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MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - applicant claiming ethnic persecution in Kazakhstan - whether the RRT failed to deal with part of the applicant's claim - observations on the question of whether the conclusion reached by the RRT was reasonably open on the material before it.

SZAYS v Minister for Immigration [2004] FMCA 797 (11 November 2004)

SZAYS v Minister for Immigration [2004] FMCA 797 (11 November 2004)
Last Updated: 26 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAYS v MINISTER FOR IMMIGRATION
[2004] FMCA 797




MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - applicant claiming ethnic persecution in Kazakhstan - whether the RRT failed to deal with part of the applicant's claim - observations on the question of whether the conclusion reached by the RRT was reasonably open on the material before it.




Migration Act 1958 (Cth), ss.36, 91R

Applicant A v Minister for Immigration (1997) 190 CLR 225

Applicant WAEE v Minister for Immigration (2003) 75 ALD 630

Chen Shi Hai v Minister for Immigration (2000) 201 CLR 293

Dranichnikov v Minister for Immigration [2001] FCA 1801, (2003) 197 ALR 389

Minister for Immigration v Yusuf (2001) 206 CLR 323

SCAL v Minister for Immigration [2003] FCA 548

SGBB v Minister for Immigration (2003) 199 ALR 364

Applicant:
SZAYS




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG1369 of 2003




Delivered on:


11 November 2004




Delivered at:


Sydney




Hearing date:


11 November 2004




Judgment of:


Driver FM




REPRESENTATION

Counsel for the Applicant:


Mr A E Maroya




Counsel for the Respondent:


Mr J D Smith




Solicitors for the Respondent:


Australian Government Solicitor




ORDERS

(1) The application is dismissed.

(2) The applicant is to pay the respondent's costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG1369 of 2003

SZAYS



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
(revised from transcript)

Introduction and background

1. This is an application to review a decision of the Refugee Review Tribunal ("the RRT") made on 19 May 2003 and handed down on 12 June 2003. The RRT affirmed a decision of a delegate the Minister not to grant the applicant a protection visa. The applicant is from Kazakhstan and made claims of persecution based upon her Russian ethnicity. The relevant background facts are sufficiently set out in written submissions prepared by Mr Smith on behalf of the Minister.

I adopt paragraphs 4, 5 and 6 of those submissions in relation to the applicant's claims for the purposes of this judgment:

The applicant is a citizen of Kazakhstan who arrived in Australia on 6 October 2001 on a visitor visa subclass 676. On 19 November 2001 she lodged an application for a protection visa on 23 May 2002 a delegate of the respondent refused to grant the applicant the protection visa. On 27 June 2002 the applicant applied to the RRT for review of that decision and gave oral evidence at a hearing held by the RRT on 8 May 2003.

In support of her application for a protection visa the applicant claimed that she feared persecution in Kazakhstan on account of ethnicity, namely, Russian. She claimed that since the creation of the Kazakhstan Republic in October 1991 the treatment of Russians in her city (Kostianai) had worsened sharply. She claimed that she had been attacked on a number of occasions in May 1993, November 1994 and April 1995. In addition, she claimed that she was demoted in September 1995 and replaced in her old position by a Kazakh being told that she was irritating the Kazakhs superiors and Kazakh population in general. Her sons were also the subject of harm on account of their ethnicity and the Police refused to assist her, and other mothers, when complaints were made about the treatment of her sons.

She claimed that, as a result of an incident involving a burst water pipe which led to the possibility of death of the 4 year old son of the Deputy Prosecutor in her city, she came to the attention of the Police and other people who beat her, detained her and threatened her in order to obtain from her documents that she had recording the events surrounding the burst water pipe. She fled her hometown in fear of her life and came to Australia looking for protection from persecution.

2. I also adopt paragraphs 7, 8 and 9 of Mr Smith's submissions in relation to the RRT's decision:

The RRT accepted that the applicant and her family had encountered verbal abuse and from time to time had been pushed and shoved in the street and that in her position in the Mayor's office the applicant had often received abuse from citizens, and, in this context was a recipient of racial slander. However, it was not satisfied that these incidents amounted to persecution in the sense they did not amount to serious harm as required by s.91R of the Migration Act 1958 (Cth) ("the Migration Act").

It also accepted that the applicant had lost her post as a Director of her unit but that this, too, did not amount to serious harm which would amount to persecution. The RRT also accepted her claim regarding the burst water pipe but found:

"The reason she was hounded by the Police was to obtain the document that she had copied which incriminated her Kazakh supervisor. I am not satisfied that her mistreatment at the time had any racial motivation on the part of the Police or anyone else."

For these reasons the RRT was not satisfied that the applicant was a person to whom Australia had protection obligations and accordingly affirmed the decision of the delegate under review.

