Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
SZARU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1382 SZARU v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS NSD 1315 of 2004 BRANSON J 19 OCTOBER 2004 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NSD 1315 of 2004
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZARU
APPELLANT
AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT
JUDGE: BRANSON J
DATE OF ORDER: 19 OCTOBER 2004
WHERE MADE: SYDNEY
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant pay the respondent's costs fixed in the sum of $2000.00
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NSD 1315 of 2004
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZARU
APPELLANT
AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT
JUDGE: BRANSON J
DATE: 19 OCTOBER 2004
PLACE: SYDNEY
REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Federal Magistrates Court, constituted by Driver FM. On 19 August 2004, his Honour dismissed with costs an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal'). 2 Attached to the appellant's original application for a protection visa was a statement in English. An accredited translator for the Russian and English languages had certified that he had truthfully and faithfully translated that statement from a document given to him in Russian. The statement was made by the appellant and is dated 22 March 2001. 3 The statement asserts that the appellant was born in 1959 in the town of Kremenets in the Ukraine, where he has lived until recently. The statement gives the following explanation of why the appellant does not want to go back to the Ukraine: 'After graduating from Lvov University in 1984 I started to work in Kremenets District Executive Committee. In 1985 I became a member of a radical party, the Ukrainian National Assembly – Ukrainian National Self‑defence. (UNA‑UNSO). It was the time when persecution by the authorities began. In 1987 I was sacked for my political views. All the subsequent years I felt constant pressure from the authorities. I was detained by police on many occasions for organising public meetings and spreading leaflets which called for struggle against the corrupted pro‑communist authorities. In 1999, during picketing of the Ukrainian Supreme Soviet in Kiev, I and many members of our delegation were beaten up and detained for 10 days by the Kiev police. Over the last half a year I have been an organiser of the regional campaign Ukraine without Kuchma which has been carried out in all the regions of the Ukraine. In December 2000 the bus in which we were travelling to Kiev in order to take part in the All‑Ukrainian Protest Campaign was stopped by police and security agents. We were kept for 3 days in a police station in Zhitomir where we were subjected to endless interrogations and threats. Over the last month I have received constant telephone calls from unknown persons who threatened me: "People like you don't live long". In the streets I have been constantly stopped by the traffic police and fined without any grounds. Knowing about methods which the Ukrainian authorities use, I constantly feel threat to my health and life. I do not want to return to the Ukraine.' 4 A delegate of the respondent was satisfied that the appellant is not a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (together 'the Convention'), (see s 36 of the Migration Act 1958 (Cth) ('the Act')). The delegate was particularly influenced by the appellant's failure to provide any supporting details of his claims. The delegate identified the absence of details such as the dates and place of his detention and the nature of the threats made to him. 5 The appellant sought review by the Tribunal of the decision of the delegate. By his application for review he complained first, that the decision‑maker failed to apply correctly the Convention definition and secondly, that he did not have an opportunity to comment on material on which the decision-maker relied. 6 The Tribunal, by a letter dated 20 January 2003, sent the appellant a hearing invitation. The letter advised the appellant that the Tribunal had considered the material before it in relation to his application but was unable to make a decision in his favour on that material alone. The letter contained the following note under the heading 'Important information about your hearing': 'The Tribunal will only change this hearing date for good reasons. If you think you might be unable to attend the hearing you must contact the Tribunal immediately. If you do not attend the hearing and the Tribunal does not postpone the hearing it can make a decision on your case without further notice.'
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