SZIBD v Minister for Immigration and Multicultural Affairs

[2006] FCA 1643

FEDERAL COURT OF AUSTRALIA

SZIBD v Minister for Immigration and Multicultural Affairs [2006] FCA 1643

SZIBD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 1548 OF 2006

MANSFIELD J
4 DECEMBER 2006
ADELAIDE (HEARD IN SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1548 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIBD
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MANSFIELD J
DATE OF ORDER:	4 DECEMBER 2006
WHERE MADE:	ADELAIDE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay to the first respondent the costs of the appeal, fixed at $3500 including disbursements.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1548 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIBD
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MANSFIELD J
DATE:	4 DECEMBER 2006
PLACE:	ADELAIDE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

INTRODUCTION

1. Appeal from a judgment of a Federal Magistrate given on 27 July 2006:  SZIBD v Minister for Immigration and Multicultural Affairs [2006] FMCA 1140.

2. The Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal, dated 15 November 2005 and delivered on 6 December 2005.  The Tribunal affirmed a decision of a delegate of the Minister of 26 July 2005 refusing the appellant a protection visa under the Migration Act 1958 (Cth) (the Act).

3. The appellant claims in his notice of appeal that the Tribunal committed jurisdictional error, and that the Federal Magistrate failed to detect jurisdictional error on the part of the Tribunal in two respects.  The first is that the Tribunal presumed that he was persecuted because he “was (a) member of a political party” and a member of the regional branch of the political party “Nash Dom Rossiya” (Our Home Is Russia) (NDR), when he did not assert that membership.  He then claims the Federal Magistrate simply failed to address that contention.  The second is that the Tribunal failed to give him a notice required by s 424A of the Act about the mistaken belief that he was a member of the NDR, as the mistake could then have been “sorted out”. 

4. The appellant appeared in person at the hearing of the appeal.  He did not enlarge upon those contentions in any significant way.  It was apparent from his oral submissions that he had not drawn the notice of appeal himself.  It was drawn by his migration agent.  The appellant did not know what s 424A of the Act provided, or why it was referred to in the notice of appeal.  As expressed in the notice of appeal, the second point is dependent upon the first ground of appeal succeeding. 

   THE CLAIMS AND THE TRIBUNAL’S REASONS

5. To do so, it is important to identify precisely the appellant’s claims before the Tribunal, and the delegate.  They were as follows:

   “From 1999 I was involved in Russia 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 1999 us.  I have 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 meeting with Boris Berezovsky.  I was directly involved in the 2003 election.  Unfortunately our party had limited success in this election.  There have been independent reported criticising the legitimacy of these elections and widespread allegations of impropriety.

   After the 2003 elections ‘Edinaya Rossiya’ overwhelmingly seized control of Russian politics.  The majority of political parties formed coalitions to secure their survival.  One such coalition was ‘Souze Pravih Sil Rossii’ (Union of Right-Wing Power) emerged as a major opponent to the Government.

   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 Balakhinskyy Zemskoy assembly I was nominated as a candidate for the position of Governor of Nizhnenovgorod.  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 were 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 entire 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 decide 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. The Tribunal paraphrased those claims almost exactly.  It noted also that the appellant had produced two medical certificates in support of his claimed injuries from assaults in 1999 and in 2004.  I do not need to refer to those further medical certificates, which did not expressly identify the cause of the reported injuries as being the consequences of political attacks in 1999 or in 2004.  The Tribunal also noted that a letter from the appellant’s employer presented in support of his application was different from a letter from that employer to the Australian Embassy which was said to be a copy of what had been provided to the appellant.  It did not place any weight on that discrepancy.

7. After referring to the appellant’s evidence to the Tribunal, and to independent country information concerning the NDR and concerning the circumstances in which regional governors were dismissed and to be replaced in 2004, the Tribunal turned to its findings and reasons.  It concluded that the appellant’s claim to fear persecution for reasons of his political activity between 1999 and 2004 in support of the NDR was not credible because crucial aspects of his evidence were inconsistent with country information from independent sources which it regarded as credible and reliable, and which it accepted as accurate.  In particular, it said that his claims lacked credibility because of the substantial inconsistency between his claim to have been involved in the NDR and that independent evidence.

8. The general nature of those claims is set out above.  In the course of the hearing before the Tribunal the appellant told the Tribunal that he had become involved in the NDR in 1999, that it was a counter-weight to a larger group called United Russia, and that it still existed.  He said he was involved in political activism introducing people in his region to the NDR and its activities.  He said that the NDR had participated in the 2003 Duma elections and had achieved about 15 per cent of the vote.  He said that he had been nominated in 2003 by a local council meeting in his region, through a local cell of the NDR, as a candidate for the position of governor of his region before the dismissal of regional governors in 2004.

