|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Federal Court of Australia |
Last Updated: 23 February 2007
FEDERAL COURT OF AUSTRALIA
SZDGK v Minister for Immigration and Citizenship [2007] FCA 186
SZDGK
AND SZDGL v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW
TRIBUNAL
NSD 1579 OF 2006
SIOPIS J
23 FEBRUARY
2007
SYDNEY
|
AND:
|
THE COURT ORDERS THAT:
1. The name of the first respondent be amended to ‘Minister for Immigration and Citizenship’.
2. The appeal is dismissed.
3. The appellant is to pay the first respondent’s costs.
Note: Settlement and entry of orders
is dealt with in Order 36 of the Federal Court Rules.
|
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
|
|
BETWEEN:
|
SZDGK
First Appellant SZDGL Second Appellant |
|
AND:
|
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent |
|
JUDGE:
|
SIOPIS J
|
|
DATE:
|
23 FEBRUARY 2007
|
|
PLACE:
|
SYDNEY
|
REASONS FOR JUDGMENT
1 This is an appeal against a judgment of a Federal Magistrate of 9 August 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) of 2 March 2004 which was delivered on 23 March 2004. The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellants.
2 The appellants are Latvian citizens who arrived in Australia on 25 October 2002 on a single travel visa, and applied for protection visas six days later. The second appellant is the husband of the first appellant and was included as a ‘member of the family unit’ in his wife’s application. The first appellant’s claim for the protection visa was set out in a statement prepared by a migration agent. The first appellant claimed that she feared that she would be persecuted on the grounds of an imputed political opinion if she were to return to Latvia. The first appellant claimed that she worked part-time for a publishing house in Latvia collecting information for journalists and was involved in gathering evidence about the involvement of prominent politicians, including the Prime Minister of Latvia, in a paedophile scandal. The first appellant claimed that she interviewed victims involved in the scandal and that by May 2002 she had collected evidence comprising audio and video-tapes and other documentary records. In May 2002, the police searched the first appellant’s apartment on the pretext, she says, of carrying out investigations in relation to a case apparently pending against the first appellant’s brother, and found and removed the materials the first appellant had collected on the paedophile investigation.
3 The first appellant also claimed that on return from a business trip to Italy she and her husband had been beaten by a group of people, and that her husband had recognised one of the attackers as being someone he had previously seen wearing a police uniform. Further, the first appellant said that in June 2002, the police came to the first appellant’s place, produced a document saying that the police had in May 2002 found material relating to child pornography and said that they had to conduct another search. The appellants tried to explain that the documents were collected as part of the first appellant’s job, but the ‘person in charge’ threatened the first appellant with the ‘horrible consequences of her crime’. After the police left, the appellants believed that they were in grave danger of a fabricated case of ‘possessing and distributing pornographic material’ being made against the first appellant. The visa application concluded by stating that ‘...there is a chance that the [first appellant] will be persecuted if she returns to Latvia’.
4 The delegate of the first respondent rejected the first appellant’s claim. He accepted that there had been a major scandal in Latvia involving allegations of paedophilia by senior politicians in Latvia. There was evidence that a parliamentary commission was established to investigate the scandal and that it had reported. The delegate also noted that many people in various parts of the media in Latvia had been involved in reporting and researching the claims of paedophilia. The delegate went on to say that he had been unable to find in the country information, any reports of ‘state sanctioned persecutory treatment’ of any media personnel on account of their reporting of the scandal. The delegate also found that there were several aspects of the first appellant’s claim that were implausible.
Tribunal proceedings
5 The first appellant gave oral evidence by telephone to the Tribunal.
6 Before the Tribunal, the first appellant said that in May 2002 the police had come to her apartment and had taken her file of materials collected during her investigation into paedophile activities by politicians. She said that the police were using the materials found in her home to fabricate a criminal case against her. The first appellant said that when the police attended her apartment in June 2002, the police told her that they had commenced a criminal case against her. They said a summons would be sent. She also said that shortly after this second visit from the police, she and her husband moved from their residence and went into hiding. A summons had been sent, but she did not know what the summons required her to do. As she and her husband were in hiding, her husband had thrown the summons away. The first appellant said she did not defend that summons through the Latvian system as the courts were not effective.