The application and submissions

3. The applicant proceeds on the basis of an amended application filed on 15 December 2003. That application asserts that the RRT made a jurisdictional error in that it failed to make findings upon or otherwise consider a substantial claim of the applicant, being she was assaulted on several occasions both by local Kazakhs and by the police. As will appear, the more significant element of the assertion made by the applicant relates to her claimed treatment at the hands of the Kazakh police. Mr Maroya, on behalf of the applicant, has prepared clear and helpful written submissions for which I thank him. He relies first on the decision of the High Court in Dranichnikov v Minister for Immigration (2003) 197 ALR 389 at 394. That decision is authority for the proposition that the RRT commits a jurisdictional error should it fail to respond to a substantial and clearly articulated argument of the applicant.

4. Mr Maroya submits that the RRT failed properly to exercise its jurisdiction by failing to make findings upon or otherwise consider a substantial claim of the applicant (as set out in the amended application). This submission is in particular directed to the applicant's assertion that she was assaulted on several occasions by ethnic Kazakhs and by the Kazakh police operating in the city of Kostanai. Mr Maroya submits that it is apparent from the court book, in particular the applicant's claims set out on pages 11 to 14 of the court book, that the applicant had made detailed claims of persecution she and her two sons suffered at the hands of Kazakh civilians and the local police force.

5. As Mr Maroya points out, some but not all of those incidents are noted in the RRT's overview of the applicant's case, set out in the court book from pages 68 to 70. Mr Maroya submits that the RRT's findings and reasons do not include specific findings upon the applicant's claims repeatedly to have been assaulted. Instead the findings only mention that the applicant had been verbally abused from time to time, pushed and shoved in the street and that she had been hounded by the police (court book, pages 72 to 73).

6. Mr Maroya submits that the conclusion reached by the RRT that Australia owes no protection obligations to the applicant under the Refugees Convention and Protocol is vitiated by the failure of the RRT to make specific findings on the question of the applicant's abuse at the hands of the Kazakhs or otherwise address the content of the applicant's substantial claim. In support, he relies on the decisions in Minister for Immigration v Bhardwaj (2002) 209 CLR 597 at 649, paragraph 165 per Callinan J; NABE and Minister for Immigration [2004] FCAFC 263 at 60, approving a remark of Selway J in SGBB and Minister for Immigration (2003) 199 ALR 364 at 369 at paragraph 18 and also Applicant WAEE v Minister for Immigration (2003)

75 ALD 630.

7. For his part, Mr Smith, for the Minister, asserts that there is no jurisdictional error because there was no failure on the part of the RRT to consider any element or integer of the applicant's claims. He submits first that the RRT accepted the applicant's claim that she was forced to instruct engineers to turn off the water supply against her better judgment. Secondly, he submits that it is implicit in the reasoning of the presiding member that she accepted the applicant's claims regarding her mistreatment at the hands of the police and other local Kazakhs. He submits that if this were not so it would have been unnecessary for the RRT to consider at all the reason for which those events took place. Mr Smith submits that once it implicitly accepted those events it was necessary for the RRT to consider whether they had taken place for one of the Convention reasons, in this case, the applicant's ethnicity.

8. Thirdly, Mr Smith submits that the RRT's finding that these events did not occur for reasons of the applicant's ethnicity dealt effectively with the underlying factual claims. Mr Smith elaborates upon these submissions in paragraphs 11, 12 and 13 of his written submissions which I incorporate in this judgment for the purposes of the discussion of those submissions:

The Convention is not aimed at protecting all people who come, or may come, to serious harm. In Chen Shi Hai v Minister for Immigration (2000) 201 CLR 293 a majority of the High Court said at 302 [24] - [25]:

"There is a common thread linking the expressions `persecuted', `for reasons of' and `membership of a particular social group' in the convention definition of `refugee'. In a sense, that is to over simplify the position. The thread links `persecuted', `for reasons of' and the several grounds specified in the Definitions namely, `race, religion, nationality, membership of a particular social group or political party' (ART. 1A(2)).

As was pointed out in Applicant A not every form of discriminatory or persecutory behaviour is covered by the convention definition of `refugee'. It covers conduct only undertaken for reasons specified in the convention. And the question whether it is undertaken for a convention reason cannot be entirely isolated from the question whether that conduct amounts to persecution."

In Applicant A v Minister for Immigration (1997) 190 CLR 225 at 257 McHugh J said:

"When the definition of refugee is read as a whole, it is plain that it is directed to the protection of individuals who have been or who are likely to be the victims of intentional discrimination not a particular kind. The discrimination must constitute a form of persecution, and it must be discrimination that occurs because the person concerned has a particular race, religion, nationality, political opinion or membership of a political or social group."

Accordingly, where the harm feared does not have a nexus with one of the stated Convention reasons the fear of that harm does not make the person holding the fear a refugee within the meaning of the convention. For that reason, it was sufficient for the Tribunal in order to complete the task set for it by s.36(2) of the Migration Act to determine that the reason for the harm suffered by the applicant as claimed was not for one of the convention reasons.

