SZDMV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1328

FEDERAL COURT OF AUSTRALIA

SZDMV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1328

MIGRATION – no point of principle SZDMV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL NSD 938 OF 2005 MOORE J 23 SEPTEMBER 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 938 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZDMV

FIRST APPELLANT

SZDMW

SECOND APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: MOORE J

DATE OF ORDER: 23 SEPTEMBER 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellants pay the first 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 938 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZDMV

FIRST APPELLANT

SZDMW

SECOND APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: MOORE J

DATE: 23 SEPTEMBER 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal against a judgment of a Federal Magistrate of 23 May 2005 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 26 March 2002. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to refuge to grant a protection visas to the appellants. 2 The appellants are husband and wife. It is convenient to refer only to the circumstances of the husband appellant, who I will call the appellant. The appellant claimed to be a Russian speaking Ukrainian national of Armenian extraction. The essence of his claim to fear persecution was that he had, at various times since 1999, spoken out publicly against the Ukrainian government and its nationalist ideas. He claimed to have been beaten and hospitalised, threatened, and his car firebombed. He claimed to have lost his job. The Tribunal did not accept that the events described by the appellant, had, in fact, occurred. The Tribunal did so having regard to "independent evidence" concerning the circumstances in the Ukraine. 3 The notice of appeal raised, in substance, two grounds. The first was that the Federal Magistrate did not consider submissions filed and served by the appellants on 14 April 2005 in the proceedings in the Federal Magistrates Court. The second was that the Federal Magistrate had erred in not concluding that the Tribunal had fallen into jurisdictional error by failing to assess the appellant's wife's case having regard to her Jewish ethnicity and in failing to assess his case having regard to his Armenian ethnicity. 4 As to the first ground in the notice of appeal, it is clear that the Federal Magistrate did consider the submissions filed on 14 April 2005. First, the submissions are referred to in his Honour's reasons for judgment at [8] and [35]. His Honour stated he had considered all that had been put to him by the appellants in writing and orally. Secondly, the various matters referred to in the submissions were dealt with, in one way or another, by his Honour in his reasons for judgment. The only reservation I had at the hearing of this appeal was whether the Federal Magistrate had dealt with a submission in the submissions of 14 April 2005 (at [12] and [13]) to the effect that the Tribunal had used, quite selectively, information in the "independent evidence". The submission had been that the Tribunal ignored parts of the "independent evidence" supportive of the appellant's claims, namely a statement that the Ukrainian National Assembly was active in all regions of the Ukraine and advocated violence and ethnic intolerance. The appellants submissions of 14 April 2005 (at [12]) contained what appears to be a quotation from an independent report on which the Tribunal based its decision. At the hearing I unsuccessfully sought to ascertain from the appellant where the quotation was to be found in the material before the Tribunal. I asked the appellant to identify, in writing later that day, where in the material before the Tribunal the quotation was found. While an extract from a document was forwarded to my Chambers, it was not the material which, having regard to the appeal book, was apparently before the Tribunal. Nor could I find the quotation in the material contained in the appeal book. This submission (at [12] of the appellants submissions of 14 April 2005) was sufficiently dealt with by the Federal Magistrate at [30] and [31] of his Honour's reasons for judgment. 5 As to the second ground of appeal, the Tribunal did address the appellant's ethnicity. This was noted by his Honour at [15] and dealt with at [22]. In my opinion, the approach of the Federal Magistrate and his Honour's conclusion does not reveal appealable error. Further, it is not apparent to me that the appellant's wife's Jewish ethnicity and the way the Tribunal and dealt with it (or failed to deal with it), was raised in the proceedings before the Federal Magistrate. 6 The appeal should be dismissed with costs. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.