AZAAM v Minister for Immigration and Citizenship

[2009] FCA 1411

FEDERAL COURT OF AUSTRALIA

AZAAM v Minister for Immigration and Citizenship [2009] FCA 1411

AZAAM v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

VID 440 of 2009

LANDER J
1 DECEMBER 2009
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 440 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

AZAAM
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LANDER J
DATE OF ORDER:	1 DECEMBER 2009
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 440 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

AZAAM
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LANDER J
DATE:	1 DECEMBER 2009
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an appeal from orders of a Federal Magistrate made on 4 June 2009 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (RRT) made on 15 May 2008 which had affirmed the decision of a delegate of the first respondent not to grant the appellant a Protection (Class XA) visa under s 65 of the Migration Act 1958 (the Act).

2. A visa may be granted to a non-citizen if that person satisfies the prescribed criteria under the Act: s 65(1). Section 36(2)(a) of the Act provides that the criterion for a Protection visa is a non-citizen in Australia to whom the Minister (the first respondent) has protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 (the Refugees Convention) as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967.

3. Article 1A(2) relevantly defines a person as a refugee who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

4. The question for the RRT was whether the appellant came within that class of persons.

5. The appellant is an Austrian citizen who was born on 13 July 1972 in Graz, Austria.  She was educated at universities in Austria and Germany, and was awarded a Diploma of Architecture from the Graz University.  She worked as an architect, city planner, flight attendant and a first aid trainer.  She was first married to Ralph Broger and they lived in Germany and had two children.  On a date unknown they were divorced.

6. The appellant first entered Australia using the family name of Broger on 22 June 1999 under a Subclass 419 Visiting Academic visa.  She departed Australia on 11 August 1999.  She next entered Australia on 19 August 2005 under a Subclass 976 Electronic Travel Authority visa and departed Australia on 14 November 2005.

7. Apparently, for about three years prior to 11 October 2006, the appellant lived in Germany.  On 9 January 2006 whilst in Austria she married her now husband, Mr Andrew James Peck who is an Australian citizen.  She was last in Austria on 26 June 2006.

8. She entered Australia on 11 October 2006 under a Subclass 976 visa which was valid to 11 January 2007.

9. She claimed and the RRT accepted that her purpose in coming to Australia at that time was to join her Australian husband who was then living in Australia.  Subsequently, her husband made an application for a Subclass 309 Partner visa but at that time the application which was the subject of the RRT decision and the order of the Federal Magistrate had not been decided.

10. On 3 December 2007 the appellant applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa.  On 18 January 2008 a delegate of the Minister refused to grant the visa and on the same day notified the appellant of that decision and her review rights.  The delegate refused the visa application for the reason that the appellant was not a person to whom Australia had protection obligations under the Refugees Convention.  On 29 January 2008 the appellant applied to the RRT for a review of the delegate’s decision.

11. On 11 February 2008 the RRT invited the appellant to appear before it to give oral evidence and present any arguments.  On 14 March 2008 the appellant requested that the hearing be delayed.  On 17 March 2008 the RRT advised the appellant that it was not prepared to delay the hearing for the reasons advanced by the appellant in her letter of 14 March 2008.

12. On 26 March 2008 the appellant attended a hearing of the RRT at which the appellant was granted the right to provide additional evidence in support of her application by 2 April 2008.  The RRT received additional written material from the appellant on 31 March 2008, 2 April 2008 and 3 April 2008.

13. On 15 May 2008 the RRT handed down its decision affirming the delegate’s decision not to grant the appellant a Protection (Class XA) visa.

14. The appellant claimed that her previous husband, Mr Ralph Broger lives in Germany with their two children.  She claimed that Mr Broger falsely alleged that she had attempted to abduct their children whilst undertaking a custodial visit in Austria.  She claimed that her former husband is violent and that both he and his family would harm her if she were to return to Austria.  She further claimed that false allegations that she has a mental illness have been made for the purpose of denying her custody of her children.

