FEDERAL COURT OF AUSTRALIA SZARR v Minister for Immigration and Citizenship [2007] FCA 682 SZARR v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR NSD 376 OF 2007 RARES J 2 MAY 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 376 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZARR Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: RARES J DATE OF ORDER: 2 MAY 2007 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal is dismissed with 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 376 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZARR Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: RARES J DATE: 2 MAY 2007 PLACE: SYDNEY REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This is an appeal from a decision of the Federal Magistrates Court in SZARR v Minister for Immigration [2007] FMCA 2, dismissing the appellant's application for constitutional writ relief against a decision of the Refugee Review Tribunal made on 25 November 2004 and handed down on 17 December 2004. 2 The appellant is a Russian citizen. The tribunal accepted a significant number of his claims which gave rise to his ultimate claim for a protection visa. The tribunal accepted that the appellant's father had been killed by a drunken driver in 1981 when he was a young boy and a citizen of the former Union of Soviet Socialist Republics. The tribunal accepted that the driver of the vehicle escaped sentence because he was the son of an official of the Communist Party which was then the governing party of the Soviet Union. It also accepted that the appellant had been expelled from college in 1986 for organising a protest, again, during the currency of the Soviet Regime. 3 The tribunal accepted that after the State of Russia had been formed the appellant had been one of the organisers of a demonstration in May 1994 and had been taken into custody for a day by the authorities because the protest or demonstration had not been authorised. It also accepted that he was not charged with any offence as a result of the incident. 4 The tribunal accepted that about two weeks after the demonstration the appellant had been attacked by two assailants outside the shop where he worked as a security guard and that one of the assailants was a captain in the Federal Security Service who stabbed him twice. The injuries suffered by the appellant in this attack were substantial and the tribunal accepted that it had been prompted by the appellant's involvement in political activity. 5 The tribunal found that the captain must have been acting on behalf of the city administration when he attacked the appellant. It also accepted that the captain had been prosecuted and sentenced to 10 years' imprisonment for his part in the attack, finding that this legal consequence would not have occurred had the captain been carrying out the orders of the Federal Security Service when he attacked the appellant. The tribunal made a further finding that this indicated that the Russian authorities were willing and able to protect the appellant from this sort of physical attack. 6 After the attack, between 1994 and 2001, when he left Russia, nothing further in terms of assault or threatening behaviour was found by the tribunal to have happened to the appellant. It found that his actions suggested that he did not feel threatened at all because he had stayed in the same job working as a security guard at the shop until 1998 and continued living at the same address making no attempt to conceal himself. After that, according to the findings of the tribunal, the appellant became involved in selling packaging materials to various enterprises around the city, earning more money than he had in the security guard position. 7 The tribunal found that the captain had been released after about two years in prison and was reinstated to his former position in the Federal Security Service. But the tribunal found that that did not, in itself, indicate that the Russian Government, or the Federal Security Service, condoned or instigated his actions because, it said, if that had been the case the captain would not have been prosecuted and sentenced to 10 years in prison at all. 8 The tribunal did not accept the appellant's claim that the Russian authorities would be unwilling to protect him were the captain to attempt to take revenge on him for his part in the prosecution and imprisonment that he had undergone. Curiously, the tribunal also accepted that, when the appellant tried to lodge a statement with the police in relation to an encounter he had with the captain following the latter's release from prison, the police refused to take the statement, claiming that the appellant was suffering from a persecution complex and telling him that he could be charged for slandering a Federal Security Service officer. 