SZMQK v Minister for Immigration and Citizenship

[2009] FCA 896

FEDERAL COURT OF AUSTRALIA

SZMQK v Minister for Immigration & Citizenship [2009] FCA 896

SZMQK v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 334 of 2009

PERRAM J
6 AUGUST 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 334 of 2009

BETWEEN:

SZMQK
Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	PERRAM J
DATE OF ORDER:	6 AUGUST 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs.

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

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 334 of 2009

BETWEEN:

SZMQK
Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	PERRAM J
DATE:	6 AUGUST 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from the Federal Magistrates Court.  On 31 March 2009 that Court refused the appellant’s application for constitutional writs directed to the Refugee Review Tribunal.  The learned Federal Magistrate did so on a number of grounds which are not presently relevant. 

2. The appellant’s application for a protection visa has an extensive history.  It has been before the Tribunal on three occasions.  I am relieved of the burden of setting out the extensive history to the proceedings by the brevity of the three grounds which are now advanced in support of the appeal. 

3. The appellant, who appeared for himself, made three points.  First, he submitted that the Federal Magistrate had failed to take into account the transcript of the third hearing conducted by the Tribunal.  Making the assumption that the Federal Magistrate did not take into account the transcript of the third Tribunal hearing, it is not possible without more information to deduce therefrom the existence of an error in the approach of the Federal Magistrate. 

4. I do not say that, armed with the transcript, one might not be able to find an error in the approach of the Federal Magistrate but it is apparent that, at least without that transcript, one cannot begin to identify an error which this Court could correct.  Accordingly, I reject the first ground. 

5. The appellant’s second ground concerned a statement made by the Tribunal in its reasons.  The appellant is a citizen of the Ukraine and contends that he was a member of the Christian Democratic Party.  As part of the arguments he advanced before the Tribunal in its third hearing, he submitted that his girlfriend had received a grant of refugee status from Italy.  The appellant submitted to the Tribunal that a consideration of his girlfriend’s position by the Italian authorities provided support for his submission to the Tribunal that he should be granted refugee status in this country.  The Tribunal rejected this argument in the following terms at paragraph 52 of its reasons. 

   Finally, the Tribunal does not accept that the refugee status granted in Italy to the applicant’s former de facto partner has any bearing on the Tribunal’s consideration of the applicant’s claims.  The Tribunal has no knowledge of the basis of her claims so the basis on which a refugee status determination was made in her favour lies entirely in the realm of speculation.

6. It is with the last expression “entirely in the realm of speculation” that the appellant now takes issue.  He submits that it was not a matter which was apt to be described as being in the realm of speculation. 

7. At the hearing of the appeal the appellant tendered documents which showed the basis upon which his girlfriend had been granted refugee status by the Italian authorities.  The difficulty with that material was that it was accepted that it was not before the Tribunal.  It follows that it is impossible for me, as an appellate tribunal, to describe paragraph 52 of the reasons of the Tribunal as containing an error.  Accordingly, the second ground must be rejected.

8. The third ground relied upon by the appellant turned upon a statement made by the learned Federal Magistrate.  Part of the appellant’s case before the Tribunal had centred upon what he said were acts of persecution by the police and by the internal intelligence service (the SBU).  At the time that those acts of persecution occurred, the security apparatus of the Ukraine was in the control of former President Kuchma.  The Tribunal approached the question on a twofold basis.  The first was to analyse the reasons for the persecution; the second was to analyse whether the persecution continued to be on behalf of the State.  The Tribunal answered the first question in the negative, that is, it determined that there was no persecution for a Convention reason. 

9. The learned Federal Magistrate then dealt with an argument that the change in the presidency meant that the police and SBU were no longer instruments of that regime in the following terms:

   45In support of Ground 2, Mr Zipser submitted that the Tribunal’s finding that the change in the political environment in the Ukraine since the Applicant lodged his application for a protection visa made the Applicant’s claim of a fear of persecution for a Convention reason no longer tenable.  The Tribunal found that, even if the harm feared by the Applicant was Convention related, the regime change in the Ukraine meant that the Applicant’s fear was no longer well-founded.  In relation to that issue the Tribunal said as follows:

   “Even if the Tribunal were to accept, which it does not, that the applicant’s claimed fear of persecution was for a Convention reason at the time his protection visa application was made, the change in the political environment in Ukraine that has occurred since then makes the claim no longer tenable.  The regime of Kuchma, of which on the applicant’s account he was a political opponent, has been replaced by the pro-Western regime of Yushchenko, who has sought to make the country more democratic.  The Tribunal accepts that, as the independent country of origin information and the many media articles to which the applicant directed the Tribunal’s attention indicate, significant problems of corruption, restrictions on the press and infringement by authorities of citizens’ privacy rights continue to exist in Ukraine.  However, when the circumstances are that the persons wielding political power whom the applicant opposed are no longer in power, the Tribunal cannot see how these governance deficiencies, however significant they may be, might impact adversely on the applicant for reasons of political opinion or any other Convention ground.”

   46.Mr Zipser submitted that the Tribunal’s findings above were confined to the Applicant’s claim of a fear of President Kuchma, whereas the Applicant’s fears extended to the police and the SBU, being the secret police service.

   47.I accept the submissions of counsel for the First Respondent, Ms Francois, that the police and the SBU are the instruments of the Kuchma regime which no longer exists.

10. In this court the appellant complains that the change in the presidency does not mean that the persecution being pursued by the police and the SBU has stopped.  He submits that the police involved at the regional level:

    …are the same, and that they are still harassing people in the same way.

11. The logic of that proposition may be accepted.  However it fails to deal with the principal problem, which is the Tribunal’s presently unchallenged conclusion that the persecution which took place was not for a Convention reason.  Thus, whilst it is true that the appellant’s argument is logically capable of demonstrating that the persecution was still taking place despite the change in the regime, it does not grapple with the finding of the Tribunal that that persecution, even if it is occurring, is not occurring for a Convention reason.  Accordingly, it seems to me that the third ground must be rejected. 

12. The necessary consequence of that is that the appeal must be dismissed with costs. 

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

Associate:

Dated:       6 August 2009

Counsel for the Appellant:	-
Counsel for the Respondents:	Ms R. Francois
Solicitor for the Respondents:	Clayton Utz Lawyers

Date of Hearing:	6 August 2009
Date of Judgment:	6 August 2009