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Federal Court of Australia |
Last Updated: 16 May 2007
FEDERAL COURT OF AUSTRALIA
SZFOG v Minister for Immigration & Citizenship [2007] FCA 739
SZFOG
v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW
TRIBUNAL
NSD 140 OF 2007
DOWSETT
J
30 APRIL 2007
SYDNEY
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AND:
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THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant pay the First Respondent’s costs of the appeal
Note: Settlement
and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
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BETWEEN:
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SZFOG
Appellant |
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AND:
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MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent |
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JUDGE:
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DOWSETT J
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DATE:
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30 APRIL 2007
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PLACE:
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SYDNEY
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REASONS FOR JUDGMENT
1 In proceedings before a federal magistrate the appellant sought review of a decision of the Refugee Review Tribunal (the "Tribunal") alleging jurisdictional error. The magistrate found that there was no jurisdictional error and dismissed the application. This is an appeal from that decision, the grounds being that:
• the magistrate should have concluded that the Refugee Review Tribunal had ignored relevant material, relied upon irrelevant material and made erroneous findings and conclusions; and
• the magistrate denied the appellant the opportunity to comment on issues addressed during the course of the hearing and to provide further relevant material.
2 The appellant was notified of today’s hearing by letter dated 29 March 2007. When he commenced his submissions this morning it became clear that he proposed to argue that before the magistrate, he was not allowed to address fully the relevant issues. This seemed unlikely to me but in any event, I pointed out to him that he had provided no evidence upon which such an argument could be based. I have not been provided with a copy of the transcript, nor is there any affidavit as to the proceedings. The appellant asserted that he had, some time ago, attempted to obtain a transcript, had paid for it but had not received it. I adjourned to allow him the opportunity to visit the agency from which he said he had ordered the transcript to find out whether it was available. It seems that he went to an office called the Consumer Trade and Tenancy Tribunal in Castlereagh Street. Obviously, that agency has nothing to do with obtaining a transcript. The appellant asserted that he had been directed to that address by somebody on level 16 of this building. That also seems unlikely. If such an event occurred, it must have been the result of some sort of misunderstanding. In any event the appellant has known for some time of the hearing date today but apparently took no step to pursue his request.
3 Notwithstanding my doubts as to the appellant’s claims concerning the conduct of the magistrate, and notwithstanding his failure to put material before me, the allegation of a denial of procedural fairness would normally call for investigation. I would not generally let procedural matters stand in the way of such an investigation. With that in mind I asked the appellant to identify the matters which he wished to put before the magistrate in connection, with which matters he had not been heard. He said that he had not had an opportunity to explain to the magistrate that his claim to fear persecution for a Convention reason was not based upon his membership of a political party, but upon certain dealings which he had with the Russian security service. Those dealings were, to some extent, connected with his membership of a political party. He asserted that the Tribunal had failed to understand his point.
4 It is quite clear from the magistrate’s reasons that he fully understood the point. He concluded that the Tribunal had also understood it. It seems likely that any belief on the appellant’s part that he was denied an opportunity to put his case may have reflected a refusal by the magistrate to allow him to put the point as repetitively as he would have liked. Whether that be so or not, it is clear that the magistrate understood the point, and that the appellant was not denied an opportunity to make it.
5 In those circumstances I refused an adjournment which the appellant had sought in order to obtain the transcript. It would have served no purpose. I invited the appellant to make his submissions. The point to which I have referred was his major concern and, as I have said, it seems to be without foundation.
6 Two other points were made. One concerned a distinction which appears in the magistrate’s decision between the likelihood that people in Russia, who are at a high level of political activity, will be persecuted. The other point concerned a general statement about human rights abuse in Russia. Before considering these grounds in more detail, it is appropriate that I say something about the appellant and about the Tribunal’s decision.
7 The appellant is a citizen of Russia who arrived in Australia as a visitor in April 2000. He applied for a protection visa on 11 May 2000. The Tribunal’s decision was dated 6 September 2002. It is not necessary that I go into the reasons for the delay in prosecution of these proceedings.
8 The appellant told the Tribunal that he was born in the Ukraine but had lived in Russia for some time prior to his coming to Australia. For about fifteen years from 1985, he worked as a masseur and as a hockey coach. He claimed to have joined the Russian Democratic Party in 1988. In that capacity, he addressed groups such as the Union of Soldiers Mothers’ Committee urging legal, rather than illegal, means of campaigning for change in Russia. His party had some connection with trade unions, and so the appellant came into contact with them. He was recruited to speak to, or advise at, a particular factory which ostensibly produced clocks and watches but was, in reality, producing military goods. It seems that the Russian security service, the FSB, became aware of his activity and sought to recruit him to spy on activities either in the Russian Democratic Party or in the factory or perhaps both. The appellant said that he agreed to provide information but in fact provided information of little or no value. He was subsequently accused of having failed to honour his undertaking. He was assaulted and forced to sign a document of some sort. He again agreed to act as an agent for the security service but instead of doing so, arranged a tourist visa and came to Australia.
9 He fears retaliation by the security service because of his refusal to cooperate. He is at pains to point out that he does not fear persecution for reason of his membership of a political party, but for his refusal to co-operate. It is clear that the Tribunal understood this. The basis of the Tribunal’s decision was that on his evidence, it was not satisfied that he had been an active member of the party or that he had been recruited as an agent in the way that he claimed. Thus the Tribunal found at p 22 of its reasons:
‘Having regard to the Applicant’s level of knowledge of Democratic Russia, I do not accept that he was involved in this Party as he has claimed, even at the very low level and for the very brief period of time he claims to have been involved.’
10 At p 23 the Tribunal continued:
‘I likewise do not accept that the Applicant would have been called upon to provide advice to workers at what was ostensibly a clock and watch factory but which in reality was a military factory producing detonators with watch mechanisms in them. The Applicant does not claim that he was ever involved in organising a factory workers’ strike himself and his only involvement in such activities appears to have been through his membership of Democratic Russia where he was not one of the leaders, even in his own region.
I do not accept that the Applicant was pressured by the FSB to provide information with regard to the activities of Democratic Russia in his region or with regard to what was happening at the military factory producing detonators with watch mechanisms in them.’
11 The Tribunal rejected his claim that he was detained for three days or beaten whilst in detention.
12 The magistrate observed at [6] of his reasons:
‘The applicant made it clear to the Tribunal and the Tribunal so reported that he was not claiming to have a fear of the FSB because of his membership of the Democratic Party. He had a fear of the FSB because it had already dealt with him for providing incorrect information and he felt that this would reoccur.’
13 It is clear that the primary basis of the appellant’s concern about the proceedings in the Tribunal and before the magistrate is not justified. As to his complaint about the use of the information which suggested that only people at relatively high levels in political organisations were subjected to persecution, he seems to have either misunderstood the nature of the information or the use made of it. As I understand it the Tribunal understood it as indicating that it was unlikely that a person would be persecuted for low level political activity. That seems to have been a reasonable view of the evidence available to it. As to the generalized allegation of violation of human rights in Russia, the fact that such violations occurred was recognised. That did not take the appellant’s case anywhere.
14 In the circumstances I see no valid criticism of the magistrate’s decision. It follows that the appeal should be dismissed. I order that the appellant pay the first respondent’s costs of the appeal.
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Counsel for the First Respondent:
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Solicitor for the First Respondent:
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Counsel for the Second Respondent:
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The Second Respondent did not appear
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Date of Hearing:
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Date of Judgment:
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/739.html