FEDERAL COURT OF AUSTRALIA SZAXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 451 MIGRATION – protection visa application – appellant claims to fear persecution in Ukraine by reason of her Jewish ethnicity – Tribunal emphasised that the appellant did not appear Jewish – danger in attributing particular characteristics to all members of an ethnic group –appeal dismissed for non-appearance Federal Court of Australia Act 1976 (Cth) s 25(2B)(bb)(ii) Migration Act 1958 (Cth) SZAXC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 233 of 2005 SACKVILLE J SYDNEY 18 APRIL 2005 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 233 of 2005 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZAXC APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: SACKVILLE J DATE OF ORDER: 18 APRIL 2005 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 233 of 2005 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZAXC APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: SACKVILLE J DATE: 18 APRIL 2005 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an appeal from a judgment of the Federal Magistrates Court handed down on 28 January 2005: [2005] FMCA 36. The learned Magistrate dismissed an application for review of a decision of the Refugee Review Tribunal ('RRT') handed down on 3 June 2003. The RRT had affirmed a decision of a delegate of the respondent ('the Minister') made on 2 August 2000 to refuse to grant the appellant a protection (class XA) visa. 2 The appellant has neither filed submissions in support of her appeal nor appeared at the hearing. Ms Clegg, who appeared for the Minister, has applied for an order dismissing the appeal by reason of the appellant's non-appearance, pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) ('Federal Court Act'). the appellant's claims 3 The appellant is a citizen of Ukraine, born in 1971. She arrived in Australia on a visitor's visa on 27 May 2000. On 6 July 2000, she lodged an application for a protection visa under the Migration Act 1958 (Cth) ('Migration Act'). 4 The appellant claimed that she had left Ukraine because, although her religion was Christian, her 'ethnic group' was Jewish and she feared persecution by reason of her ethnicity. 5 The appellant set out her claims in a declaration attached to her application for a protection visa, in a short statement attached to her application to the RRT and in oral evidence she gave at a hearing before the RRT on 23 April 2003. 6 In her written statements, the appellant claimed that her father was Jewish and her mother was Ukrainian (she, like the RRT, appears to have regarded the two categories as mutually exclusive). She said that she had been a victim of 'permanent abuse and attack caused by anti-Semitism' throughout her life. Moreover, she claimed that attitudes towards Jews within Ukraine had become worse day by day. It was in this atmosphere of 'complete intolerance towards Jews [that her] life [had] become unbearable'. 7 The appellant claimed that she had been attacked on many occasions by Ukrainian ultra-nationalist organisations like the Ukrainian National Self Defence, Ukrainian National Assembly ('UNA-UNSO'), which has strong anti-Semitic attitudes. She said that her home had been vandalised on many occasions and she had been beaten near her home. She also claimed to have also received many verbal threats. She said that, since the Ukrainian authorities did not take her complaints seriously, the only way for her to avoid 'inevitable death' was to flee from Ukraine. She could not go to Israel because under Jewish law she would not be regarded as Jewish, since her mother was not Jewish. 8 At the oral hearing before the RRT, the appellant made a number of specific claims. It is not necessary for present purposes to detail those claims. The RRT's Reasons 9 The RRT recorded in its decision that it had asked the appellant to explain how anyone looking at her would know that her father was Jewish. In response, she had claimed that people knew she was Jewish because it had been written on her birth certificate, although she was unable to provide a copy of that document to the RRT. 10 The RRT also noted that it had put to the appellant the substance of independent country information which suggested that, although the UNA-UNSO had adopted aggressive policies towards minorities in the early to mid-1990s, it had since paid little attention to Jewish people in Ukraine. The appellant responded that, while there had been reports in Ukraine suggesting a decrease in anti-Semitic activity and also indicating that the government was taking actions against anti-Semitic acts, 'in real life it was different'. 11 In its reasons, the RRT set out extracts from country reports in some considerable detail. These reports suggested that, although 'acts of societal anti-Semitism' continued to occur, they had declined in number. The country information also indicated that ultra-nationalistic groups had changed their attitudes towards Jews within the so-called 'socialisation of national minorities' principle. 