SZHCN v Minister for Immigration and Multicultural Affairs

Background to present appeal from Federal Magistrates Court - outcome of the preceding Tribunal proceedings 1 This is an appeal from the judgment of Federal Magistrate Smith FM delivered on 6 April 2006,whereby his Honour dismissed an application for judicial review of the decision of the Refugee Review Tribunal ('the Tribunal') made adversely to the appellant on 20 July 2005 and handed down on 16 August 2005. That application for judicial review was brought pursuant to s 483A of the Migration Act 1958 (Cth), which has been subsequently repealed; however the repeal did not affect the continuance of the proceedings before the Federal Magistrates Court. The Tribunal affirmed the decision of a delegate of the respondent Minister made earlier on 5 March 2005 to refuse the grant of a protection visa to the appellant. The circumstances placed before the Tribunal were somewhat complex, emerging as they did from a confusing picture presented by the appellant's application for review to the Tribunal, and subsequently in the course of his appeals to the Federal Magistrates Court and thereafter to this Court. 2 At the time of his arrival in Australia on 30 August 2004 on a temporary business visa issued to him in Moscow, the appellant was a citizen of Armenia. He made application for a protection visa on 29 September 2004 with the assistanceof a migration agent, who has since rendered assistance to the appellant in the context of the legal processes which he has pursued. That application stated that he had university qualifications in Armenian literature, and further that his employment was that of a businessman. The appellant claimed to have had a well-founded fear of persecution for his political opinion, and in that regard to have been persecuted by the Armenian authorities upon the basis of his active membership of the People's Party of Armenia (PPA) since 1999, his membership activities having involved financial support and distributions of political material. An aspect of his persecution had involved his arrest and threats of destruction of his business operation, said to have comprised 'retail shops'. The Tribunal described the PPA as both a large and lawful party in Armenia, some of whose members had been detained in April 2004 during protests, and also assaulted by members of the security forces. His PPA membership card tendered to the Tribunal was said to have consisted of an uncertified photocopy. 3 The appellant's claims extended to governmental arrest, detention and severe verbal and physical abuse in Armenia, and subjection to a politically motivated tax-audit conducted in relation to his business activities, being an audit for which he was ordered to provide to the authorities all of his financial information within a period of one week. His ultimate release from detention was said to have been made subject to conditions as to not leaving his city of residence, and as to provision of a bond provided by his relatives. He further claimed to have been 'charged in a court' and that in the upshot he was left with no alternative but to 'give away his businesses and go into hiding' in a relative's home for about two months or until he had completed the visa formalities for his departure to Australia. His visa was apparently issued by the Australian Embassy in Moscow. The PPA was in opposition in Armenia before and after elections in 2003 and 2004, being elections which were asserted by the appellant to have been flawed, as was apparently confirmed by country information. 4 Notwithstanding what I have summarised from documentary material present to Australian authorities upon his arrival in Australia, the appellant stated in his application for an Australian visa lodged in Moscow that he had been the 'Head of the Biology Department at the Vanevan University'. The Tribunal questioned the appellant's migration agent in that regard by its letter of 14 June 2005. The Tribunal observed that '[t]he 16th International Congress of Eye Research's Conference Co-ordinator wrote to him at the university on 5 August 2004, and the head of the Vanevan Institute wrote a letter on his behalf to the Australian Embassy in Moscow dated 11 August 2004, saying he had been head of department since 2000…'. 5 In the context of its comprehensive account of the information provided by the appellant, the Tribunal made the following findings: (i) it was likely that the appellant was employed at the Vanevan Institute; (ii) there was 'considerable doubt… that he was in fact the owner of several businesses rather than an employee of an academic institution', and therefore whether '… those businesses were the target of a politically motivated tax audit, or that [the appellant] was "in hiding" as a result…'; (iii) '… if [the appellant] was being investigated by the tax office last year, I cannot be satisfied that the real reason for that was his political opinion'. 6 The Tribunal did not accept in the course of its reasoning the appellant's claims to have been a member of the PPA, and to have been involved in political demonstrations in Armenia, and to have been the target of harm directed by the authorities in Armenia because of political opinions imputed to him by the authorities in Armenia. The appellant's evidence regarding his PPA political membership was considered by the Tribunal to have been at least vague. The Tribunal further considered that it would have been reasonable for him to have kept receipts for his asserted financial contributions to the PPA, had his claims to membership been sound, but which the appellant had not been able to produce. The Tribunal observed that '[t]he only documentary corroboration of the applicant… was a facsimile transmission copy of what was claimed to be a membership card for the political party which the applicant claimed to support.' The appellant seemingly sought to undermine the Tribunal's decision in the course of his subsequent proceedings, as may conceivably be seen in the course of my review of this somewhat complex litigation, upon the footing of a denial on his part of having been employed as head officer of the Biology Department at the Vanevan University, and of the authenticity of documentation supplied to the Australian Embassy in Moscow. 7 The Tribunal took into account, for the purpose of decision-making, the independent country information, which indicated that exit permits may be denied to people involved in pending court cases, and inferred that since the appellant was issued with an exit permit it was doubtful the Armenian authorities were expecting to lay any charges against him when he left Armenia. In the result, the Tribunal was not satisfied that the appellant faced in reality circumstances involving persecution for any political opinion imputed to him, and affirmed accordingly the Ministerial decision not to grant him a protection visa.