SZFOG v Minister for Immigration and Anor (No.2) - [2007] FMCA 40

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFOG v MINISTER FOR IMMIGRATION & ANOR (No.2)

[2007] FMCA 40

MIGRATION – Review of RRT decision − where the applicant claimed a well-founded fear on the Convention ground of political opinion − where the applicant did not believe the applicant’s story to be credible − whether the Tribunal misunderstood the applicant’s claims − whether the Tribunal considered every integer of the application − whether the Tribunal relied upon irrelevant country information.

Migration Act 1958, s.424A(3)(a)

Applicant:

SZFOG

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG194 of 2005

Judgment of:

Raphael FM

Hearing date:

17 January 2007

Date of last submission:

17 January 2007

Delivered at:

Sydney

Delivered on:

17 January 2007

REPRESENTATION

For the Applicant:

Applicant in person

Counsel for the Respondent:

Ms S Sirtes

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay the first respondent’s costs assessed in the sum of $5,000.
Costs order of 26 July 2005 vacated.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 194 of 2005

SZFOG

Applicant

And

MINISTER FOR IMMIGRATION &MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Russia. He arrived in Australia in April 2000 and applied for a protection (Class XA) visa on 11 May 2000. On 26 June 2000 a delegate of the Minister refused to grant the applicant a protection visa and on 18 July 2000 the applicant sought review of that decision from the Refugee Review Tribunal. The Tribunal held a hearing attended by the applicant and on 6 September 2002 determined to affirm the decision not to grant a protection visa. The decision was handed down on 1 October 2002.
The grounds upon which the applicant claimed that he was entitled to the protection of Australia are set out in a statement made by him and found at [CB 32]. He states in the second paragraph thereof:
“The circumstances outlined below give me a cause to believe that I can no longer maintain a normal life in Russia without constant fearing of being persecuted for the reason of my political opinion.”
The applicant goes on to explain that he was a member of a party called the Democratic Party and in 1998 his membership of that party came to the attention of the FSB. The FSB sought to recruit him as an agent to spy and report upon members of the Democratic Party which he agreed to do out of fear. However, because of his political convictions he did not provide the FSB with correct information. The FSB discovered that the information that he was supplying to them was false and he says that they then took him in and beat him up and detained him. On his release he promised to provide correct information and they gave him some time to do this. Before he was due to report again he left Russia and fled to Australia. He already had a passport which he used once he had obtained a visa.
Before the Tribunal the applicant expanded this story somewhat. He explained that the FSB had required him to provide information about a possible strike that was to occur in a clock factory that in fact was a factory for the production of parts for explosives, possibly timers. He also revealed at the Tribunal hearing certain information about his activities that had been documented by the International Society for Human Rights Samara Representative Office [CB 83]. This related to threats made against him because of his complaints that he had been improperly treated in his employment.
The Tribunal questioned the applicant in some detail about the political party that he claimed to have been associated with. It also discussed with him the FSB approaches and his failure to provide them with proper information. The Tribunal put to the applicant certain information originating from the United States State Department about the increase in political freedoms in Russia following the collapse of the Soviet Union. There was some debate between the Tribunal and the applicant about the nature of his fear.
The applicant made it clear to the Tribunal and the Tribunal so reported that he was not claiming to have a fear of the FSB because of his membership of the Democratic Party. He had a fear of the FSB because it had already dealt with him for providing incorrect information and he felt that this would reoccur.
In its findings and reasons which commence at [CB 130] the Tribunal does discuss membership of the political party in the context of the applicant’s claims. The Tribunal came to the view that the applicant’s involvement with the Democratic Party was not of any lengthy duration and was therefore only an involvement of a person at a low level. The Tribunal later used this low-level involvement to make certain findings about the likelihood of him being persecuted for membership of the party and there is a section of the Tribunal’s reasons found at [CB 133] concerning which the applicant has a major complaint. The Tribunal states:
“Moreover, while there is some information, referred to by the primary decision-maker in the decision under review, suggesting that the FSB recruits informants … as I put to the applicant, the US State Department has advised that with the exception of a few high profile critics of the military or security service, individuals have not been mistreated by the FSB for participating in those political groups that are active players in the current parliamentary system. The applicant said that he would agree with this. He said that his fear was not due to his membership of a political party. He was afraid of the FSB which had detained him for three days. However, the applicant’s evidence is that the FSB detained him for three days by reason of his activities in a political party, Democratic Russia, which at the relevant time was an active player in the parliamentary system as part of the union of right forces.”
