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MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - whether applicant the victim of anti-Semitic persecution in Ukraine - whether the RRT took into account an irrelevant consideration - whether conclusions reached by the RRT reasonably open on the evidence - no reviewable error found.

SZACH v Minister for Immigration [2003] FMCA 173 (5 May 2003)

SZACH v Minister for Immigration [2003] FMCA 173 (5 May 2003)
Last Updated: 28 May 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZACH v MINISTER FOR IMMIGRATION
[2003] FMCA 173



MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - whether applicant the victim of anti-Semitic persecution in Ukraine - whether the RRT took into account an irrelevant consideration - whether conclusions reached by the RRT reasonably open on the evidence - no reviewable error found.



Migration Act 1958 (Cth)

Applicant:
SZACH



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ1289 of 2002



Delivered on:


5 May 2003



Delivered at:


Sydney



Hearing date:


5 May 2003



Judgment of:


Driver FM



REPRESENTATION

Applicant appeared in person

Counsel for the Respondent:


Mr S Lloyd



Solicitors for the Respondent:


Sparke Helmore



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 $3,000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ1289 of 2002

SZACH


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
(Revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal ("the RRT") made on 21 October 2002 and handed down on 12 November 2002. The applicant is a Ukrainian citizen and an ethnic Jew. He made claims for a protection visa based upon his Jewish ethnicity. The RRT affirmed a decision of a delegate of the respondent not to grant the applicant a protection visa. The relevant background facts are set out in paragraphs 2 to 7 of the respondent's outline of written submissions filed on 29 April 2003. I accept as accurate that background statement and adopt paragraphs 2 to 7 for the purposes of this judgment:

The applicant, a citizen of the Ukraine, arrived in Australia on 1 November 2000.

He lodged an application for a protection visa on 1 December 2000.

On 23 March 2001, the application was refused by a delegate of the Minister.

On 19 April 2001, the applicant applied to the RRT to review the delegate's decision.

The applicant attended a hearing before the RRT on 10 October 2002 to give evidence and make submissions.

The RRT decision was handed down on 12 November 2002. Its reasons may be summarised as follows:

(a) the RRT had significant problems with the applicant's credibility;

(b) the applicant is Jewish;

(c) the applicant has experienced verbal harassment at school and university;

(d) the RRT did not accept the applicant's claims to have suffered discrimination by reason of his Jewish ethnicity;

(e) in any event, the RRT did not consider that the harassment or any discrimination was serious enough to constitute persecution (especially given that he was able to find employment with his father and thus not be deprived of a means of subsistence);

(f) the RRT did not believe the applicant's claim to have been attacked in August 2002. However, it considered that even if it had happened as the applicant claimed, the essential and significant motivation for the attack on him was that he attempted to stop criminals harming one another;

(g) the RRT did not accept the applicant's claim that his father had been attacked and, separately, that his house had been vandalised. The RRT did not accept these claims, noting that there was no country information suggesting that there had been anti-semitic attacks in people's homes;

(h) similarly, the RRT did not believe the applicant's claims about threatening phone calls and stone throwing. In any event, it considered that they did not constitute persecution;

(i) the RRT concluded that the applicant had not suffered Convention-based persecution in the past;

(j) the RRT then undertook an assessment of the applicant's prospects of suffering persecution in the future if returned to the Ukraine. It referred to country information which had previously been set out in detail. The RRT considered that the applicant would be able to access state protection sufficiently and that he did not face a real chance of persecution for a Convention reason in the foreseeable future.

2. The application for review filed on 9 December 2002 is somewhat discursive. It is supported by a short affidavit by the applicant filed on the same day. In his affidavit the applicant says that he is a citizen of Ukraine and lived there all his life. He says that in recent years, because of nationalistic and anti-Semitic movements, he had been attacked and persecuted because he is a Jew. He says that he has never practised the Judaic religion but in his Ukrainian passport his nationality is stated as Jewish. I assume he means his ethnicity. The applicant says that he was beaten up in the streets by complete strangers simply because of his appearance. He says that although he has not been baptised he is an adherent of the Christian Orthodox faith. He says that his religious beliefs have nothing to do with his ethnicity.

