SZKUZ v Minister for Immigration

[2007] FMCA 1888

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKUZ v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1888

MIGRATION – Russian photographer claiming persecution for political opinion – disbelieved by Tribunal – no jurisdictional error found.

Migration Act 1958 (Cth), s.424A

Minister for Immigration & Multicultural & Indigenous Affairs vSGLB (2004) 207 ALR 12
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
SZESF v Minister for Immigration & Multicultural Affairs [2007] FCA 6

WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225

Applicant: SZKUZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1996 of 2007

Judgment of: Smith FM

Hearing date: 5 November 2007

Delivered at: Sydney

Delivered on: 5 November 2007

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the First Respondent: Mr G Kennett

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1996 of 2007

SZKUZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant came to Australia in July 2000, and applied for a protection visa on the ground that he feared persecution by the government of the country of his nationality, Russia. He said that he was a photographer by profession, and that in 1999 his son was conscripted to be sent to Chechnya. His son avoided being called up and was threatened, so that “the life for the whole family became unbearable”. He claimed that he himself became politically active, and joined protests against the war in Chechnya.

2. He claimed that in February 2000 and subsequent months he participated in a series of demonstrations against the war. He also took photographs which were used by the anti-war movement, and he also assisted in other ways, in particular at an organisation known as the Moscow Public Library. After a demonstration in February, he was assaulted in the street by two young people who abused him verbally and then physically. He was admitted to a hospital, where he was treated for three weeks. He presented a document which purported to be a certified extract from a hospital record corroborating that incident. He also presented corroborative documents from the Prosecutor’s Office, to corroborate his claims that his complaints were ignored and that he was threatened by police for participating in anti-war activities. He was pursued when he was staying away from Moscow by young men, whom he identified as fascist youths used in support of the government. By May 2000 he had received refusals to investigate the assault, and he decided to leave Russia “because I thought it was the only way to save my life”.

3. The application for a protection visa was refused by a delegate on 19 September 2000, and this decision was affirmed by the Refugee Review Tribunal in a decision handed down on 5 June 2007. An earlier decision of the Tribunal handed down on 18 February 2003 was set aside by order of Stone J, who found breaches of s.424A (see SZESF v Minister for Immigration & Multicultural Affairs [2007] FCA 6).

4. In the decision which I am currently reviewing, the Tribunal reviewed the evidence given by the applicant at two hearings. Its statement of reasons shows, in my opinion, that it considered all of the documentary material forwarded by the applicant to the Department and to the Tribunal. I am certainly not persuaded that it was unaware of, and did not consider, any piece of corroborative evidence presented by the applicant.

5. This included a number of photographs which are poorly reproduced in the Court Book. I have no reason to disbelieve the Tribunal's description of this material, and the evidence about it given by the applicant at the hearings he attended. It included nine photographs which the Tribunal understood the applicant to have eventually agreed were taken of one demonstration occurring in May 2000. The applicant appears in six of these, holding a placard with other people doing similarly. The photographs also show television cameramen at the demonstration.

6. Some other photographs and brochures showing demonstrators were also presented to the Department and Tribunal. However, the Tribunal noted that the applicant did not appear in any of these photographs, in particular photographs showing demonstrations occurring at other times of the year. The applicant has not challenged this, but has claimed that he took some of those photographs.

7. In its statement of reasons, under the heading “Findings and Reasons”, the Tribunal accepted that the applicant had developed a philosophical objection to Russia's role in Chechnya, as had a large number of Russians. However, it thought that the applicant had given misleading evidence about the photographic evidence. It said:

   The applicant was misleading in his evidence to the previously-constituted Tribunal, during the earlier Tribunal hearing, when he tried to argue that the photographs he presented depicted him at different demonstrations in 2000.  The Tribunal finds that he was misleading on the basis of what he eventually confirmed at the hearing: that all nine photographs of him protesting against the Russian military action in Chechnya were taken on the same day in May 2000.  With the applicant having asserted that, there is no reliable evidence to support his claims about having attended any more than one rally against the war in Chechnya, let alone in any significant capacity.  That rally, he said, was in May 2000.  The photographs suggest it was a small rally.

