tribunal concerning his evidence on the identity of his persecutors, I consider that the Tribunal was concerned more about the manner of the applicant’s responses to its questions than his ultimate response. I can find no error of law affecting the Tribunal’s conclusions concerning the credibility of the applicant’s claims, and consider that its first ground for affirming the delegate’s decision was unflawed as a matter of law.
I can, therefore, deal briefly with the other two reasons given by the Tribunal. They were:
Even if I were to accept that the applicant faced problems in western Ukraine, I would consider that it would be reasonable to expect the applicant to relocate to central or eastern Ukraine.
The Tribunal referred to country information upon which it draws for that conclusion. The applicant criticised its reliance upon the US State Department as a source of information, rather than Russian newspapers cited by him. However, I consider that his criticisms attempt no more than to challenge the factual assessments of the Tribunal. I can find no error of law affecting how it performed its assessment on the issue of relocation.
The third reason given by the Tribunal for affirming the delegate’s decision was:
Even if I were to accept that the applicant faced a threat of being persecuted by Ukrainian nationalists by reason of his Russian ethnicity or his religion, therefore, I would consider that, if the applicant were to return to Ukraine now or in the reasonably foreseeable future, the Ukrainian government would provide him with the same level of protection as any other Ukrainian citizen and with a level of protection sufficient to remove a real chance of his being persecuted by reason of his religion or his ethnicity.
The Tribunal drew its test of effective protection from a judgment of Lindgren J in Minister for Immigration & Multicultural Affairs v Prathapan (1998) 86 FCR 95. I believe that the test adopted is not inconsistent with later statements concerning this issue from the High Court. But in any event, the Tribunal’s reasoning in this part of its decision was not determinative of the outcome.
The applicant today declined to make any submissions whatsoever, but I have above addressed the points which I have found in the documents he filed in the Court. As I have indicated, I have been unable to find grounds upon which the Court could give relief by way of a writ of mandamus to require the Tribunal to reconsider the matter.
I must, therefore, dismiss the application.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 31 August 2005