7 The Tribunal put to the first appellant that she had left Latvia, from Riga airport, despite there being a summons issued against her and this indicated that there was no risk to her, nor that she suffered fear associated with leaving Latvia. The first appellant responded that she and her husband were scared and it was better for the authorities to get rid of her and not have any problems with her.
8 The first appellant stated she had not reported the attack on her return from the business trip to Italy to the police, nor had she publicised the attack in the press. The appellants also provided the Tribunal with a document from a security firm stating that the first appellant used the services of the firm in March 2002 and May 2002.
9 The Tribunal did not accept that the first appellant’s claim was Convention related. The Tribunal said:
‘I do not accept that the applicant’s claims are Convention related. Whilst the applicant claims she suffered harm because of her political opinion, the evidence does not suggest that the applicant had any involvement in or interest in any political party or political movement or that she had any political profile. Whilst she claims that the persons she was in a position to expose were politicians, this does not impute a political opinion to the applicant. Rather she was attempting to expose criminal activity and any harm occurred because of these investigations into crime.
As was said by Merkel J in Zheng v MIMA [2000] FCA 670
"exposure of corruption can, in a wide range of circumstances, lead to political persecution. Thus, exposure of corruption in circumstances where it so permeates government as to become part of its very fabric can quite easily lead to a fear that the exposure, of itself, may be imputed to be an act of opposition to the machinery, authority or governance of the state."
I have found no evidence to suggest that persons in Latvia who expose criminal activity by parliamentarians or politicians are harassed or harmed. I am of the view that were this the situation known to sources used by agencies such as the US State Department, the Australian Department of Foreign Affairs and Trade, the United Kingdom Home Office and UNHCR [sic]. The paedophile scandal in Latvia was investigated by the state (see independent evidence above) and parliamentarians were charged. Latvia has passed legislation protecting children against abuse. This does not suggest to me that exposure of paedophilia in Latvia amounts to political persecution.
On the evidence before me I find all the applicant’s claims are not Convention related.’
10 The Tribunal went on to say that, even if it was to accept that the first appellant’s involvement in the paedophile investigation had the consequence of imputing a political opinion to the first appellant, it, nevertheless, rejected the claim on the grounds that the claim was not plausible.
11 The Tribunal gave the following reasons for this finding. It was implausible that the first appellant, as a journalistic novice, would be able to get new information about the scandal direct from the victims, when the scandal had been the subject of extensive attention by the media, and a parliamentary commission. Further, it did not ring true that a person studying law and working for a publishing house, who claims to be attacked by police because of her journalistic endeavours, would not, at the first available opportunity, attempt to expose that police treatment.
12 Further, the Tribunal noted that the parliamentary commission’s report had been made in April 2000. Several persons had been charged in respect of matters relating to the scandal and action taken as a consequence. There was no evidence that there was any need for continuing investigation of the scandal. Nor was there any evidence that the victims were dissatisfied in respect of the outcomes of the investigation of the scandal.
13 It was also implausible, said the Tribunal, that a person who was in fear and aware that a summons has issued, or would issue, on fabricated charges would wait three and a half months after the issue of their Australian visa, before leaving the country. The Tribunal noted that they could have easily crossed a border to escape the authorities, and did not need to wait for a visa. The Tribunal said that the appellants had travelled in and out of Latvia to such countries as Italy and Turkey from about the year 2000. The Tribunal did not accept the second appellant’s explanation that if he did not need a visa to escape then his persecutors would also not need one to follow him, and he would still have trouble. Therefore, he said, they needed to move far away. The Tribunal also noted that the appellants had been able to depart Latvia through Riga airport.
14 The Tribunal said that there was no evidence to suggest that the Latvian police persecuted or harmed people who exposed, or attempted to expose, paedophilia by politicians and parliamentarians. It did not ring true that the Latvian police would harass the first appellant by searching her apartment on two occasions and then fabricate a case against her. The independent evidence was that the authorities took action in paedophile cases involving parliamentarians.
