SZIBD v Minister for Immigration

[2006] FMCA 1140

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIBD v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1140

MIGRATION – RRT decision – Russian applicant claimed political persecution – disbelieved by Tribunal – no misapprehension of claims – no jurisdictional error.

Migration Act 1958 (Cth), ss.424A, 424A(1), 424A(3)(a), 424A(3)(b), 476(1), 474, 474(1), 483A

SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2

Applicant: SZIBD

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 58 of 2006

Judgment of: Smith FM

Hearing date: 27 July 2006

Delivered at: Sydney

Delivered on: 27 July 2006

REPRESENTATION

Counsel for the Applicant: Applicant in Person

Counsel for the First Respondent: Ms J Bautista

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant must pay the first respondent’s costs in the sum of $3,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 58 of 2006

SZIBD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 6 January 2006 under s.476(1) of the Migration Act 1958 (Cth), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal dated

   
   

   15 November 2005 and handed down on 6 December 2005. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.

2. Under s.476(1) the Court has “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(5) of the Constitution”. However, the Court's powers are confined by s.474(1), so that I do not have power to send the case back to the Tribunal unless I am satisfied that the Tribunal's decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant's refugee claims should be believed or whether he qualifies for a protection visa.

3. The applicant arrived in Australia in November 2004, and lodged an application for a protection visa on 23 December 2004.  He was assisted by a migration agent, who also assisted him in the subsequent proceedings in the Refugee Review Tribunal.

4. A statement attached to the application explained why he sought protection in Australia against return to his country of nationality, the Russian Federation.  He said:

   From 1999 I was involved in Russian politics.  I was a supporter of the political party “Nash Dom Rossiya” (Our Home is Russia). Just before the election, supporters from “Edinaya Rossiya” (United Russia) attacked us.  I have a scar on my left hand as a reminder of this attack. 

   In 2003 I travelled to London with other members of Nash Dom Rossiya to meet with Boris Berezovsky.  I was directly involved in the 2003 elections.  Unfortunately our party had limited success in this election.

5. The applicant referred to the Edinaya Rossiya Party taking control of Russian politics after the 2003 election.  He said:

   In 2004 the Government decided to dismiss most regional Governors because most of them were elected democratically and did not support “Edinaya Rossiya”.  New elections have been planned for 2005 but already the Government has begun to destroy its opponents.

   On (location) assembly I was nominated as a candidate for the position of Governor of (region).  Immediately after the official nomination I began to receive threatening phone calls.  I called the police and implored them to investigate the matter and protect me.  The police responded by asserting “We have plenty of nominees and we are not going to waste our resources protecting or investigating every complaint.”

   On 27 July 2004 as I was driving home from work my car was blocked by a black car carrying several armed men.  I was dragged from my car at gunpoint and was told to withdraw from the elections and leave the country.  They added that unless I fled in the same manner as the oligarch Boris Berezovsky I would suffer grave consequences.  I received a blow to the head and I awoke in an ambulance.  I spent the whole night in hospital and the following day I checked myself out.

   I immediately reported the incident to police but was told that it was a private matter, which I must deal with myself.

   From that day I never travelled alone. Three weeks later my house was burned down.  I was not at my home at the time and I received a phone call from a person who told me, “Now there is nothing to keep you here, don’t you think that its time to go away?” At first I did not understand what they were referring to. However, shortly afterwards I received a call from the fire brigade notifying me that my house had been burnt down.

   I was so scared after this event that I immediately called friends and asked for assistance to leave the country. We decided that I would go to Moscow and stay there and wait for a visa.  Three weeks later I obtained a visa to travel to Australia with a tourist group. Following the fire and until my departure I sought refuge with friends in Moscow.  

6. Two translations of what were said to be medical certificates were presented, referring to head injuries sustained in January 1999 in “this domestic injury”, and a course of treatment occurring on 27 July 2004 for the same disorder.

7. A delegate refused the application on 26 July 2005.  In his reasons he referred to the absence of evidence to substantiate the claims, and also pointed to what were regarded as some inconsistencies with the contents of information found on a Departmental data base. 

8. The applicant lodged an application for review by the Tribunal on 20 August 2005 and he attended a hearing on 9 November 2005 accompanied by his agent.  Shortly before the hearing the agent presented to the Tribunal some general information “about situation in the Russian Federation with the governors and Putin's regime”, plus some “letters in support of my client”.  None of this material provided any direct corroboration of the applicant's claims. 