I would tend to agree with the applicant that this finding by the Tribunal is difficult to understand given the very clear intimation noted by the Tribunal that it was only his fear of the FSB that provided the basis for a well-founded fear of persecution and that the fear of the FSB came not from his membership of the Democratic Party but from his refusal to assist them.
At first sight therefore the applicant would appear to have a reasonable argument that the Tribunal misunderstood the nature of his claims, but I think that a reading of the decision as a whole will bear out a view that the Tribunal did not misunderstand the claims at all and that the real ground upon which protection was declined was that the Tribunal did not believe that the applicant had been approached by the FSB to give the information requested and that therefore he did not give false information and that therefore he was not detained by the FSB or beaten up and so could not have a genuine fear of persecution from them. The reasons that the Tribunal gave for coming to these findings are most cogently put at [CB 135] where the Tribunal says:
“I likewise do not accept that the applicant would have been called upon to provide advice to workers that what was ostensibly a clock and watch factory was in reality a military factory producing detonators with watch mechanisms in them. The applicant does not claim that he was ever involved in organising a factory workers’ strike himself and his only involvement in such activities appears to have been through his membership of Democratic Russia where he was not one of the leaders, even in his own region.
I do not accept that the applicant was pressured by the FSB to provide information with regard to the activities of Democratic Russia in his region or with regard to what was happening at the military factory producing detonators with watch mechanisms in them. In the first place, as indicated above, even if I were to accept the applicant’s account of his activities as a member of Democratic Russia, I consider that he would have been an unlikely choice for an informer either in relation to the activities of a party or in relation to what was happening at the factory. By his own account he was not one of the leaders of the party in his region and he said he was not important enough for anything to depend upon him. He was not a worker at the factory and by his own account he knew less about what was going on there than the FSB itself did because he was not going to meetings frequently.”
The Tribunal then goes on to deal with a fear that might have arisen out of membership of the Democratic Party. As I have said and as the applicant has more forcibly put, this is an irrelevant matter, but the fact that the Tribunal comes to some findings on an irrelevant matter does not make its findings on those matters that are relevant any less valid. I am satisfied that the Tribunal was able to come to the views which it expressed as to the credibility of the applicant’s claims concerning the FSB and his activities with regard to them given by the applicant himself in the context of his application forms and his discussions with the Tribunal.
I am satisfied that the Tribunal considered all the claims made by the applicant and the possible claim made by him arising out of the letter from the International Society for Human Rights. I am unable to see the jurisdictional error that the applicant claims exists. The Tribunal did not ignore relevant material in the International Society of Human Rights letter; it considered it. In his written submissions the applicant argues that the Tribunal was incorrect in making certain findings about his knowledge of the Democratic Party. I accept that another Tribunal may have come to a different view about the applicant’s knowledge of that party and the persons involved in it from that of this particular Tribunal, but that is not in itself a jurisdictional error.
The applicant complained that the Tribunal utilised information from the United States State Department reports which he believed was irrelevant. The use of the State Department reports is permitted by s.424A(3)(a) of the Migration Act 1958 (the “Act”). The information appears to have been used to assist the Tribunal in coming to a conclusion that the applicant did not have a well-founded fear just by reason of his membership of the Democratic Party which I have already stated to have been an irrelevant conclusion in the light of the applicant’s claims, but once again I cannot see that this constitutes a jurisdictional error.
In these circumstances I am unable to provide the applicant with the relief which he seeks and I must dismiss his application which I do. I order that the applicant pay the respondent’s costs which I assess in the sum of $5,000.
I note the concession by counsel for the Minister that the order for costs which I have just made is the only order for costs relevant to these proceedings and that a previous order for costs which I had made in relation to certain proceedings that were the subject of an appeal to the Federal Court is vacated.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: