AZT15 v Minister for Immigration
[2016] FCCA 1786
•14 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AZT15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1786 |
| Catchwords: MIGRATION – Review of a decision of the Refugee Review Tribunal – application for a Protection (Class XA) visa – no jurisdictional error – application dismissed. |
| Legislation: Border Protection Legislation Amendment Act 1999 (Cth) Migration Act 1958 (Cth), ss.5(1), 36, 36(2)(aa), 36(3), 36(4), 36(5), 36(5A), 422B, 501 Migration Amendment (Complementary Protection) Act 2011 (Cth) |
| Cases cited: Minister for Immigration v SZMOK (2009) 257 ALR 427 Re Minister for Immigration and MulticulturalAffairs: ex parte Durairajasingham (2000) 168 ALR 407 SZRTC v Minister for Immigration and Border Protection [2014] FCAFC 43 SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125 |
| Applicant: | AZT15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1317 of 2015 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 12 April 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 14 July 2016 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Ms Arduca |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $6,825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1317 of 2015
| AZT15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Before the Court is an application for judicial review of a decision of the Refugee Review Tribunal (as it then was) (‘the Tribunal’) dated 7 May 2015 affirming a decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa (‘the visa’).
The grounds of the application are as follows:-
“1. Breaching natural Justice
2. Relying on irrelevant material
3. Ignoring relevant material
4. The Respondent(s) Failed to acknowledge that because of the “DATA BREACH” in February 2014 the Privacy Act 1988 (Cth) s14 was Breached twice under IPP 4 and IPP 11.
5. In making the Decision, the Respondent(s) did not take into account mandatory relevant information.”
The grounds of review are not particularised.
The Applicant relies upon his application and affidavits of evidence affirmed by him on 10 June 2015 and 6 April 2016.
The Applicant seeks that a writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 7 May 2015 and that the matter be remitted to the Administrative Appeals Tribunal to be determined in accordance with the law.
The First Respondent seeks dismissal of the application with costs. The First Respondent has filed contentions of fact and law dated 18 September 2015 (on which he relies) and the Court Book. The Court has as evidence in the proceedings the material as contained in the Court Book.
The Applicant participated in the proceedings before the Court by video-link from Christmas Island Immigration Detention Centre. He represented himself. No interpreter was required for the purposes of the hearing.
History
The Applicant was born in Malta in 1976. He claims to be a citizen of Malta. He immigrated to Australia with his family in 1981. The Applicant has returned to Malta on two occasions, one for several weeks in 1984 and on another occasion for approximately three years from 1985-1988. Since his last arrival in Australia in approximately 1988, the Applicant has not departed Australia.
In late 2004, the Applicant was convicted of two counts of attempted incest against his stepdaughter in July 2003. In 2005 the Applicant was convicted of the rape of his ex-defacto partner and was sentenced to prison for nine years and three months, reduced to seven years and six months with a non-parole period of five years by the Court of Appeal.
The Applicant’s visa was cancelled by the Department of Immigration and Border Protection (‘the Department’) in May 2010. That decision was set aside by the Tribunal in August 2010 with the decision of the Tribunal upheld by the Federal Court of Australia in July 2011. The Minister then personally cancelled the Applicant’s (Class BF) Transitional (Permanent) visa pursuant to s.501 of the Migration Act 1958 (Cth) (‘the Act’) in February 2012. The Applicant was taken to immigration detention.
The Applicant applied for a Protection (Class XA) visa on 27 November 2014. On 28 January 2015, a delegate of the Minister refused to grant the visa. The Applicant applied to the Tribunal for review of the delegate’s decision.
The Tribunal
On 13 March 2015 the Applicant was invited to appear before the Tribunal. Such invitation was forwarded to Ms Priscilla Jamieson, Refugee and Immigration Legal Centre INC as the authorised recipient of the Applicant. The Applicant was advised that he should provide a written submission setting out all his claims made and maintained. The Applicant was advised that “arrangements are being made with the Department of Immigration and Border Protection and the detention centre for you to attend the hearing.”
Written submissions were provided to the Tribunal by or on behalf of the Applicant dated 12 January 2015, 4 March 2015 and 11 March 2015. The submissions of 11 March 2015 included, relevantly, the following submissions as to the Applicant’s right to enter and reside in the European Union:-
“The authorities of Malta continue to refuse to issue the applicant with a Maltese travel document despite high level meetings between Australian and Maltese government representatives, and the applicant continues to have no legal permission, present ability or capacity to enter and reside in Malta, or any other country. Current authority indicates that the right referred to in s36(3) of the Migration Act 1958 must be an existing right, and not a past or lapsed right, or a potential right or an expectancy. In the absence of a Maltese passport and identity card, the applicant has no right to enter and reside in any country apart from Australia.