12 The RRT did not accept that the appellant had been persecuted because of her father's nationality or religion. It said this: 'The [appellant] did not look Jewish and she was not familiar with nor did she celebrate Jewish traditions or holidays. On the other hand, she was very familiar with and celebrated Ukrainian customs and traditions and she claimed she had many Christian friends from both the Ukrainian Orthodox Church and the Greek [Orthodox] Catholic Church… Even if the [RRT] accepted that some people in her city were aware that her father was a Jew the [RRT] does not accept that the [appellant] was physically attacked by members of [the UNA-UNSO] in January 1998 and January 2000 or that her house was vandalised because her father was a Jew…' 13 The RRT gave a number of other reasons for this last finding, including material in the country information. After reviewing the country information the RRT made the following finding: 'Given the above independent information that indicates that anti-Semitism is a decreasing problem in Ukraine and given that since the mid 1990's the [UNA-UNSO] has paid little attention to people in Ukraine and given that the [appellant] is not of Jewish appearance and had embraced the culture and traditions of her husband and his family who are Ukrainian the [RRT] does not accept that the [appellant] was physically attacked by members of [the] UNA-UNSO in January 1998 and January 2000 or that her house was vandalised in November 1998 and December 1999.' 14 The RRT also rejected the appellant's claims that she had suffered verbal abuse because her father was Jewish: 'The [RRT] does not accept that the [appellant] suffered verbal abuse from people in the street as the [appellant] herself was not of Jewish appearance. Even if the [RRT] accepted that the [appellant] was subjected to verbal abuse by people who were aware that her father was a Jew the [RRT] finds that any verbal abuse the [appellant] suffered was not sufficiently serious to amount to persecution in a Convention sense.' 15 The RRT concluded as follows: 'Taking into account the above independent evidence together with the fact that the [appellant] is not of Jewish appearance[,] has been married to a Ukrainian for fourteen years and has embraced Ukrainian culture the [RRT] is satisfied that there is not a real chance that the [appellant] will be persecuted for reasons of her ethnicity if she returns to the Ukraine within the foreseeable future.' the magistrates court 16 The Magistrates Court rejected the application for judicial review made by the appellant, concluding that the RRT had not committed jurisdictional error. the appeal 17 The notice of appeal filed by the appellant identifies one ground only, namely that the Magistrates Court had 'erred in the decision that the [appellant] was not persecuted in Ukraine'. The Minister's written submissions point out that the sole ground of appeal has not been particularised and in substance does no more than re-agitate the merits of the RRT's decision. According to Ms Clegg, the RRT's decision was not affected by any jurisdictional error and there was no appellable error in the decision of the Magistrates Court. 18 Subject to one matter, it seems to me that the Minister's submissions on the appeal are correct. The matter that concerns me, however, is the RRT's repeated reference to the 'fact' that the appellant is not of Jewish appearance. As I have noted, the RRT asked the appellant at the hearing to explain how anyone looking at her would know that her father was Jewish. In the section headed 'Findings and Reasons', the RRT referred on no less than four separate occasions to the fact that the appellant is not of Jewish appearance. Plainly this finding played some part in the RRT's findings. 19 To be fair to the RRT, it apparently placed emphasis on the appellant's non-Jewish 'appearance' because it had difficulty in accepting that someone who had been raised as a Christian, married a Christian and ensured that her children had maintained contact with the Church, would be identified as Jewish. The troubling feature of the reasoning, however, is that it appears to assume that there is a distinctive 'Jewish appearance' that distinguishes Jews from all other people, including their fellow Ukrainians. The basis for the RRT member making such an implicit finding is not apparent. Is it based upon the member's own experience? If so, what could that experience be? Is the implicit finding based on an examination of a body of literature? If so, what could that literature be? 20 There is a very great danger in reasoning of this kind, since it appears to rest on attributing particular characteristics to all members of an ethnic group. The RRT member has not attributed social or personality characteristics to Jewish people as such, but she does seem to have proceeded on the basis that Jews in Ukraine have a particular physical appearance that marks them off from all others. Yet the RRT member does not identify the physical characteristics she has in mind. Any attempt to do so might well demonstrate the difficulties with the RRT's approach. 21 Of course, defects in the reasoning for the RRT – even egregious defects – do not necessarily constitute a jurisdictional error. The appellant has chosen not to appear on the appeal to argue her case. She has not communicated with the Court nor with the Minister's representatives. 22 By not appearing, the appellant has elected not to pursue the appeal. In these circumstances, even though the appellant may have an arguable case that the RRT committed a jurisdictional error (albeit not an argument advanced to the Magistrate), the appropriate course is to dismiss the appeal pursuant to s 25(2B)(bb)(ii) of the Federal Court Act. For the reasons I have given, the dismissal of the appeal should not be interpreted as an endorsement of all aspects of the RRT's reasoning. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville. Associate: Dated: 19 April 2005 The Appellant did not appear. Counsel for the Respondent: L Clegg Solicitor for the Respondent: Clayton Utz Date of Hearing: 18 April 2005 Date of Judgment: 18 April 2005