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MIGRATION - Review of decision of the Refugee Review Tribunal - application for protection visa - whether the applicant had a well-founded fear for reasons of political association - credibility of applicant's evidence - whether there was a real chance of persecution - whether the Tribunal fell into error by misrepresenting the applicant's account of events or ignoring important evidence - whether applicant had the requisite subjective fear.

NAPZ v Minister for Immigration [2003] FMCA 47 (4 March 2003)

NAPZ v Minister for Immigration [2003] FMCA 47 (4 March 2003)
Last Updated: 19 March 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAPZ v MINISTER FOR IMMIGRATION
[2003] FMCA 47



MIGRATION - Review of decision of the Refugee Review Tribunal - application for protection visa - whether the applicant had a well-founded fear for reasons of political association - credibility of applicant's evidence - whether there was a real chance of persecution - whether the Tribunal fell into error by misrepresenting the applicant's account of events or ignoring important evidence - whether applicant had the requisite subjective fear.



Minister for Immigration v Wu Shan Ling (1996) 185 CLR 259

Minister for Immigration v Yusuf (2001) 180 ALR 1

NABE v Minister for Immigration [2002] FCAFC 228

Applicant:
NAPZ



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 772 of 2002



Delivered on:


4 March 2003



Delivered at:


Sydney



Hearing date:


11 February 2003



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Applicant in person



Counsel for the Respondent:


Mr J Smith



Solicitors for the Respondent:


Sparke Helmore



ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs assessed in the sum of $4,500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 772 of 2002

NAPZ


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant in this matter is a citizen of Belarus. He arrived in Australia as a temporary business entrant in July 2000 and applied for a protection (Class XA) visa on 15 August 2000. His application was considered by a delegate of the Minister and rejected on 11 December 2000. The applicant sought review from the Refugee Review Tribunal who made a decision to uphold the delegate's decision on 20 June 2002 and handed it down on 11 July 2002. The matter came before me originally on 19 November 2002. Early in that hearing the applicant, who appeared on his own behalf, indicated that he had received certain advice in writing from Counsel and that he wished to use that advice as the basis for his submissions. The advice was detailed and came from a respected practitioner in the field. I ordered that the applicant provide a copy to the respondent's solicitors and adjourned the matter for hearing.

2. The applicant came from Grodno. From 1991 to 1995 he was the Deputy on the Grodno Regional Council nominated by employees at the factory in which he worked as a mechanical engineer. Work on the Regional Council occupied him for approximately two days per week. In the winter of 1994 President Lukashenka appointed a Mr Dubko as head of the territorial administration. The applicant claims to have made an impassioned speech to the Regional Council on the illegality and perversity of such a blatant political appointment. The speech caused the applicant problems which resulted in him not being nominated for a second term on the Regional Council. When he returned to work full time at the factory the director suggested that he resign. When he refused, charges were brought against him alleging that he was responsible for the theft of machinery from the factory. He was charged, some police came to his house without a warrant, punched or slapped him in the face but eventually the charges were dropped. He told the Tribunal that he had complained to the Procurator General who agreed that the case had not been handled properly.

3. In 1997 the applicant had briefly been detained on the basis of an accusation of rape. He had been questioned for six hours but eventually was released with a sarcastic apology. He believed that this accusation was made in order to destroy his career. He finally resigned from the factory in September 1997 after having spent three weeks in hospital as a result of the stress he was under. He believed he had been placed on a black list of unreliable people.

4. In December 1997 he began trading in the clothing market in Grodno and joined the Entrepreneurs' Association of which Valeri Levonevsky was the chairman.

5. The applicant became important in the association. He was soon appointed Deputy Director of the city branch and provided advice to people about their rights and participated in stop work meetings or strikes. He encountered problems at the market because of his political activity. He said he had been picked on by inspectors about taxes and harassed by the police. The applicant claimed that one of his friends who had also been a member of the association had been shot and killed after leaving the applicant's home and that in February 1998 six small business owners travelling to Moscow had been killed. Two of these people were members of his association and he claimed that the police did nothing to investigate.

