SZFZW v Minister for Immigration

[2006] FMCA 1870

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFZW v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1870

MIGRATION – Review of decision by second differently constituted Refugee Review Tribunal – Refugee Review Tribunal rejected applicant’s claims of being a member of ‘Erk’ party in Uzbekistan – applicant complains of nervousness at earlier Refugee Review Tribunal hearing.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A(1); 474; pt.8 div.2
Federal Magistrates Court Rules 2001

Applicant: SZFZW

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG2154 of 2006

Judgment of: Emmett FM

Hearing date: 27 November 2006

Date of last submission: 27 November 2006

Delivered at: Sydney

Delivered on: 27 November 2006

REPRESENTATION

The Applicant appearing on his own behalf

Counsel for the Respondent: Ms V. McWilliam

Solicitors for the Respondent: Ms M. Palmer, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2154 of 2006

SZFZW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 18 June 2006 and handed down on 11 July 2006. 

2. The applicant was born on 28 July 1963 and claims to be from Uzbekistan.  The applicant arrived in Australia on 11 August 2004, having legally departed from Tashkent on a passport issued in his own name and a temporary business visa. 

3. On 27 August 2004, the applicant lodged an application for a protection visa (class XA) with the Department.  The relevant claims made by the applicant and the Tribunal’s consideration of those claims are accurately summarised by counsel for the first respondent in her written submissions from paragraph 3 to paragraph 11, as follows:

   “3. The applicant claimed to be a member of the ‘Erk’ party in Uzbekistan. He claimed that harassment by activists had been increasing, that he could not live any longer under this constant threat and that he feared for his life (CB 17, 59). In a statement also received by the first respondent on 27 August 2006 (CB 25), the applicant claimed that Uzbekistan is not a democratic state, that parties opposed to the president are illegal and that members of opposition parties were subjected to harassment and torture by the police and security services. The police pressured members of the opposition into leaving the country and threatened to imprison their families if they did not comply.

   4. On 9 September 2004, a delegate of the first respondent refused the application for a protection visa. On 2 March 2005, the Tribunal affirmed that decision, however, after it was found that there had been a breach of s 424A of the Migration Act 1958 (‘the Act’), following the decision of SZEEU v Minister for Immigration and Multicultural Affairs (2006) 150 FCR 214, the matter was remitted to the Tribunal, differently constituted.

   Tribunal’s Decision

   5. In its statement of reasons dated 18 June 2006, the Tribunal stated that it had considered the applicant’s evidence at the hearing and at the previous hearing before a differently constituted Tribunal (CB 65).

   6. The Tribunal noted the inconsistencies in the applicant’s oral evidence before the first Tribunal and itself, referring to the applicant’s knowledge of the Erk or Freedom party and to why the applicant came to Australia (CB 67).

   7. On the basis of those inconsistencies, the Tribunal did not accept that the applicant fled Uzbekistan because he feared being persecuted for reasons of his real of (sic) imputed political opinion (CB 67.6).

   8. The Tribunal member found that the applicant came to Australia for economic reasons. The Tribunal did not accept that the applicant was ever a member or a supporter of Erk or that he was involved in opposition political activity in Uzbekistan at all (CB 67.6).

   9. Further, the Tribunal did not accept that the applicant was ever harassed, interrogated and beaten up by the police in January 2004 because an informer told the police he was a member of Erk, nor that he subsequently received threatening telephone calls which prompted him to make arrangements to leave the country (CB 67.78).

   10. The Tribunal did not accept that the applicant was ever harassed or otherwise persecuted for reasons of his involvement in opposition political activity in Uzbekistan and did not accept that there was a real chance that the applicant would be persecuted for reasons of his real or imputed political opinion if he returns to Uzbekistan now or in the reasonably foreseeable future (CB 67.8).

   11. For those reasons, the Tribunal was not satisfied that the applicant had a well-founded fear of being persecuted for a Convention reason if he returns to Uzbekistan (CB 67.9).”

4. On 7 August 2006, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.  The applicant confirmed that he relied on a further amended application presented to the Court on 16 October 2006 and in respect of which leave was granted this afternoon to file in Court.  The applicant was unrepresented before this Court, although had the assistance of an interpreter. 

5. The grounds relied upon by the applicant in his further amended application were interpreted to the applicant and he was invited to make submissions in support of those grounds.  The applicant was unable to make any meaningful submission in support of anything in his amended application.  The applicant stated that he was very nervous when he was talking to the Tribunal and that the Tribunal had not taken into account his emotional state.  The gist of the applicant’s submissions was a disagreement with the Tribunal’s decision. 

6. In his further amended application, the applicant relied on the following ground:

   “The applicant seeks relief on the grounds that the Tribunal exceeded jurisdiction in making the decision to affirm the respondent’s decision to refuse to grant the applicant a protection visa.

   Particulars

   (A) In relation to the applicant’s claims regarding the events that took place in late 2004:

   (i) The Tribunal failed to appreciate, or to make findings, on the applicant’s claim that his detention and mistreatment while in police custody occurred at a time when the police knew that he was a member of Erk party. It summarily dismissed any of relevant claims made by the applicant based only on some inconsistent answers made by the applicant without taking into account subjective fear and state of mind of the applicant.