15. She claimed that if she were to return to Austria she would be persecuted by being either imprisoned or detained in a mental hospital.  She also said that she fears persecution from her own family as a result of matters that occurred when she was a child.  She has a fear of courts.  She claimed she would be persecuted by reason of her nationality as a result of Interpol’s conduct towards her whilst she was in Germany.

16. The RRT found that any order made by a court in Austria in the appellant’s absence would not amount to persecution for the purposes of the Refugees Convention.  There was no factual basis for the appellant’s claim that she would be arrested or imprisoned or hospitalised in a mental institution on her return to Austria.  The matters to which the appellant referred are matters between her family, her former husband and his family, and herself, which amount to private matters and are not matters that are recognised by the Refugees Convention.  The RRT found that there was no real chance that the appellant would face persecution for any Convention-based reason now or in the reasonably foreseeable future.  It also found that the appellant’s fear of persecution was not well founded.

17. On 21 July 2008 the appellant applied in the Federal Magistrates Court of Australia for a review of the decision of the RRT handed down on 15 May 2008. The application was filed outside the time prescribed by s 477(1) of the Migration Act 1958 (Cth) (the Act) which provides that an application for review must be filed within 28 days of notification of the decision.

18. The Federal Magistrate, however, granted the appellant an extension of time for the filing of the application pursuant to s 477(2) of the Act.  Neither party complains of the order made by the Federal Magistrate granting an extension of time to the date upon which the application for review was filed.  However, on 4 June 2009 the Federal Magistrate dismissed the appellant’s application.  The Federal Magistrate rejected the appellant’s contention that the RRT had fallen into jurisdictional error.

19. The appellant argued before the Federal Magistrate that the RRT had failed to consider a claim that the appellant was a member of a particular social group.  The Federal Magistrate rejected that claim noting that the RRT had said in its reasons that the applicant had stated that she was not a member of a particular social group.  The Federal Magistrate noted that the transcript of the hearing before the RRT had not been tendered by the appellant.

20. On 10 June 2009 the appellant filed the notice of appeal which includes the following grounds:

    1.        Error in law

    (a)Delay in 411 visa case listed in front of the same Magistrate O’Rilley and adjourned (no work rights).

    2.Not to take the tape MRT made or order the hearing – transcript of MRT Deborah Morgan into consideration the minority I belong to 535 which ich (sic) stated at MRT in front of 2 witnesses.

    3.Order of cost.

    4.Delay in the other matters, listed as a prelim hearing (visa academic 411 for reopening a lawful status work rights).

21. The notice of appeal does not identify any grounds of appeal that would allow this Court to overturn the order made by the Federal Magistrate dismissing the appellant’s application for judicial review.

22. The appellant filed an outline of submission in support of this appeal but that outline also does not identify any jurisdictional error on the part of the RRT.

23. The appellant appeared unrepresented and spoke for a considerable time in support of this appeal but, unfortunately, again did not identify any ground of appeal which would allow the Federal Magistrate’s orders to be discharged.

24. Essentially the appellant claimed, as she did before the RRT, that the appellant’s former husband’s conduct had left her fearing that he and members of his family would cause her harm if she were to return to Austria.  Again, although it is not quite so clear, I think she contended that her own family would also cause her harm if she were to return to Austria.

25. She continued to make complaints about the way the Austrian courts had treated her in relation to a claim by her former husband that she had abducted their two children.

26. Any complaints that the appellant has in relation to the conduct of her former husband, his family or her family do not relate to any Convention-based claim.

27. I have studied the papers for myself to determine whether or not there was any discernable jurisdictional error on the part of the RRT but am unable to find any such error.

28. In all of those circumstances, the appeal must be dismissed and the appellant must pay the first respondent’s costs.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:

Dated:        1 December 2009

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the First Respondent:	Mr P d’Assumpcao
Solicitor for the First Respondent:	Australian Government Solicitor

Date of Hearing:	26 October 2009
Date of Judgment:	1 December 2009