…
We submit that the Schengen Information System (SIS) will ensure the applicant’s criminal and immigration background will be readily identifiable. The SIS, which was established as an intergovernmental initiative under the Schengen Convention, is now integrated into the EU framework. Country information reports that the SIS is used by border guards as well as police, customs, visa and judicial authorities throughout the Schengen area.
…
We submit that there is no evidence that the applicant has ‘effective protection’ in any other country. The applicant at present does not have any legal permission, present ability or capacity to enter and reside in Malta or any other country.
In the absence of a passport and identity card, the applicant has no right to enter and reside in any country apart from Australia. Even if he were to be granted a Maltese passport and identity card, in our submissions he would not have the right to enter and reside in countries covered by the Schengen Agreement or the European Union because of his particular circumstances including his criminal record and his lack of any employment, accommodation or other links with Malta.”[1]
[1] Letter from Refugee & Immigration Legal Centre Inc to Refugee Review Tribunal dated 11 March 2015.
On 12 March 2015 the Applicant and his representative appeared before the Tribunal to give evidence and present arguments. Following the Tribunal hearing and on 9 April 2015 the Applicant’s authorised recipient made further submissions on behalf of the Applicant which, relevantly, included the following:-
“We note that information has previously been provided to the Tribunal concerning the fact that the Maltese authorities are not willing to have the applicant return to Malta.
While the Tribunal expressed the view that the applicant was a Maltese citizen and could be returned there, both the Ministerial Intervention Unit submission to the Minister in respect of the applicant’s request under section 195A of the Migration Act 1958, and the report prepared by the Ombudsman on the circumstances of the applicant’s prolonged immigration detention refer to the fact that the Maltese authorities do not wish the applicant to be returned and are not prepared to facilitate his removal to Malta.
We note that the applicant has been kept in immigration detention since February 2012, now more than three years. Prior to this application being lodged, more than two and a half years elapsed without his being removed. In our submissions this underlines the difficulties the Department has in negotiating the applicant’s return with the Maltese authorities.”[2]
[2] Letter from Refugee & Immigration Legal Centre Inc to Refugee Review Tribunal dated 9 April 2015.
On 7 May 2015, the Tribunal affirmed the decision of the delegate not to grant the visa. The Tribunal issued a Corrigendum to the decision on 20 May 2015 to replace the word ‘Sri Lanka’ at paragraph 50 of the decision with the word ‘Malta’.
Applicant’s claims
In support of his application for a protection visa, the Applicant claims, as accurately set out in the First Respondent’s contentions of fact and law:-
a)Malta is a conservative Catholic country and the Applicant is afraid he will be seriously harmed if he returns. Malta is a small country and he would not be able to hide or live discreetly.
b)There have been various publications in the media about the Applicant to enable those in the Maltese community to recognise him. These include ‘A Current Affair’ (ACA) segment run on 30 July 2014 containing interviews with his former defacto partner and his daughter, which included photos of him and made a number of untrue accusations about him. The segment was reported in Malta and made available on various Maltese websites. Threatening posts have been made on various websites in Malta and Australia. Another report states that the Applicant has been placed on the ‘Australian Child Abusers Named and Shamed’ website which repeats the information in the ACA program and includes a photo of the Applicant with his son.
c)The Applicant believes he will be easily identifiable because of the information and photos and his tattoos.
d)The Applicant’s mother was contacted by her sister in Malta who told her that the Applicant should not return as people in Malta were waiting to get him and that she wanted nothing to do with him.
e)As a convicted sex offender, the Applicant will be unable to find work or accommodation in Malta.
f)The Applicant has no assets or income and will be destitute if he returns to Malta. He will not be entitled to welfare payments.
g)The Applicant fears his depression and diabetes will become worse and he will have no income to purchase medication.
h)The Applicant would not be able to relocate to other countries as he would have to declare his crimes.
i)In February 2014, the Applicant’s details were made available on the Department’s website including his name, the fact he is in detention and that his visa was cancelled under s.501 of the Act.
j)A Departmental submission stated that the Maltese government had raised concerns regarding the Applicant’s resettlement given his length of time in Australia, the nature of his criminal history and the possible media interest in Malta following his removal. The Court notes that this claim was further elaborated upon in paragraph 33 of the Tribunal’s Statement of Decision and Reasons (‘the Decision Record’) to the following effect:-
“…It is submitted that the applicant does not have any legal permission or present ability or capacity to enter or reside in Malta or any other country and does not have a passport or identity card. He would not have the right to enter and reside in countries covered by the Schengen Agreement or the European Community because of his particular circumstances including his criminal record and his lack of employment, accommodation or other links to Malta.”
k)The Applicant will not be able to access effective State protection in Malta and he does not have legal permission or a passport to allow him to enter and reside in Malta or any other country.
l)The Applicant claims he faces harm due to his membership of particular social groups being:-
i)Convicted criminals;
ii)Convicted sex offenders;
iii)Convicted child sex offenders;
iv)Ex-prisoners;
v)Criminal removees;
vi)Homeless people in Malta; and
vii)Mental health sufferers in Malta.