   (ii) The Tribunal failed to make findings on the applicant’s claim that while in detention the police made comments and otherwise conducted themselves in a way that made it clear that part of the reason for his treatment was that he was a member of Erk party and it has become known to them through some informer.”

7. The second particular complains that the Tribunal failed to make findings about the applicant’s claim that, whilst in detention, the police made it clear that his treatment was because he was a member of the Erk Party and had become known to them through an informer.  However, the complaint is misconceived in that the Tribunal rejected that claim.  That was a finding of fact that was open to the Tribunal upon an evaluation of the evidence and material before it.

8. Counsel for the first respondent submits that both particulars relate to the applicant’s disagreement with the Tribunal’s findings and conclusions and to that extent, the particulars seek merits review, which is impermissible in this Court. 

9. The Tribunal decision recites, with some particularity, the claims made by the applicant before the earlier-constituted Tribunal, both in writing and orally.  The Tribunal then recites, with some particularity, the various exchanges it had with the applicant at the hearing about his claims. The Tribunal noted that it raised with the applicant various concerns it had about the inconsistency in his evidence given to the earlier-constituted Tribunal and evidence given to this Tribunal.  The Tribunal did not accept that the applicant was ever involved in opposition political activity in Uzbekistan.  The Tribunal provided various instances of inconsistency of evidence upon which it relied in making that finding. 

10. The Tribunal concluded by stating the following:

    “Having regard to the Applicant’s evidence at the hearing before me and at the hearing before the Tribunal (differently constituted) I do not accept that he fled Uzbekistan because he feared being persecuted for reasons of his real or imputed political opinion.  I consider that he came to Australia for economic reasons.  Given the internal inconsistencies in his evidence at the two hearings, and his lack of knowledge of ‘Erk’ at the hearing before the Tribunal (differently constituted) I do not accept that he was ever a member or a supporter of ‘Erk’ or that he was involved in opposition political activity in Uzbekistan at all.  I do not accept that he was arrested, interrogated and beaten up by the police in January 2004 because an informer told the police he was a member of ‘Erk’, nor that he subsequently received threatening phone calls which prompted him to make arrangements to leave the country.  I do not accept that the Applicant was ever harassed or otherwise persecuted for reasons of his involvement in opposition political activity in Uzbekistan.  I do not accept that there is a real chance that the Applicant will be persecuted for reasons of his real or imputed political opinion if he returns to Uzbekistan now or in the reasonably foreseeable future.”

11. Those findings were open to the Tribunal on the evidence and material before it and for which it provided reasons. 

12. The applicant also relied this afternoon on a document entitled “Amended Application Applicant’s Contentions of Fact and Law”.  The document is some 18 pages and contains largely irrelevant material.  Pages 1 to 6 of the document appear to set out the general legal propertiesprinciples.  Paragraphs 15 and 17 are essentially complaints that the Tribunal did not accept the applicant’s evidence.  From paragraph 18, that being page 8, to the end of the document, there is a lot of recitation of various case law related to the issue of state protection.  However, the Tribunal, in its decision, clearly rejected the applicant’s claims, providing the reasons why he did not believe the applicant’s assertions.  It is only necessary for the Tribunal to consider the availability of state protection if the Tribunal had accepted the applicant’s claims. 

13. The applicant also submitted that he was nervous and upset before the Tribunal.  It was unclear to which Tribunal hearing he was referring, although he appeared to be referring to the earlier-constituted Tribunal hearing.  However, the Tribunal noted that the applicant complained to the earlier-constituted Tribunal that he had been stressed and scared at the previous hearing and that he had not understood the interpreter very well.  The Tribunal noted then that it listened to the tape of the earlier-constituted hearing and was satisfied that the applicant was given every attempt to answer the questions and that his evidence was not adversely affected either by nervousness or by difficulties in communication.  If the applicant was referring to the Tribunal decision that was the subject of this proceeding, then there is no evidence before this Court by way of transcript or affidavit evidence.

14. In the circumstances, the applicant’s complaints relating to nervousness or misinterpretation cannot amount to jurisdictional error. 

15. The Tribunal otherwise discharged the statutory obligations imposed upon it by inviting the applicant to attend a hearing. The inconsistencies to which the Tribunal had regard in respect of information provided by the applicant to the earlier-constituted Tribunal and evidence given to the Tribunal the subject of this proceeding, was information given by the applicant to the Tribunal for the purposes of his review. Accordingly, no obligations under s.424A(1) of the Act are enlivened.

16. The Tribunal’s decision is not affected by jurisdictional error and is a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere and the proceeding before this Court is dismissed.

17. The first respondent seeks costs fixed in an amount of $5000.  I note that the application is in accordance with the cost schedule of the Federal Magistrates Court Rules 2001 in Part 2(1)(c).  Accordingly, I order the applicant to pay the first respondent’s costs in the amount of $5000. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:  S. Tsang

Date:  18 December 2006