9. It is apparent from the appellant’s claims in his protection visa application and during the hearing before the Tribunal that he had been actively involved with the NDR up to the time he left Russia in 2005.  The Tribunal described him as having been politically active in that period, both prior to and subsequent to 2001.  It did not expressly attribute to him membership of the NDR or of its regional branch where he lived.

10. The Tribunal accepted independent evidence that the NDR had been officially disbanded in February 2001, that it did not contest the 2003 Duma election, and that it was not still an active political party.  That evidence directly contradicted the appellant’s evidence.  Consequently, the Tribunal regarded the appellant as having fabricated his claim to have been politically active on behalf of the NDR up to the time he left Russia in 2005, and so it rejected his claim that he had been harmed and threatened with harm for such political activity.  The Tribunal was therefore not satisfied that the appellant has a well-founded fear of persecution by reason of his political opinion, because of what he claimed had happened to him in the past, or because he faced a risk of harm by engaging in political activities in the future if he were to return to Russia.

    THE DECISION OF THE FEDERAL MAGISTRATE

11. The Federal Magistrate was not persuaded that the Tribunal had misunderstood the appellant’s claims.  His Honour noted that the Tribunal did not specifically attribute to the appellant membership of the NDR, but that his claims did support the Tribunal’s view that he was politically active on behalf of the NDR.  His Honour also noted that in 2003 the appellant claimed to have travelled to London ‘with other members’ of the NDR for a meeting.

    CONSIDERATION

12. I do not consider that the appellant has demonstrated any error in the Federal Magistrate’s analysis of the material before the Tribunal, or in the Tribunal’s attribution to the appellant of a claim to political activism on behalf of the NDR.  The Tribunal did not overstate or misunderstand those claims.  Its conclusion about the nature of those claims was open to it on the basis of the appellant’s own evidence.  It did not expressly conclude that the appellant had been a member of the NDR.

13. Consequently, the primary ground of attack on the Tribunal’s decision was properly rejected by the Federal Magistrate.

14. The Tribunal was not required to give to the applicant a notice under s 424A(1) that his claims of political activism on behalf of the NDR would be a reason, or part of the reason, for affirming the decision of the delegate and to give him the opportunity to comment upon it.  That is simply because s 424A(3)(b) provides that s 242A(1) does not apply to information which the appellant himself gave to the Tribunal for the purpose of his application to the Tribunal.  Nor was it required to give the appellant the opportunity to comment upon the independent country information which it accepted, because s 424A(3)(a) excludes from the operation of s 424A(1) such information.  As the Tribunal did not find that the appellant was a member of the NDR, it also could not have failed to comply with s 424A(1) by failing to give the appellant an opportunity to comment upon a finding it did not make, even assuming in the appellant’s favour that a conclusion of fact based upon primary findings may attract the operation of s 424A(1).

15. The appellant applied for an adjournment of the hearing of the appeal at its commencement on the ground that he had found a person who could assist him with his appeal.  Upon questioning, he said the person concerned was a lawyer but he did not know the lawyer’s name and that the lawyer needed one month’s notice to be available for a hearing.  The lawyer concerned did not provide any material to the Court to indicate that he had been retained to appear.  I was not satisfied on that information that the prospects of the appellant receiving legal representation were sufficiently strong to warrant the grant of the adjournment, particularly as the appellant had not obtained legal representation to the present time following the institution of his appeal.  I nevertheless allowed him some time after the hearing to provide further written submissions in support of the appeal, so that the lawyer concerned could file a notice of acting and support the appeal in that way.  The appellant took the opportunity of providing further written submissions.  They were under his hand, and were not apparently prepared by a lawyer.  They merely repeat the contentions which he made orally.

16. For those reasons, in my view, the appeal must be dismissed.  The appellant must pay to the first respondent the costs of the appeal.  I fix those costs at $3500 including disbursements.  That sum was suggested by counsel for the first respondent, and the appellant agreed that if this appeal was unsuccessful that sum would be a proper sum for costs and disbursements.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:        28 November 2006

Counsel for the Appellant:	The appellant appeared in person
Counsel for the First Respondent:	R White
Solicitor for the First Respondent:	Sparke Helmore
Date of Hearing:	31 October 2006
Date of Judgment:	4 December 2006