Case: SZARH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 615
Outcome: referred to
The appellant filed on 2 March 2004 an application in the Federal Magistrates Court for judicial review of the Tribunal's decision. The appellant filed an amended application on 19 October 2004 which raised various grounds of review. The appellant claimed that the Tribunal overlooked some critical points of her case and did not address all the relevant issues she had raised, including whether she was considered a 'traitor' because of the anti-governmental views of her family. The appellant also claimed the Tribunal: failed to ask relevant questions, failed to determine whether the appellant was subject to persecution because of her imputed political opinion, failed to determine the 'particular social group' the applicant belonged to, and failed to enquire as to whether the appellant's past or future conduct would amount to persecution. The appellant also referred the Court below to the decision of SZARH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 615 , which was said by the appellant to raise similar issues to her proceedings currently before the Court. 10 The appellant's application below was heard on 22 May 2006, and a further submission was filed on 2 June 2006. Although the appellant did not seek leave to raise that further submission, the Federal Magistrate decided to consider the matters the subject thereof. That submission dealt in substance with the implications of the filing out of time of her application for review, and referred the Court below to judicial precedents purportedly supportive of the appellant's claims in that regard. 11 The Federal Magistrate was satisfied the appellant had established a reasonable excuse for the delay in bringing the application for review. In considering the appellant's substantive claims, the Federal Magistrate found that the Tribunal did consider the aspects of the appellant's claims and that there was no evidence that any claim to the effect that the appellant was a 'traitor' was ever made to the Tribunal. The Federal Magistrate considered the appellant's contention that the Tribunal did not properly consider her claim to be a member of a particular social group. His Honour found this ground could not rightly stand, pointing out at [31] as follows: "It is well established that a social group cannot be constituted by victims of crime, let alone potential victims of crime, which appears to be the applicant's claim. In any event, the nature of the particular social group claimed by the applicant in the submission was not put to the Tribunal, on the evidence before me". 12 In line however with what I have observed at [8] above, the Federal Magistrate found the Tribunal did adequately address the issue of effectiveness of state protection in the Ukraine of persons such as the appellant. In relation to the authorities cited by the appellant, his Honour distinguished the same on the facts. The Federal Magistrate found that no case for jurisdictional error was made out and dismissed the application. 13 The Federal Magistrate was also of the opinion that there existed strong compassionate reasons based upon and referrable to humanitarian grounds, which relate largely to the circumstances of the appellant's age, single status and family circumstances. 14 The notice of appeal filed in the Federal Court raised the following grounds: that the Tribunal failed to assess the appellant's 'claims against proper information' and that the Federal Magistrate and the Tribunal misunderstood the appellant's particular social group. 15 The appellant, by way of submissions dated 10 November 2006, submitted that the Tribunal assessed her claims against 'all women advanced in years and living alone in Ukraine'. The appellant contended that the Tribunal should have particularised her social group as 'aged, single women who had relatives overseas, who travelled overseas and who are considered as the ones who had money'. The appellant further submitted that had the Tribunal assessed her claims against that second particular social group, 'it would have no difficulty to accept that [her] claims are Convention-related because there would have been a great deal of independent information consistent with my claims'.