Reasoning

9. Annexed to Mr Maroya's written submissions and handed up in court today is a copy of the applicant's visa application statement (court book, pages 11-14) which he has conveniently numbered by reference to the paragraphs in the statement. Also annexed is a table of the factual claims made by the applicant, with an indication in Mr Maroya's submission as to whether or not the particular claims were specifically referred to in the RRT's decision. For present purposes, the critical element of the applicant's claims is what is set out in the paragraph numbered 19 by Mr Maroya on the copy of the applicant's statement. The applicant stated:

A day after my arrival, on the 17th August, five uniformed policemen, all Kazakhs including the ones that tortured me earlier, kicked into my flat. My eldest son Vladimir was home. They hit him in the face and the stomach without saying a word and he lost consciousness. They then tied me up with a rope that they cut from balcony to the chair and put a cloth gag in the mouth so I wouldn't scream. They began the search, breaking whatever was at hand, throwing all contents of drawers on the floor and asking me where I hid the documents. I told one of my co-workers at work that I made a copy of the journal entries where it describes under whose pressure the water was switched back on and all the negotiations and carrying on. When my son came to, they didn't let him get up, but started kicking him on the ground and forced me to watch as they did it. They kept asking me where the documents are, not forgetting to hit me on the head and the jaw and knocked out my teeth. They flogged me with the telephone cord on my legs, arms and shoulders, kicked my legs. One of the policemen seemed to particularly enjoy stepping on my toes with the heel of his boot while watching the expression of pain on my face. They were cussing and swearing that finally it was the Kazakhs' turn to torture Russian swine, we will banish all Russian dogs from our land, we have had enough so you Russian bitch and your family will be destroyed and all will be revenged. My son lost consciousness again and I showed them where I kept the copies of the journal that contained information about the day of the emergency, knowing that I was giving away evidence of my innocence and the guilt of Abenov, head of UVD. They took all the documents from the box which I showed them and left us. Having regained consciousness, my son untied me and in the evening when the whole family gathered, we decided it was necessary to escape from the city. I rang and convinced an acquaintance to drive us out, far away from the city.

10. The table accompanying Mr Maroya's submissions notes that these claims are referred to in the RRT's reasons on pages 68-70 of the court book. A number of other claims set out in the table are not specifically referred to in the RRT's reasons. Some others are, as identified by Mr Maroya. The presiding member dealt with the applicant's claims in the following way. The findings and reasons the presiding member are brief and I quote them in full:

The applicant is an unfortunate victim of her times. She grew up and was educated in the Former Soviet Union and now finds herself in a country fast becoming more nationalistic. She has claimed persecution for reasons of her Russian ethnicity.

I accept that she and her family have encountered verbal abuse, and have from time to time been pushed and shoved in the street. I also accept that in her position in the Mayor's Office the applicant often received abuse from citizens who had reason to be discontented with the local services, and in this context was the recipient of racial slander. I am not satisfied that these incidents, unpleasant as they were, amount to persecution in the Convention sense, as they do not amount to serious harm as required by s.91R of the Act.

I accept that the applicant has lost her post as Director of her unit but note that she was promoted sideways and classified as specialist. While this would appear to be a general trend in Russian employment in Kazakhstan it too in the applicant's case did not involve the serious harm which would amount to persecution.

I accept that the applicant was forced to instruct the engineers to turn on the water supply against her better judgement, and that she was perceived as having a role in the child's drowning. She was not charged with any offence following the drowning, rather, the foreman seemed to have been blamed. The reason she was hounded by the police was to obtain the document she had copied which incriminated her Kazakh supervisor. I am not satisfied that her mistreatment at the time had any racial motivation on the part of the police or anyone else.

11. The presiding member concluded that the applicant is not a person to whom Australia owes protection obligations under the Refugees Convention and Protocol.

12. The relevant legal principle is easy to express but difficult to apply. In SGBB v Minister for Immigration[1] at [17] and [18], His Honour Selway J said, initially quoting Kirby J in Dranichnikov at paragraph 78:

[t]he function of the tribunal, as of the delegate, is to respond to the case that the applicant advances.

13. Selway J also refers to a decision of von Doussa J in SCAL v Minister for Immigration [2003] FCA 548 where His Honour said:

`[n]either the delegate nor the Tribunal is obliged to consider claims that have not been made". But this does not mean that the application is to be treated as an exercise in nineteenth century pleading. As it was put by the Full Court of this Court in Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801... at [49]:

The Tribunal must, of course, deal with the case raised by the material and evidence before it. An asylum claimant does not have to pick the correct Convention "label" to describe his or her plight, but the Tribunal can only deal with the claims actually made.