3. The applicant was invited to make oral submissions to me today. I gave him that opportunity after requiring Mr Lloyd to present his submissions first. I adopted that procedure because the applicant had not seen the respondent's outline of submissions prior to the hearing today. In his oral submissions, the applicant took issue with certain factual information relied upon by the RRT. He also was apparently concerned that not all of his claims had been accepted by the RRT. The applicant's oral submissions were brief. Essentially he relies upon his application and affidavit. I explained to the applicant that these proceedings were limited to legal issues and that, although he may disagree with the decision of the RRT, this Court could not review the merits of the RRT decision. In large part, the applicant's grounds of review identified in the application go to the merits of the RRT decision.

4. Mr Lloyd has accurately identified the salient points in the application in paragraph 8 of his written submissions. I adopt for the purposes of this judgment Mr Lloyd's description of the issues raised in the application. While the applicant takes issue with some findings made by the RRT, it is apparent that some of the claims he made were accepted by the RRT. For example, the RRT accepted that the applicant is of Jewish ethnicity and that he was the victim of some incidents of discrimination. The RRT did not accept that he was the victim of persecution by reason of his ethnicity.

5. The applicant had referred to a number of incidents in support of his claim of persecution. The RRT found that some of these incidents did not occur. In relation to some other incidents, in particular an incident where the applicant was physically attacked, the RRT found that this occurred because the applicant had intervened in a brawl. In my view, the RRT was entitled to make the findings on credibility that it did and no legal error is apparent in the RRT's treatment of the applicant's claims of past persecution.

6. The RRT accepted that there has been anti-Semitism in Ukraine for many years and that, at least to some degree, that anti-Semitism remains. However, the RRT did not accept that the applicant had been the victim of anti-Semitic persecution in the past. Neither did the RRT accept that the applicant would suffer anti-semitic persecution should he return to Ukraine. The RRT had regard to country information which tends to indicate an improvement in the sense of a decreasing incidence of anti-Semitic attacks or an increase in the determination on the part of the Government of Ukraine to deal with it. The RRT found that while anti-Semitism still exists in Ukraine, it has no connection to the State and that the State does not condone it. The RRT found that the applicant could avail himself of adequate state protection in Ukraine. In my view, these findings by the RRT were reasonably open to it on the material before it.

7. The applicant takes issue, in addition, with the RRT's reliance upon country information that deals with the rights of Jews to practise their religion. Although not expressly stated in his application, the applicant appears to be contending that the issue of religious freedom in Ukraine is an irrelevant consideration. However, the applicant's own adviser had put before the RRT information relating to attacks on Jewish places of worship. In my view, the RRT was entitled to have regard to information not only on the status of Jews as an ethnic group but also the status of Jews in Ukraine as adherents to the Judaic religion. The applicant claims to be a secular Jew and in fact now an adherent to Christianity. To the extent that the position of non religious Jews is better than the position of religious Jews in Ukraine, the RRT was entitled to have regard to those relative positions.

8. Having heard the applicant and having considered his application in the light of the material in the court book, I am not satisfied that any error of law going to the jurisdiction of the RRT has been identified. The Hickman provisos are plainly satisfied. In the circumstances, the decision of the RRT is protected by the privative clause of s.474 of the Migration Act 1958 (Cth). I will dismiss the application.

9. On the question of costs, Mr Lloyd has sought an order for costs on behalf of the Minister and has advised that the solicitor and client costs of the Minister are approximately $5,000. The applicant did not wish to make submissions on the issue of costs. On a party/party basis, and having regard to the fact that this matter is one of average difficulty or complexity, in my view, an order for costs and disbursements in the sum of $3,000 is called for. I will order that the applicant pay the respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $3,000.


I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 26 May 2003
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