9. A transcript of the hearing is not in evidence before me, but the Tribunal gives a description in its reasons.  The Tribunal's description contains the following paragraphs concerning the nature of the applicant's involvement in political activities:

   I asked the applicant when he became involved in political activities. The applicant stated that he became involved in Nash Dom Rossiya in 1999. The applicant stated that Nash Dom Rossiya appeared in 1995. He stated that it is a political movement which is a counter weight to a large group called United Russia. The applicant stated that it was not formed for any particular purpose. I asked the applicant whether Nash Dom Rossiya still exists as a political party. The applicant stated that it does. The applicant stated that there are many people who are at the head of the party. He indicated that a number of groups had come together to form a coalition in 2003. The applicant named Yabloko as one of these parties. I asked the applicant what the coalition of parties is called. The applicant stated that it is called Nash Dom Rossiya.

   I asked the applicant to describe his political activities. The applicant stated that his work was exclusively in (location) region. He indicated that he was involved in political activism in sports clubs and in the sporting halls of schools. He stated that he introduced people to the party and told them what the party was doing. The applicant stated that he told people that the party was concerned with the dignity and security of citizens. The applicant indicated that he undertook this work solely on behalf of Nash Dom Rossiya. He further indicated that he had not been involved in any other political organisation.

   I asked the applicant whether Nash Dom Rossiya had participated in the 2003 Duma elections. He stated that it had done so. I asked the applicant how many seats the party won in these elections. The applicant was unable to say how many seats the party won, but stated that it achieved about 15% of the vote.

   …

   I asked the applicant when and by whom he was nominated as a candidate. The applicant stated that he was nominated at a local council meeting in (location) in 2003.  He stated that a local cell of Nash Dom Rossiya nominated him to stand as that party’s candidate for the position of governor.

   I put to the applicant that I had difficulty with the credibility of his claims as, contrary to his evidence, material before me indicates that Nash Dom Rossiya no longer exists as a party, having been officially disbanded in February 2003. I put to the applicant that the party did not participate in the 2003 Duma elections. The applicant claimed that the party still existed. He went on to assert that Russia is a big country and that the party still exists in his area.

10. The Tribunal said that it invited the applicant's agent to indicate whether there were further matters to be raised with the applicant and allowed him an opportunity to make submissions, which he did not take up. 

11. In its reasons, the Tribunal set out general country information which it located in relation to the Nash Dom Rossiya Party.  This information indicated that the political figure who had launched the party had disbanded the group in February 2001 and had “called on its members to join the Pro Kremlin (Unity) Party”.  The information indicated that the party had then not been involved in the 2003 elections.  The Tribunal also identified information about changes to Russian law in relation to the appointment of regional governors in 2004. 

12. Under the heading "Findings and Reasons", the Tribunal presented its conclusion at the commencement:

    I have concluded that the applicant's evidence lacks credibility.  In relation to this, crucial aspects of the applicant's evidence were inconsistent with country information from independent sources.

13. The Tribunal expressly disclaimed reliance for that finding upon information obtained from the DIMIA file.  It said:

    My view that the applicant's evidence lacks credibility resulted from the substantial inconsistency between the applicant's claim to have been involved in Nash Dom Rossiya and the independent evidence before me.

14. The Tribunal explained that conclusion in the following reasoning.

    In his protection visa application and during the hearing the applicant claimed that he was actively involved with Nash Dom Rossiya.  During the hearing the applicant specifically indicated that he had not been involved with any other political organisation and that he remained actively involved with Nash Dom Rossiya until he left Russia in 2005.  The applicant claimed that Nash Dom Rossiya members nominated him as the party’s candidate in proposed 2005 gubernatorial elections. He also stated that in 2003, a number of other parties had entered into a coalition with Nash Dom Rossiya. He claimed that the coalition was known as Nash Dom Rossiya. The applicant further claimed that Nash Dom Rossiya had contested the 2003 Duma elections and had achieved 15% of the vote.

    There is evidence before me indicating that Nash Dom Rossiya was officially disbanded in February 2001 and that it did not contest the 2003 Duma election. In my view, this evidence comes from credible and reliable sources and I accept that it is accurate.  When this evidence was put to the applicant, he asserted that Nash Dom Rossiya still existed and then went on to state that Russia is a big country and that the party still exists in his area. I do not find the applicant’s explanation persuasive. In my view, if Nash Dom Rossiya still existed in some areas, the independent evidence would reflect this.  Furthermore, the applicant’s assertion in this regard does not explain the inconsistency between the applicant’s assertion that Nash Dom Rossiya obtained 15% of the vote in the 2003 Duma elections and the independent evidence which indicates that the party did not participate in those elections.

