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MIGRATION - Review of RRT decision - where applicant claims to have a well-founded fear of persecution for Convention reason of political opinion - where applicant did not attend hearing - where applicant did not provide details of his political activities - where application for judicial review does not particularise how the Tribunal fell into jurisdictional error - whether Tribunal should have established why the applicant did not attend the hearing - whether Tribunal should have made additional enquires into the applicant's claims.

SZAUN v Minister for Immigration [2004] FMCA 638 (17 September 2003)

SZAUN v Minister for Immigration [2004] FMCA 638 (17 September 2003)
Last Updated: 1 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAUN v MINISTER FOR IMMIGRATION
[2004] FMCA 638



MIGRATION - Review of RRT decision - where applicant claims to have a well-founded fear of persecution for Convention reason of political opinion - where applicant did not attend hearing - where applicant did not provide details of his political activities - where application for judicial review does not particularise how the Tribunal fell into jurisdictional error - whether Tribunal should have established why the applicant did not attend the hearing - whether Tribunal should have made additional enquires into the applicant's claims.



Migration Act 1958 (Cth), s.426A

Federal Magistrates Court Rules 2001

WAJR v MIMIA [2004] FCA 106

Applicant S341/2003 v MIMIA [2004] FCA 168

Dranichnikov v MIMA (2003) 197 ALR 389

Abebe v Commonwealth (1999) 197 CLR 510

Applicant:
SZAUN



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 1119 of 2003



Delivered on:


17 September 2003



Delivered at:


Sydney



Hearing date:


17 September 2003



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Applicant in Person



Counsel for the Respondent:


Mr J Smith



Solicitors for the Respondent:


Blake Dawson Waldron



CORRIGENDUM

The date of hearing of this Judgment and the date of delivery of this Judgment should read 17 September 2004.

I certify that the preceding paragraph is a true copy of the Corrigendum to the Reasons for Judgment of Raphael FM

Associate:

Date: 25 October 2004

ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs assessed in the sum of $3,750 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 1119 of 2003

SZAUN


Applicant

And

MINISTER FOR IMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant is a citizen of the Ukraine. He arrived in Australia on

22 November 2000. On 2 December 2000 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 27 August 2002 a delegate of the Minister refused to grant a protection visa and on 24 September 2002 the applicant applied for review of that decision.

2. It is well to observe that the procedures that were gone through by the delegate were more thorough than one often sees in cases of this nature. In particular, a detailed letter was sent to the applicant [CB 37] - [CB 38] requesting further information from him and putting to him problems that he might face in satisfying the delegate.

3. The applicant had employed a migration agent, who responded to the letter from the delegate [CB 39] - [CB 40]. Importantly, the delegate asked for some corroborating material of the applicant's claim that he was a member of the Ukrainian Communist Party and had suffered as a result to the extent that he believed he was being persecuted for his political opinion. The response from the migration agent was not particularly fulsome in its detail nor did it provide any additional documentation.

4. When the matter came before the Refugee Review Tribunal for consideration, the Tribunal wrote to the applicant the standard letter informing him that it could not come to a favourable decision on the documents alone and offered him the opportunity to attend a hearing. That opportunity was at first refused then accepted, but the applicant did not appear. The Tribunal proceeded, as it was entitled to do, under s.426A of the Migration Act 1958.

5. There was really only one ground upon which the Tribunal rejected the applicant's claim and that was stated at [CB 72]:

"The applicant states that he was a member of the Ukrainian Communist Party and that he was active in a voluntary capacity at the Lviv regional headquarters during the 1999 elections. The applicant provided no substantive detail about his claimed party membership and activities. I note the delegate asked for detail on this aspect of his claim and that the applicant did not provide such information to the Department or to the Tribunal. On the evidence I am not satisfied that the applicant was a member of the Communist Party and that he was active on it behalf as he claims."

6. As the Tribunal noted, this really ends the matter. If he was not a member of the Communist Party, then any believed persecution that he suffered cannot be for the convention reason of political opinion and he was therefore not a person to whom Australia owed protection obligations under the Convention. That is in essence what the Tribunal decided.

7. Before me today the applicant asked if he could rely solely upon his application and the affidavit in support. The application has as its grounds the following:

I ask the Federal Court of Australia to consider whether issues of fairness in my case have been observed. I ask for review whether my statements have been assessed in accordance with the case. I question methods used in the assessment of my case. The decision of RRT was handed down on 5 June 2003.

8. In his affidavit the applicant says that he is an active member of the Ukrainian Communist Party and was persecuted. It rehearses his story concerning his association with the Lviv Regional Party and the attacks that were made upon him. It is in essence a repeat of the factual matters submitted both to the delegate and to the Tribunal, and accepted by neither. The application and the affidavit did not in any way illuminate a possible jurisdictional error on the part of the Tribunal.

9. The applicant also provided me with a typed written submission in which he explained that the Tribunal had not taken into account how difficult it was for him to obtain evidence. He also said that the Tribunal did not try and establish why he didn't attend the hearing. He pointed out that the Tribunal had an interpreter available, but no inquiries were made. That he could have been asked to provide further information.

10. To the extent that this submission suggests that the applicant was under emotional strain which prevented him from attending the hearing, I note that in WAJR v MIMIA [2004] FCA 106 French J said at [43]:

"It is undoubtedly the case that many people, perhaps most people, who appear before the Tribunal are under emotional stress. This does not require an inquiry by the Tribunal in every case where an applicant is evidently under stress into the question of the applicant's fitness to appear. The Tribunal would be entitled to expect that a migration agent appearing for the applicant in such a condition, would bring it to the attention of the Tribunal and seek to support it by medical evidence with a view to securing an adjournment."

But in this case the applicant at no time raised any reason for his non-appearance and he was represented by a migration agent.

11. Insofar as the applicant's submission suggests that the Tribunal should have conducted further and additional inquiries, I note that in Applicant S341/2003 v MIMIA [2004] FCA 168 Whitlam J said at [8]:

"Furthermore, the Federal Magistrate correctly stated the law on jurisdictional error. The Tribunal is not required to initiate additional inquiries beyond the material presented by the applicant (see Applicant S (2002) 124 FCR 256 at 257 at [1] per Whitlam J, 275 at [74] per Stone J, North J dissenting; Randhawa (1994) 52 FCR 437 at 443 and 451; Selvadurai (2000) FCA 1536 at [13])."

12. It has been made clear by the Full Bench of the High Court in Dranichnikov v MIMA (2003) 197 ALR 389 at [78] that the function of the Tribunal as of the delegate is to respond to the case that the applicant advances. See also Abebe v Commonwealth (1999) 197 CLR 510 at [187] per Gummow and Heydon JJ.

13. In all the circumstances it seems to me that the applicant has failed to advance any ground upon which I could review the decision of the Tribunal in this matter. I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $3,750 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court rules.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 23 September 2004
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