15 The Tribunal found that there had been no failure of state protection, as this was not tested because the appellants had not taken their complaints to the police. The first appellant said that this was because the police were part of the structure she was seeking to expose. The second appellant said this was because the police were useless. However, the Tribunal rejected these explanations for their inactivity, and held that there was a reasonable willingness on the part of the Latvian authorities to take action in respect of criminal acts against citizens, such as the alleged assaults against the appellants. The Tribunal also said that there were mechanisms available in Latvia for making complaints against public officials.
16 As to the first appellant’s explanation that she did not defend her ‘fabricated’ summons because she claims the Latvian courts are ineffective, the Tribunal said that the ineffectiveness of the legal system was not Convention related as it affects all residents of Latvia. Finally, the Tribunal placed no weight on documents provided by the appellants, as they did not give a reason for the need for protection, referred to in the documents.
17 The Tribunal found that the first appellant and her husband created their claims ‘in order to obtain the visa sought’.
18 The Tribunal also considered and rejected the first appellant’s claim, founded on a well-founded fear of persecution, because the first appellant was an ethnic Russian with Latvian citizenship.
Proceedings before the Federal Magistrate
19 Before the Federal Magistrate, the appellants complained that the Tribunal fell into jurisdictional error in concluding that the conduct complained of, did not give rise to a Convention related claim founded on the first appellant’s imputed political opinion. This was because, said the appellants, the Tribunal failed to ask the question whether the conduct complained of, could amount to persecution by reason of actual, or imputed political opinion. The appellants also contended that the Tribunal misapplied the authorities of SZARH v Minister for Immigration and Multicultural Affairs [2004] FMCA 615 and Voitenko v Minister for Immigration and Multicultural Affairs [1999] FCA 428.
20 Further, the appellants claimed that the Tribunal had failed to comply with s 424A(1) of the Migration Act 1958 (Cth) (‘the Act’).
21 The Federal Magistrate found that the decision was unaffected by jurisdictional error.
22 The Federal Magistrate said that, contrary to the contentions of the appellants, the Tribunal had not concluded that persecution on the grounds of imputed political opinion could never arise, except in the context of a party political activity or by a person with a high political profile. The Federal Magistrate found that the Tribunal’s reference to the extract from Zheng v Minister for Immigration and Multicultural Affairs [2000] FCA 670 showed that the Tribunal was ‘attuned’ to the issue which it was required to consider. The Federal Magistrate said that the Tribunal addressed the question of the causal nexus between the first appellant’s conduct in seeking to expose paedophilia among politicians and the allegation of a fear of persecution on the Convention ground of political opinion, by considering the evidence of the first appellant’s actions, and searching for evidence, from country information sources, to support the claim that such activity in Latvia leads to harassment or harm from the state. It found no evidence that those who expose criminal activity in Latvia are harmed or harassed. The Federal Magistrate also referred to the Tribunal’s finding that there had been a state investigation into the paedophile scandal and that parliamentarians were charged, in support of his view that the Tribunal considered the evidence on whether exposure of paedophilia in Latvia would lead to persecution on the grounds of imputed political opinion. The Federal Magistrate found that the question of Convention nexus was addressed by the Tribunal.
23 The Federal Magistrate found that the Tribunal in the two cases relied upon by the appellants, had not addressed the factual question of whether there was a causal connection between the visa applicant’s conduct and a well-founded fear of persecution for a Convention reason, namely, political opinion or perceived political opinion. In this case, by contrast, the Tribunal had addressed that factual issue, and found against the first appellant.
24 The Federal Magistrate considered the appellants’ complaints that they had not been notified under s 424A of the Act of independent country information and found that notification was not required because the information fell within the exception in s 424A(3)(a) of the Act. Further, the Federal Magistrate found that the appellants’ other complaints of not being informed about the rejection of the appellants’ evidence, concerned the thought processes and determinations of the Tribunal which did not constitute ‘information’ for the purposes of s 424A of the Act. There had, therefore, been no failure to comply with s 424A of the Act.