    During the hearing the applicant indicated that he had not been active with any political party other than Nash Dom Rossiya.  However, this party has not existed since 2001. I therefore do not accept that the applicant has been politically active since 2001. In my view, if the applicant had been active with Nash Dom Rossiya before 2001, he would have known what happened in 2001. I therefore conclude that the applicant has never been active with Nash Dom Rossiya – or with any other political party - at all.

15. As a result of the Tribunal's adverse findings, it did not accept that the applicant had been politically active, nor that he had been harmed for that reason in the past.  It said that it was of the view that the chance that he would choose to engage in political activities in the future was remote, and that it was not satisfied that he had a well-founded fear of persecution for reason of his political opinion.

16. I have considered the evidence before me as to the procedures followed by the Tribunal and its reasoning, and am unable to identify jurisdictional error. 

17. The applicant's original application claimed in general terms that the Tribunal had failed to recognise the applicant's claim that his life would be in danger, and that it overlooked that he had been attacked and prosecuted because he was involved in the election of a governor.  However, in my opinion, it is clear that the Tribunal was aware of these claims made by the applicant, and did address them. 

18. The applicant filed an amended application which was further amended at the hearing.  It essentially has two grounds.  The first is contained in paragraphs seven and eight:

    7.  The member of the Tribunal built her refusal on condition that I did not have good knowledge of policy  of the political party “Nash Dom Russia” and as a result I couldn’t be an active member of the party.  I never claimed that I was an active member of the party; I only specified that the Party supported be for a governor’s election.

    8.  Decision or refusal to grant me a Protection Visa was wrongly based on my membership at the regional branch of the political party “Nash Dom Russia” which was not what I claimed.

19. In my opinion, these arguments do not have a proper foundation in the reasons provided by the Tribunal.  As I have indicated in the material quoted above, the applicant had claimed in his original protection visa application and in his evidence to the Tribunal to have been “involved in Russian politics” as a “supporter of the Nash Dom Rossiya Party”.  He also referred to his involvement with “other members of that party”, to being nominated by members of that party to stand as governor, and to have been involved in “political activism”.   He told the Tribunal that he had undertaken that involvement solely “on behalf of Nash Dom Rossiya without involvement in any other political organisations”.

20. I am not satisfied that it was not open to the Tribunal then to address his claims upon the basis that he had claimed to have been “actively involved with Nash Dom Rossiya”, which is the language used by the Tribunal in its reasoning.  I am not satisfied that the Tribunal's reasoning proceeded upon any misapprehension as to the claims made by the applicant, and consider that its conclusions were open to it on the evidence. 

21. The applicant sought today to explain to me further his relationship with the Nash Dom Rossiya Party.  He argued that, although he had been nominated by members of that party, his supporters were members of the business community.  However, I am not persuaded that the Tribunal was given the information that the applicant sought to give to me today.  As I have told the applicant, I am unable myself to decide these issues of fact. 

22. The second ground raised by the applicant is contained in paragraph nine of his further amended application:

    9. This mistake could have been sorted out in the Tribunal had the Member given the information to me (the applicant) to comment on, as stated in s.424A and s.424B of the Migration Act 1958.

23. In my opinion, this ground proceeds upon a misunderstanding as to the effect of s.424A. The duty under s.424A(1) to invite in writing an applicant to provide written comments on particulars of information is expressly excluded in relation to two classes of information: information not specifically about the applicant, and information that the applicant gave to the Tribunal for the purposes of the review application (see s.424A(3)(a) and (b)).

24. In the present case, the information that the Tribunal has relied upon for affirming the delegate's decision was general information concerning the Nash Dom Rossiya Party and the 2004 changes to law in relation to regional governors. The Tribunal has assessed what the applicant has told it at the hearing against that material and, in my opinion, it has not used as a reason for affirming the delegate's decision any "information" which was required to be subject to a notice under s.424A.

25. Although the Tribunal referred to the applicant claiming to have been actively involved with the Nash Dom Rossiya Party “in his protection visa application and during the hearing”, I am not satisfied that it has taken or given separate weight to information taken from the protection visa application.  The situation, in my opinion, falls within [91] of SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 as was considered by Kenny J in SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 at [35]-[36].

26. For the above reasons, I am not persuaded that any of the grounds raised by the applicant in his applications and submissions to me are established.  I am not satisfied that the Tribunal's decision was affected by jurisdictional error.  It therefore is a privative clause decision and I must dismiss the application.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Iliya Marovich-Old

Date:  16 August 2006