6. The applicant claimed to have participated in protest marches organised by the Belarusky Narodni Front in 1999 and 2000. He had been arrested with others and beaten up and his teeth had been broken. After a disturbance by himself and others in his cell, he was released and requested to sign a confession. There had been some follow up from the police but he had ignored that and the investigation eventually ceased. The applicant advised the Tribunal that Valeri Levonevsky had been arrested and he had petitioned for his release. He had been advised not to meddle in other people's business and received anonymous phone calls advising him to stop his activism or face the consequences.

7. The applicant was issued with a passport on 13 April 2000 and shortly thereafter travelled to Poland. When he returned he had been attacked and bashed as a result of an article which he had published in a newspaper entitled "Pursuit". He referred to other problems with authority including being threatened with a pistol and finally an incident in which he believed that his car had been forced off the road by another vehicle. His car was completely written off. This was the final incident which persuaded him that he should leave Belarus so he travelled to Moscow for the purposes of attempting to obtain a visa. The incident had occurred in May and he left the country around the beginning of July. He spent about two weeks in Moscow, where his sister lived, before coming to Australia.

8. The applicant's claim to a well founded fear of persecution for convention reasons arose out of his political activities and the threats made to him which have been described in outline above. The Tribunal had asked him why he did not apply for refugee status when he went to Poland as Poland is a signatory to the Refugee's Convention. The applicant said he did not think that Poland would give him protection and that he wanted to be as far away as possible from Belarus. The Tribunal asked the applicant to comment on country information that suggested that failed asylum seekers who were not well know political opponents were not likely to face problems upon return to Belarus. The applicant had replied that the correspondence between him and his family was being checked and his telephone conversations were being monitored.

9. The Tribunal's decision and reasons set out the following observations and findings:

a) The Tribunal observed that the applicant's evidence had been broadly consistent and it accepted that he had been telling the truth about his past experiences in Belarus. However, the Tribunal did not accept the interpretation that the applicant had put on the events.

b) In relation to the specific events the Tribunal made a number of findings. It did not accept that the accusation of rape in 1997 had been anything other than a case of mistaken identity. It did not accept that there was anything in the applicant's evidence in relation to the false allegation of theft from the factory to suggest that the police were doing other than conducting an investigation of an allegation of criminal conduct. The Tribunal did not consider that the investigation was politically motivated. The Tribunal did not accept that any pressure by management of the factory to ensure that the applicant was not nominated for a second term as a Deputy on the Council had led to "serious harm" that would constitute persecution. It did not accept that he was, in effect, forced to resign from his employment nor that he was denied the ability to earn a livelihood by reason of his political opinion following his resignation. The Tribunal noted the applicant had stayed on for almost two years after the speech.

c) The Tribunal did not accept that the harassment the applicant received in the market from the police and tax inspectors amounted to victimisation on account of his political beliefs nor that it amounted to persecution on account of his being a member of a particular social group. The Tribunal considered that it was more likely that because businessmen were known to have money and stock this made them suitable victims for tax inspectors, police and standover men.

d) The Tribunal did accept that the applicant was subject to persecution by reasons of his political opinion in the arrest, detention and beatings referred to as taking place in January 1999 as a result of his involvement in the business association and its various strikes and protests. But it considered that his own behaviour thereafter cast doubt upon whether he held a well founded fear that he be persecuted as a result of those events. The Tribunal noted that he ignored the summons and nothing had happened and that he continued to participate in demonstrations and protests throughout 1999 and 2000 and that even after receiving threatening phone calls from an unidentified person at the Public Prosecutors Office he continued with his work in the association.

e) The Tribunal did not accept the bashing incident was connected with the publication of the article in "Pursuit" but believed it was simply a random and unprovoked attack. The Tribunal did not accept the applicant's account of what had happened to him in the car incident nor that it was an attempt to kill him related to his political opinions. The Tribunal noted that the applicant travelled to Moscow at the beginning of July to make arrangements to obtain a visa for Australia and then returned to Belarus rather than seek asylum in Russia or Poland.

f) The Tribunal did not accept the fact that the authorities in Belarus had been checking on the applicant's correspondence and telephone conversations led to the conclusion that he was such a significant political figure that he would attract adverse attention by reason of his having applied for asylum in Australia. It concluded he was not a high profile political opponent of the Lukashenka regime and there was therefore no real chance that he would be persecuted for reason of having applied for refugee status in Australia. The Tribunal concluded that it accepted that the applicant would probably continue his political activities if returned to Belarus but even in those circumstances there was no real chance that he would be persecuted on account of his political opinion.