The appeal
25 The notice of appeal stated that the Federal Magistrate should have concluded that the following jurisdictional errors were made by the Tribunal:
(a) The Tribunal failed to consider, or ask itself, whether the conduct complained of, could amount to persecution by reason of actual or imputed political opinion;
(b) The Tribunal failed to comply with its obligations under s 424A of the Act; and
(c) The Tribunal ignored relevant information and took into account irrelevant information.
26 At the hearing, the second appellant, on behalf of the appellants, submitted that the Federal Magistrate had erred in concluding that the Tribunal had considered whether the conduct complained of could amount to persecution by reason of actual or imputed political opinion.
27 The appellants submitted that the Tribunal erred because the Tribunal ‘was convinced’ that exposure of criminal activity did not impute a political opinion. The appellants went on to say that the Federal Magistrate erred in concluding that the Tribunal did not seek to assert that the activity of exposing the corruption of politicians could never lead to a political opinion being imputed to the first appellant; and erred in concluding that the Tribunal had considered the first appellant’s claim on its merits.
28 The impugned conduct in this case was the conduct of the police in Latvia. The question for the Tribunal was whether the evidence established that the impugned conduct by the police occurred because the police attributed a political aspect to the first appellant’s conduct in investigating paedophilia by politicians.
29 In Zheng [2000] FCA 670 at [42]- [43], Merkel J said:
‘In summary, the material and evidence provided by the applicant in support of his application failed to reveal a causal nexus between his exposure of his superior’s corruption and the political persecution he claims to fear. Put another way, there is no material or evidence that raises a case that an actual or perceived political opinion has been attributed to the applicant by the authorities as a result of his exposure of Mr He’s corruption or by reason of his refusal to co-operate with Mr He in relation to his corrupt activities. Accordingly, the material relied upon by the applicant does not suggest that the authorities, Mr He or the officials in the Public Security Bureau responsible for the investigation of the applicant are doing so for any political reason or on the basis that they believe that there is any political aspect to the applicant’s conduct.
Thus far I have only referred to the material presented by the applicant. However, other material, which the RRT accepted, was to the effect that the Chinese authorities were actively campaigning against corruption and were prosecuting corrupt officials thereby further negating any basis for the applicant’s conduct being perceived by the authorities to be an attack on the State, the Communist Party, or the municipal authorities. In those circumstances I have concluded that the evidence and material before the RRT did not raise a case that the applicant had a well founded fear of political persecution.’
30 In my view, the Federal Magistrate did not err in concluding that the Tribunal properly understood and determined the first appellant’s claim. The Tribunal recognised that the exposure of corruption can lead to political persecution - but it depended on the circumstances. The Tribunal then examined the circumstances of this case. Therefore, it undertook the exercise of assessing the evidence to determine whether the evidence showed that the impugned actions of the Latvian police were founded upon, and motivated by, a perception on the part of the police that the first appellant’s activities comprised a statement of a political opinion. It was for that reason that the Tribunal referred to the paedophile scandal in Latvia as having been investigated at state level, and to the lack of evidence that persons who exposed criminal conduct by parliamentarians or politicians in Latvia were harmed or harassed. The Tribunal’s conclusion was that the first appellant’s claims were not Convention related, because, on the evidence, it could not be established that the impugned conduct of the police occurred as a consequence of the police treating the first appellant’s activities as the expression of a political opinion by her which was objectionable to the police as agents of the state. This was a finding of fact which was peculiarly within the preserve of the Tribunal to make. There was no jurisdictional error by the Tribunal, and no error by the Federal Magistrate.