Tribunal’s Findings
The Tribunal found that Malta was the Applicant’s country of nationality for the purposes of the Convention and also the Applicant’s receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.
The Tribunal took into account the various media articles and reports concerning the Applicant, including the Herald Sun 2013 article which named him as a rapist of his ex-defacto; the 30 July 2014 ACA program which it published on its website; the Malta Today reporting of the story on 31 July 2014; a Facebook page ‘Australian Child Abusers Named and Shamed’ which refers to the Applicant and includes his photo; a radio program with Melbourne broadcaster, Neil Mitchell, which discussed the Applicant’s offences; and that the Applicant has been named in the Movement Against Kindred Offenders (MAKO) which lists registered sex offenders.
The Tribunal accepted that a relative saw the article and contacted the Applicant's mother warning they did not want anything to do with him and that people would be out to get him. However, the Tribunal found that the comment that ‘people would get him’ were general and unspecified and did not indicate that any individual in Malta is presently motivated to harm the Applicant, or that there is any chance that any individual will be motivated to harm him.
The Tribunal accepted the evidence that a number of relatives and associates of the Applicant's ex-partner have made hostile comments about him and that they will inform relatives in Malta of his return. However, the Tribunal did not consider that people or the media in Malta have, or that there would be a real chance of them having, a particular interest or familiarity with the Applicant and the nature of his crimes, even if he was removed from Australia. The crimes were committed over 10 years ago and there was no evidence of any interest in the crimes at the time of the Tribunal hearing.
The Tribunal noted that there has been some reporting in the Australian media and online; one article in the Maltese media naming the Applicant; and one article in the Maltese media which reported on the Tribunal’s decision, but did not name the Applicant. The Tribunal did not accept that there is a real chance or risk, and found that it was remote and speculative, that the Applicant faced serious harm or significant harm from relatives or anyone else. At the hearing, the Applicant could not tell the Tribunal of any threats he had received or was aware of.
As to the Applicant’s personal details being inadvertently made available online on the Departmental website on 31 January 2014, the Tribunal said relevantly:-
“43. …I accept that the applicant’s name, date of birth, nationality, gender, details about when and where he was detained and whether he had any other family members in detention. I also accept that the applicant’s status as having had his visa cancelled on character grounds and the amount of time he had spent in detention was made available. This was referred to in the delegate’s decision and also referred to in a written submission of the agent. However, I do not accept that this limited level of detail contained in the data breach (it does not refer to any of his convictions) would have caused the applicant to have come to the adverse attention of members of the Maltese public such that there would be a real chance or real risk that he would be harmed by them if he was to return.”
The Tribunal took into account that there is a child sex register in Malta but country information indicates that, to be registered, a person would have to be convicted after it came into force in January 2012.
The Tribunal took into account reports concerning the difficulties that ex-prisoners and paedophiles can have re-integrating into Maltese society, including obtaining employment. It did not accept that the Applicant would not be able to find work and income support. When considering a document submitted by the Applicant stating that he would not be entitled to income support unless he was employed, the Tribunal noted that country information suggests that special unemployment benefits for a period of 156 days are available under a non-contributory scheme. The Tribunal also noted that health care in Malta is generally free at the point of use. The Tribunal found that there was no evidence that the Applicant would be denied income support or services due to his membership of any particular social group.
Taking into account the evidence, the Tribunal found that the Applicant has significant work experience and will be able to communicate and find employment.
The Tribunal concluded its Decision Record with the following paragraphs:-
“49. Given my findings above, whilst I accept that “homeless people in Malta” constitute a particular social group, I find that it is remote that the applicant will become a member of this group. I accept that “convicted criminal”, “convicted sex offenders”, convicted child sex offenders”, “ex-prisoners”, “criminal removees” and “mental health sufferers in Malta” constitute particular social groups and that the applicant is a member of these groups. However, after considering the whole of the country information and his individual circumstances, even on a cumulative basis, I find that there is not a real chance that the applicant will fact a real chance of persecution on account of his membership of these particular social groups or any other Convention or non-Convention related reason from the state or any non-state actor.
50. Considering the applicant’s individual circumstances and the independent country information cumulatively, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant’s being removed from Australia to Malta that there is a real risk that he will suffer significant harm.