10. The applicant alleged that the Tribunal had fallen into error as a result of it producing a sanitised version of his claims which it then refuted. The sanitisation consisted of either misrepresenting the applicant's account of events or simply ignoring important aspects of his evidence that would have established a nexus between the events and one of the convention reasons. The most serious incidences of this occurrence are:

i) The Tribunal's recitation at [CB 124] of the police raid following the false accusation of theft from the applicant's factory made no reference to his critical claims that the police had told him "If you continue to be against the government it will be worse for you", and that he should watch out about his protests. This evidence does not sit well with a finding of no nexus with political opinion.

ii) The Tribunal's recitation at [CB 125] of the harassment that the applicant received at the market contain no reference to his claim to have been told by the police "This is what will happen to you, you should do less protesting against the government" and his claims that his wife was told their problems were all because of the applicant's involvement in politics against the government. There was no reference at all to the applicant's claim that his brother had been stood down from his government job and that he should thank the applicant for his suffering because of his political views. None of this evidence was canvassed by the Tribunal in its findings on these incidents at [CB 132-133]. By leaving these matters out of consideration the Tribunal was able to deny there was any nexus between the harassment and the applicant's political beliefs or political social group.

iii) The Tribunal's recitation at [CB 127] of the threat by police at gunpoint at the market was similarly sanitised. The Tribunal changed the wording given by the applicant in a manner which made it easier for it to later make the finding that the threat by the police to kill him if he did not cease his "activities" was merely prompted by his behaviour and not his political activities. The sanitised version made it possible for the Tribunal to interpret the word "activities" to refer to the applicant's behaviour in the market. However, had the words been accurately recited as recounted by the applicant the Tribunal could not have made this finding.

iv) The Tribunal's finding about the car incident and description thereof at [CB 134] omits any reference to the applicant being forced off the road by another vehicle which was recounted by the Tribunal at [CB 128].

11. The applicant submits that what the Tribunal did in relation to the above matters was ignore relevant material or fail to make findings in relation to those issues which would constitute error of the type described by Gleeson CJ in Minister for Immigration v Yusuf (2001) 180 ALR 1 at [44] and by McHugh, Gummow and Hayne JJ at [84].

12. The respondent argues that in overlooking various parts of the applicant's evidence the Tribunal only committed an error of fact such as that discussed by Wilcox J in NABE v Minister for Immigration [2002] FCAFC 228 at [342] and accepted by French J at [562] and Von Doussa J at [650]. There is also the danger that the analysis undertaken by the applicant's support of its contentions is one similar to that discussed in the Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259. At 272, the court makes reference to the decision of the Full Bench in Collector of Customs v Pozzolanic (1993) 43 FCR 280 where it was said:

"The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error."

Then continues:

"These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed."

13. But the applicant faces a more serious problem. The Tribunal's decision indicates a view that the applicant was not at risk of serious harm in Belarus and did not himself believe that that was so. The applicant continued to engage in political activity notwithstanding the threats that were made to him and travelled to countries which would have provided him with protection but did not seek asylum there. He returned to Belarus before he left for Australia. These findings go directly to the applicant's subjective fear. If the Tribunal is satisfied that the applicant did not have a subjective fear of persecution (and the comments made in the first paragraph of [CB 135] would appear to confirm that) then the Tribunal's failings in regard to its interpretation of the facts put by the applicant as previously described is irrelevant. They are not the facts upon which the Tribunal bases its opinion about his fear.

14. I am therefore satisfied that consistent with the view of Kirby J in Wu Shan Ling (1996) 185 CLR 259 at [291] I should give a beneficial construction to the reasons of the Tribunal and not find that it has fallen into jurisdictional error in the making of this particular decision.

15. I dismiss the application and I order that the applicant pay the respondent's costs in the sum of $4,250.00 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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