8. The Tribunal then said:

   One of the main problems in this case is that the Applicant claimed that he made conspicuous, individual contributions to the anti-war debate, particularly the protest(s), that attracted serious intimidation from fascists, from the government and from thugs acting on behalf of the government.  The Tribunal finds that the Applicant has not provided a convincing account as to that claimed contribution, let alone any that he would have made over a significant period.

9. The Tribunal explained how it had arrived at that conclusion. It was not persuaded that he had presented material showing that he had been more than just one member of a group of demonstrators at one demonstration. It gave reasons for that conclusion, which are not irrational and which, in my opinion, were open to it. Based upon its finding that he had not done anything significant at that demonstration, it rejected the applicant's claims to have been harassed, both physically and otherwise, and to have lacked protection by the government.

10. It said:

    Since the Tribunal gives no weight to the Applicant’s claims about why he was singled out for mistreatment, it finds it cannot rely on his accounts of the mistreatment. They have no logical basis, especially when one considers that there were others at the demonstration with whom the Applicant claimed some connection and familiarity and yet no evidence or even detailed claims from the Applicant about any of them being harassed by Russian National Unity or the authorities or by both parties working together. The lack of evidence of anyone else from the anti-war group, such as its leaders, having been significantly harmed leaves the Tribunal concluding that the kind of activity the Applicant engaged in during 2000 did not and would not attract significant harm.

    The Tribunal gives no weight to the language, complaints and threats attributed by the Applicant to persons who saw him protesting or to persons who approached him at other times. The Tribunal does not accept that the Applicant received repeated warnings not to demonstrate by police who sided with or conspired with Fascist groups. The Tribunal gives no weight to the official documents submitted in this case, or to the Applicant’s characterisation of these documents as evidence of the authorities siding with his persecutors

11. The Tribunal did not give any detailed explanations of how it weighed the documentary evidence, including the hospital record. However, I am not satisfied that it failed to address that material before arriving at its adverse conclusions. The Tribunal had earlier in its recitation of the evidence, shown that it was aware of the history claimed by the applicant of harassment and of the material he had presented in support.

12. The Tribunal then referred to other reasons for doubting the applicant's claims, including the chronology of the issuing of, and travel on, a passport. It also indicated that it addressed claims by the applicant based on general country information, in which the applicant sought to compare himself with prominent protestors in Russia who had received persecution. Its conclusion was:

    Generally, the Applicant claims he involved himself in the anti-war voice in Russia to a genuine extent within his physical, social and intellectual capacities. However, the Tribunal does not accept that the Applicant’s political activities attracted the persecution or threats of persecution described, or that his voicing of his political opinion would give rise to a real chance of persecution in the reasonably foreseeable future. Giving weight to the evidence provided by the Applicant indicating that his fellow demonstrators did not face serious harassment, noting the Applicant’s evidence that demonstrations still take place in Moscow, and giving no weight to the vague suggestion at one point that his fellow demonstrators from 2000 might all have been persecuted for all he knew, the Tribunal finds that the Applicant would be able to continue to identify himself publicly as an opponent of the war in Chechnya without facing a real chance of persecution in Russia.

13. The applicant now asks the Court to set aside the Tribunal's decision, and to order it to reconsider his refugee claims. I can only make these orders if I am satisfied that the decision was affected by jurisdictional error. I do not have authority to decide whether the applicant's refugee claims are true nor whether he should be granted a protection visa or any other permission to stay in Australia.

14. His application to the Court contained three grounds, the first of which has been elaborated in an amended application and written submission. It contends that the Tribunal failed to comply with s.424A(1)(b), which obliges a Tribunal to ensure that an applicant understands the relevance of adverse information forming part of the reasons for the Tribunal to affirm a delegate's decision, and to allow an opportunity for written comment. The applicant argues that the Tribunal's reasoning based on its analysis of the photographs, and particularly its refusal to accept that he had personally been present at more than one demonstration, was not explained to him so that he could reply to it.