9 The tribunal did not accept that it could be concluded from the actions of those individual police officers to whom the appellant had made the latest complaint that he would not be protected from any further criminal attack by the captain were he to return now to Russia or in the reasonably foreseeable future. Again, the tribunal reasoned, if that were that the case then the captain would never have been prosecuted and imprisoned at all. 10 Curious as the findings are (that a senior police officer could be reinstated after he had been prosecuted and imprisoned for carrying out an attack, that, on its kindest characterisation, could only be seen as a vicious criminal assault and may have been an attempted murder of the appellant), I think the tribunal was entitled in the exercise of its functions under the Migration Act 1958 (Cth) to conclude as it did. Despite this, one might understand that the appellant could feel some reservations about that reasoning process. 11 In the event, the tribunal did not accept that there was a reasonable chance that the appellant would be persecuted for reasons of his political opinion if he returned to his home in Russia now or in the reasonable foreseeable future. And it did not accept that there was a real chance that the appellant would come to the attention of the Federal Security Service, as he claimed in the course of the hearing before the tribunal, unless he himself volunteered his presence when he returned. Nor did the tribunal accept that the appellant would be accused of any other activity while he had been in Australia if he returned to Russia. 12 The tribunal formed the view, on the independent country information available to it at the time it made its decision, that it was not prepared to accept that Russia was sliding back towards Stalinist totalitarianism. It found that there was no real chance that the appellant would be persecuted for expressing the sort of views which he had expressed to the tribunal during the course of the hearing were he to return to his homeland. 13 The tribunal also rejected the appellant's claims that he may have been perceived to have been Jewish and liable to persecution were he to return to Russia on account of that or on account of his claim to have been perceived as being a member of a sexual minority. 14 The trial judge found that one of the appellant's real complaints was as to the merits of the tribunal's ultimate conclusion. He held that this was not a matter which was open to remedy in the Court. I see no error in his Honour's conclusion on that issue. Indeed, before me, the appellant again argued that, in effect, the merits of the tribunal's decision ought to be overturned by the Court. The Court's function is to determine whether or not the tribunal acted in accordance with law or committed a jurisdictional error so as to enliven the Court's power to grant constitutional writ relief. His Honour found that the tribunal did not make any error in identifying the claim of fear of persecution based on his political activities which the appellant put forward as the basis for its consideration. He found that there was no jurisdictional error evident in the tribunal's decision. 15 In his notice of appeal the appellant has raised three matters: (1) the tribunal failed to comply with its obligations under s 424A of the Migration Act 1958 (Cth); (2) the tribunal ignored relevant considerations or took into account irrelevant considerations; and (3) the tribunal's decision was illogical and inconsistent with available information. 16 The appellant was unable to articulate or elaborate upon any of these bases when he put submissions to me today. Rather, he concentrated on factual errors and the fact that the tribunal ultimately did not accept his case. He said that the tribunal characterised his role in the demonstration which led to the captain's attack as being only one of being a participant rather than an organiser. However, the tribunal expressly said that it accepted that the appellant was one of the organisers of the demonstration involving 150 to 160 people in May 1994. There is no substance in this complaint. 17 Having read for myself the decision of the tribunal and having invited counsel for the Minister to identify any basis upon which an argument could be raised under s 424A of the Act, I am unable to see any potential source of error by the tribunal in its approach to, or use of, information such as would involve a failure to observe the requirements of the section. In my opinion this ground fails. 18 In effect, the second and third grounds are really invitations to the Court to engage in a merits review. It was for the tribunal to select and determine the facts which it accepted and to give such weight to those facts as it considered appropriate. I am unable to see that there was any illogicality or other jurisdictional error in the way in which the tribunal approached its function of conducting the review of the Minister's delegate's decision to refuse to grant the appellant a protection visa. 19 In essence, the tribunal formed the view that, while the appellant had been the subject of a vicious and potentially life-threatening attack by the captain because of his participation in political activity against the local city government, he was not at risk of persecution for a Convention reason at the time the tribunal decided his claim. 20 I do not see any basis upon which it could be said that the tribunal fell into a jurisdictional error. The appeal fails. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 8 May 2007 Appellant: In person Counsel for the Respondent: GR Kennett Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 2 May 2007 Date of Judgment: 2 May 2007