31 The appellants submitted that their case was on all fours with the case of SZARH [2004] FMCA 615, where the applicant applying for a protection visa was a free-lance journalist who was working on a proposed television programme that made allegations of unlawful or improper conduct by the Mayor of Leningrad and his wife. The applicant, in that case, had been arrested whilst carrying out this investigatory work, and the police had driven him to the offices of a security company where the applicant had been severely assaulted. The applicant subsequently fled to Australia. He applied for a protection visa. The Tribunal found that the motivation for the harm that the applicant suffered was not because of any ‘political opinion’ of the applicant but because of the assailants’ desire to escape detection. The Federal Magistrate found that the Tribunal had erred and remitted the case to the Tribunal. The case of SZARH is distinguishable. The difference in that case was that there was evidence before the Tribunal, upon which a conclusion may have been open, that the impugned conduct did have a political motivation, but the Tribunal had not assessed the evidence with a view to considering whether it disclosed the requisite causal nexus. In this case, however, the Tribunal did embark on that inquiry, and found, as a fact, that there was no such causal nexus. I would add that Voitenko [1999] FCA 428 is, for the same reason, also distinguishable from this case.
32 As to the second ground of the appeal, the appellants complained that there was a breach of s 424A of the Act, because they had not received notification of the Tribunal’s findings that part of their evidence ‘did not ring true’, and, its finding that there was no evidence to suggest that persons in Latvia who exposed criminal activity by parliamentarians or politicians were harassed or harmed. In my view, there was no obligation on the Tribunal to give any notification under s 424A of the Act, as the impugned findings evidence the thought processes and determinations of the Tribunal and so do not comprise ‘information’ which was required to be notified to the appellants (SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214). The Federal Magistrate made no error.
33 As to the third ground of appeal, namely, that the Federal Magistrate should have found that the Tribunal ignored relevant considerations and took into account irrelevant considerations, no complaint, in these terms, appears to have been made before the Federal Magistrate. However, I have treated this ground as being the basis for the appellants’ submissions at the hearing which challenged the Tribunal’s finding that there was no evidence that persons, who exposed criminal conduct by politicians or parliamentarians in Latvia, were harmed or harassed.
34 The appellants submitted that there was evidence that the Latvian prosecutor-general had written to a newspaper editor complaining that allegations made in the paper that the prosecutor-general’s office was protecting paedophiles, whilst starting an investigation into the conduct of a politician who served on the parliamentary committee, for unrelated offences, were libellous, and threatening to bring criminal libel proceedings. Also, said the appellants, there was evidence that the person who had at one time been the head of the parliamentary committee, Mr Adamsons, had been charged by prosecutors for making false accusations. The appellants submitted that the Tribunal appeared not to have taken this evidence into account in stating that there was no evidence that persons who exposed criminal conduct by politicians in Latvia were harmed or harassed. In my view, the Tribunal’s statement must be read in context and without seeking to find error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259). Having referred to the evidence, the Tribunal was plainly aware of it. In my view, it was open to the Tribunal to regard this evidence as falling short of being evidence of a pattern of state endorsed or tolerated persecution of persons who expose criminal conduct by politicians or parliamentarians. The assessment which the Tribunal made as to the proper characterisation of that evidence was within the preserve of the Tribunal to make. The appellants’ contentions do not reveal jurisdictional error by the Tribunal. The Federal Magistrate did not err.
35 I record that during oral submissions the second appellant, on behalf of the appellants, contended that the Tribunal had demonstrated apprehended bias. The appellants referred to SZEOQ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1171. The appellants did not raise before the Federal Magistrate the issue of apprehended bias by the Tribunal. There was no ground of appeal founded on apprehended bias. The making of an allegation of bias, whether actual or apprehended, is a serious matter and the allegation must be fully particularised and evidenced. The appellants did not put into evidence the transcript of the proceedings. The Tribunal’s reasons do not evidence circumstances of apprehended bias. The SZEOQ decision has no application to the facts (so far as they are in evidence) in this case. The contention has no prospects of success and I refuse the appellants leave to raise this ground as a ground of appeal.
36 The appellants’ appeal is dismissed with costs.
Associate:
Dated: 23 February
2007
|
|
|
|
|
|
|
Counsel for the First Respondent:
|
|
|
|
|
|
Solicitor for the
First Respondent: |
|
|
|
|
|
Date of Hearing:
|
|
|
|
|
|
Date of Judgment:
|
23 February 2007
|
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/186.html