15. However, in my opinion, this argument misconceives the ambit and effect of s.424A(1). An obligation only arises where the Tribunal's reasoning is based on "information", and does not arise at all if that information was information "which the applicant gave (to the Tribunal) for the purpose of the application" (see s.424A(3)(b)). In the present case, the Tribunal's reasoning about the photographs shows, in my opinion, it relying only upon the evidence given by the applicant to the Tribunal, including by his re-presentation of the photographs earlier given to the Department. I therefore do not accept that any breach of s.424A(1) has occurred.

16. I should also add that I am not persuaded on the evidence before me that the applicant did not, in fact, have a fair opportunity at the hearing to address this particular concern of the Tribunal. I am left uncertain about this, since no party has tendered transcripts of the hearings, and the Tribunal's narration of the evidence given by the applicant does not purport to be complete.

17. The argument developed by the applicant in relation to s.424A(1) in his amended application sought to illustrate the contended breach, by arguing that the Tribunal's reasoning failed to take into account the content of photographs other than the nine photographs showing the May 2000 demonstration. A contention of failure to take relevant evidence into account was more directly made in ground 2 of the original application, which argued that the Tribunal failed to take into account:

    Evidence favouring the applicant's credibility, being the evidence from some independent sources and evidence from the applicant himself.

    There is then reference to some general country information concerning the persecution of prominent opponents of the war in Chechnya, and journalists in particular, and also to “other evidence (an ID card, photographs, leaflets etc)” presented by the applicant.

18. In relation to the photographs of persons attending demonstrations at times other than in May 2000, I am not persuaded that in fact the Tribunal did not consider that material. Looking at the material reproduced in the Court Book, and listening to the applicant's submissions in relation to it, I was more persuaded that the Tribunal correctly reasoned that the applicant himself was only shown in the photographs of one demonstration. I am not persuaded that the Tribunal did not consider the other photographic material. I consider it probably referred to this material, for example, in its statement that there was “no reliable evidence" supporting his claims to have attended more than one rally.

19. Similarly, I am not persuaded that the Tribunal failed to take into account the other documentary material presented in corroboration of the applicant's claims. In the extracts I have set out above, the Tribunal's discussion, although brief, tends to suggest that it did consider what weight to give to that material. Authorities such as WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 allow a Tribunal to weigh such material against findings based on the assessment of the applicant's own credibility. I am not persuaded that the Tribunal's reasoning about this material reveals any jurisdictional error, in particular by failing to give it proper and genuine consideration.

20. The third ground in the applicant's application is that:

    The Tribunal's reasoning was so unreasonable as to lead to a reasonable apprehension that the Tribunal did not consider the applicant's evidence and claims with an "open mind".

21. It is argued that the Tribunal's conclusions, doubting whether the applicant was a photo-journalist, in fact “have no logical basis”. However, as I have found in my discussion above, I am not persuaded that the Tribunal's reasoning can be so characterised. In this case, I am not persuaded that evidence of jurisdictional error, such as is referred to by the High Court in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [9], [36]-[37], [81], [128], and [137] and in Minister for Immigration & Multicultural & Indigenous Affairs vSGLB (2004) 207 ALR 12 at [38], is revealed in the Tribunal's handling of the evidence.

22. I do not consider that its reasoning and ultimate conclusions alone might give rise to a reasonable apprehension of bias according to the test in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425. The applicant has not pointed to anything which happened at the hearing, or elsewhere in the procedures conducted by the Tribunal as reconstituted, which might give rise to such an apprehension. Ultimately, in my opinion, various points made by the applicant to me today exposed, at most, reasoning by the Tribunal on the evidence before it which might be open to some challenges on its merits, but which has not established jurisdictional error.

23. For the above reasons, I must dismiss the application.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Michael Abood

Date:  13 November 2007