14. At paragraph 18, His Honour said:

The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it.

15. Also in Applicant WAEE and Minister for Immigration[2], at paragraphs [46] and [47], the Full Federal Court stated:

It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by the applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact[3] and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised "with an eye keenly attuned to error". Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

16. In this case, the findings and reasons by the presiding member were certainly brief. A significant explanation for that is that the presiding member appears to have accepted all of the factual allegations made by the applicant. There is no mention in the findings and reasons of any allegation being rejected. I would expect to see such a finding if there had been one. I find, on the basis of the findings and reasons of the presiding member, that all of the allegations made by the applicant were accepted. The difficulty that the applicant then faces is that the decision of the RRT turned not on a rejection of any claim made by the applicant but on the view the presiding member took of the application of the Convention to those claims.

17. The presiding member found first that the harm suffered by the applicant in her position in the mayor's office and at the hands of her fellow citizens was not serious harm for the purposes of the Convention as interpreted by reference to s.91R of the Migration Act. Critically, in relation to the harm suffered by the applicant at the hands of the Kazakh police in their investigation of the death of a child by drowning, the presiding member took the view and found that the applicant's mistreatment had no racial motivation on the part of the police or anyone else. The factual claims made by the applicant were identified by the presiding member earlier in her reasons. To my mind, that establishes that the allegations were considered.

18. The presiding member has chosen to roll up all of those allegations in terms of "hounding by the police". The seriousness of the claims made by the applicant to my mind renders it difficult to regard the treatment as merely hounding. Nevertheless, that is the way the presiding member chose to identify the claims. On any rational view, the treatment that the applicant received at the hands of the police, as set out in that part of her written claims that I have quoted, was persecution. The presiding member did not find otherwise and, in my view, it is implicit in the reasoning of the presiding member that the applicant had been persecuted at the hands of the Kazakh police. I am reinforced in that view by noting that the presiding member took care to find that other harm suffered by the applicant was not sufficiently serious to amount to persecution.

19. The presiding member concluded, however, that there was no Convention nexus with that persecution because there was no racial motivation for it. On the basis of that analysis, the applicant cannot succeed in her contention that there was a failure on the part of the RRT to consider this part of her claims. The RRT was aware of the relevant part of her claims and referred to it. It was dealt with remarkably briefly by the presiding member, but it was dealt with. The difficulty that I have with the presiding member's reasoning is that I do not understand how the presiding member, having accepted the applicant's claims, which established persecution, found that there was no racial motivation for it.

20. The applicant, in her claims, clearly pointed to a racial motivation. The facts were that the police, by words and deeds, brutalised the applicant and her child because they were Russians. Mr Smith, in his oral submissions, sought to explain what he presumed was the reasoning of the presiding member by reference to an analogous situation, whereby there may be an altercation between two drivers of cars because of some default on the part of one of the drivers, and in the course of that altercation there may be racist abuse simply because one of the drivers was a member of some race or some particular social group.

21. By analogy of reasoning, Mr Smith submits that the presiding member took the view that the police entered upon the course of conduct they followed because the police were looking for a document significant to their investigation of the drowning of the child. The racist abuse which occurred was, it would seem on that analysis, incidental. I must say I have difficulty accepting that proposition in the face of the applicant's allegations which the RRT accepted. The words used by the police pointed to a racial motivation. Unless the physical abuse of women and children is a normal part of policing in Kazakhstan or a necessary part of the search for documents (and the presiding member did not point to any evidence that it was) it is difficult to conclude that the police would have treated the applicant and her son in the same way if they had not been Russian. The issue is whether the conclusion reached by the RRT that there was no racial motivation on the part of the police or anyone else was reasonably open to the presiding member on the material before her.

22. That issue was not argued before me. The applicant was legally represented and in the circumstances I do not consider it appropriate to go beyond the terms of the application. I do not mean by that to indicate any criticism of Mr Maroya, but merely to observe that an additional legal issue might properly have been raised. It is possible of course that that issue may be raised before the Federal Court if these proceedings are taken further. Given my concern at the outcome of the proceedings in the RRT based upon the reasoning of the presiding member in the face of the evidence accepted by her, which clearly pointed to persecution on some basis, this would be a case meriting further consideration by the Minister.

23. I have no power to require or influence that consideration but consideration by the Minister of the issues at this point may avoid further expenditure of legal resources in continuing litigation. I leave that issue in the hands of the Minister and her advisers.

24. I will dismiss the application. Secondly, I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $4,000. I am satisfied that costs of that order would have been reasonably incurred on behalf of the Minister, having regard to the amount of preparation done and the obvious need for the Minister to be represented by counsel for the purposes of today's hearing.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 18 November 2004


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[1] (2003) 199 ALR 364

[2] (2003) 75 ALD 630

[3] Minister for Immigration v Yusuf (2001) 206 CLR 323
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