51. For completeness, I have also considered the question of state protection in the European Union nation of Malta in relation to the applicant. The Tribunal has not identified any reports of the Maltese state not providing protection or discriminately withholding protection to any of the particular social groups advanced by the agent. Indeed, the US Department of State’s 2014 report on human rights in Malta noted that the constitution prohibited discrimination:
The constitution prohibits discrimination based on race, gender, disability, language, sexual orientation or gender identity, or social status, and the government generally enforced these prohibitions.
…
53. I note the Maltese High Commissioner has expressed reluctance for the applicant to return to Malta and to issue him a travel document, but I do not accept that this indicates the Maltese state would not take steps to protect him from any harm if he did return. Rather the evidence indicates that the Maltese government have indicated that given the length of time the applicant has been in Australia and the nature of his criminal history that they consider the Australian government may be better placed to manager the applicant in Australia.
54. Considering the country information as a whole, I find that Malta has appropriate criminal laws and a reasonably effective and impartial police force and judicial system and I find that the applicant would be able to access a level of state protection in Malta in accordance with the principles of MIMA v Respondents S152/2003.
55. Considering the country information as a whole, I find that the applicant could obtain protection from the authorities in Malta such that there would not be a real risk that he will suffer significant harm: MIAC v MZYYL [2012] GCAFC 147.
Conclusion
56. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
57. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).”
Consideration
Section 36 of the Act is as follows:-
“(1A) An applicant for a protection visa must satisfy:
(a) both of the criteria in subsections (1B) and (1C); and
(b) at least one of the criteria in subsection (2).
(1B) A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979 ).
(1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a) is a danger to Australia's security; or
(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
Note: For paragraph (b), see section 5M.
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i) is mentioned in paragraph (aa); and
(ii) holds a protection visa of the same class as that applied for by the applicant.
(2A) A non-citizen will suffer significant harm if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.
(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
(b) the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
Ineligibility for grant of a protection visa
(2C) A non-citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:
(a) the Minister has serious reasons for considering that:
(i) the non-citizen has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
(ii) the non-citizen committed a serious non-political crime before entering Australia; or
(iii) the non-citizen has been guilty of acts contrary to the purposes and principles of the United Nations; or
(b) the Minister considers, on reasonable grounds, that:
(i) the non-citizen is a danger to Australia's security; or
(ii) the non-citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.
Protection obligations
(3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
(4) However, subsection (3) does not apply in relation to a country in respect of which:
(a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.
(5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:
(a) the country will return the non-citizen to another country; and
(b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.
(5A) Also, subsection (3) does not apply in relation to a country if:
(a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.
Determining nationality
(6) For the purposes of subsection (3), the question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country.
(7) Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.”
Sub-sections (3), (4) and (5) of s.36 of the Act were added by the Border Protection Legislation Amendment Act 1999 (Cth). Sub-section (5A) was included by the Migration Amendment (Complementary Protection) Act 2011 (Cth).
The Applicant has not identified any failure by the Tribunal to comply with its hearing obligations under Part 7, Division 4 of the Act, which “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”: s.422B of the Act.[3] The Tribunal complied with its hearing obligations in this case by inviting the Applicant to attend a hearing to give evidence and present arguments. The Applicant has not identified any issue with that hearing.
[3] See eg Minister for Immigration v SZMOK (2009) 257 ALR 427 at [12]-[18].
The Tribunal accepted that the Applicant’s details had been disclosed on the Department’s website but found that the limited level of detail would not have caused the Applicant to have come to the adverse attention of members of the Maltese public such that there would be a real chance or risk that he would be harmed if he was to return. In the circumstances of this case there was no denial of procedural fairness of the kind identified in SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125. The Tribunal was performing a different function and operating within a statutory framework such that its decision is distinguishable.
The Tribunal cited and applied the correct law in determining whether the Applicant met the criteria for the visa in s.36(2) of the Act. The Tribunal considered each of the Applicant's claims and rejected his core claims based on credibility findings. The Tribunal’s findings as to credibility are findings of fact par excellence.[4] The totality of the Tribunal’s findings were open on the evidence before it. No error of law is apparent in the Decision Record of the Tribunal.
[4] Re Minister for Immigration and MulticulturalAffairs: ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J (at 432).
There is no jurisdictional error attending the decision of the Tribunal. It is only where the Applicant satisfies one or more of the criteria for a protection visa prescribed by s.36(2) of the Act that the decision maker would have had to turn to s.36(3) of the Act, that sub-section operating as a qualification on sub-section (2).[5] Section 36(3) of the Act would or would not have applied to the Applicant and if it applied than s.36(3) of the Act would be subject to the qualifications contained in sub-section (4), (5) and (5A) of s.36 of the Act.[6]
[5] SZRTC v Minister for Immigration and Border Protection [2014] FCAFC 43 at [25].
[6] Ibid.
The proceedings shall be dismissed with costs.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 14 July 2016
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