M35 of 2006 v Minister for Immigration
[2007] FMCA 455
•27 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M35 OF 2006 v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 455 |
| MIGRATION – Refugee Review Tribunal – whether the Tribunal took into account irrelevant considerations – whether the Tribunal erred in finding that Moldova is now a democratic country – application dismissed. |
| Federal Magistrates Court Rules 2001, r.10.01(2) |
| Applicant: | PLAINTIFFS M35 OF 2006 |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG1194 of 2006 |
| Judgment of: | Riley FM |
| Hearing date: | 21 March 2007 |
| Date of last submission: | 21 March 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 27 April 2007 |
REPRESENTATION
| Counsel for the Applicant | In person |
| Counsel for the First Respondent: | Chris Horan |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application filed on 27 March 2006 be dismissed.
The applicants pay the first respondent’s costs fixed in the sum of $6,000, including $1,000 in relation to the High Court proceeding.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG1194 of 2006
| PLAINTIFFS M35 OF 2006 |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 29 December 2005. That decision affirmed a decision of the first respondent’s delegate refusing to grant a protection visa to the applicants.
The applicants are a husband and wife who claim to be citizens of both Romania and the Republic of Moldova. The applicants arrived in Australia on 29 April 2004 on short stay business visas and applied for protection visas on 3 June 2004. On 6 October 2005, a delegate of the first respondent refused the protection visa applications.
On 26 October 2005, the applicants applied to the Tribunal for review of the decision of the delegate. On 13 January 2006, the Tribunal handed down its decision signed on 29 December 2005 affirming the decision of the delegate refusing to grant protection visas to the applicants.
On 7 February 2006, an application for judicial review of the Tribunal’s decision and a supporting affidavit were filed in this court. On 1 March 2006, the applicants failed to attend a directions hearing and the application was struck out by Registrar Bardsley with a right of reinstatement pursuant to order 10.01(2) of the Federal Magistrates Court Rules 2001. On 20 March 2006, the applicants filed an application for reinstatement, but that application was discontinued on 31 March 2006.
On 27 March 2006, the applicants filed in the High Court a further application in respect of the Tribunal’s decision signed on
29 December 2005 and an affidavit sworn by the applicant husband. On 24 August 2006, Hayne J remitted the proceeding to this court.
On 16 March 2007, the first respondent filed contentions of fact and law. On the same date, the applicant wife filed an additional affidavit sworn on 16 March 2007. The applicants did not file any written submissions.
Initial claims
In their protection visa application, the applicants said that they were born in “MDA” in Romania, that their country of habitual residence was Romania and their language was Romanian. They said they had travelled on “Cetatean Roman” passports. The applicant husband said that he was born in 1958 and had trade qualifications as an electrician and as a plumber. He said he worked before coming to Australia as an interior decorator. The applicant wife said she was born in 1960 and had worked before coming to Australia as an accountant. The applicants said they had a son who was born in 1979 and another born in 1989 who were not in Australia with the applicants.
The applicant husband said the applicants left Romania because:
We are refugees from the communist regime in our homeland. I have always had a strong anti-communist feelings and also that I have always persecuted by the state together with all my family. I oppose communist regime in my country as being against morality, against basic social principles and also because it does not deliver economically. I have come to Australia to change my condition and to be in a normal country who with a democratic system and I seek to stay in Australia.
The applicant husband claimed that if they returned to Romania they might be harmed by the communist party and the state. He also said that they feared that if they returned to Romania, he would be put in prison and that it would be impossible to find a job. He said that the authorities would not protect him because he opposes them. The applicant wife did not advance any additional claims.
The delegate’s decision
The delegate noted that the applicant’s failed to attend their interview scheduled for 29 July 2005, and had provided no additional information to that contained in their application. The delegate cited country information to the effect that Romania is a multi-party democracy that generally respected human rights and that had turned its back on its communist past. In the circumstances, the delegate considered that the applicants did not face a real chance of Convention-based persecution.
Evidence before the Tribunal
The applicants gave oral evidence before the Tribunal on 15 December 2005. At the outset, the applicant husband said, according to the Tribunal’s summary,
… he was born in Lozova in the District of Chsinau in the Republic of Macedonia. He indicated that he was a citizen of both the Republic of Moldova and Romania. When asked whether he was free to enter and live in both countries, he replied in the affirmative but said that he required a passport to enter one country or the other. He said that even the Romanian customs did not treat them in a civilised matter while the Moldovans were brutal because they hated Romanians. He said that part of the government was communist inclined and they were responsible for bad treatment.
The applicant was asked whether he had ever lived in Romania. The applicant said that he had only had a residential address in Romania but had not lived in Romania. The Tribunal put to the applicant that his protection visa application indicated that he had been born in Romania and that he had a Romanian passport and no other travel document. The applicant said that he had a copy of all the information he had given in his protection visa application and there was no mention that he was Russian. He produced a handwritten sheet, a copy of which appears at folio 17 of the Tribunal’s file. He said that the solicitor had filled in the form based on the information he had provided and that this information was on the sheet. The applicant said that there had been a change of territory and that he still considered himself Romanian based on their history because it used to be part of Romania. It had been impossible to use his Moldovan passport and so he had used his Romanian one. The applicant confirmed that he had a Moldovan passport and said that it was at home in Chsinau.
Before the Tribunal, the applicant claimed that he had been excluded from his studies at the Institute of Pedagogy because of his involvement in a political party called the National Front. In its reasons for decision, the Tribunal summarised the applicant’s evidence about his political activities as follows:
In 1985, he had started a three-year course at the Institute of Pedagogy in “Plastic Arts”. In 1988, he had started skirmishing and political conflicts. He had been a member of a political party called the National Front. He had not suffered anything physically but had been followed and kicked out of university after completing three years of what should have been a five-year course. He said that he had been excluded in 1989. Then the old USSR had been torn apart. The applicant indicated that his participation in demonstrations had started in 1988, that he had been excluded in 1989 and that the regime had been deposed in 1990. He referred to the conflict between Moldova and Transnistria. He said that they had been promised freedom before the democratic system came to power but a “new communist” regime had soon gained power.
…
The Tribunal asked the applicant whether he was a member of the National Front. He said that the students had been founders of this movement. They had not had ID cards but had had an ideology. He indicated that he had participated in activities with other students to bring down the communist regime. The Tribunal sought to confirm with him that as a result of that other activity he had been excluded from university. The applicant said that it had been not only him. There had been mass expulsions.
…
The Tribunal asked the applicant whether he had been politically active after the fall of the communist regime. The applicant said that his activity had been to fight the situation that everybody had been facing of not having the freedom and suppression and so on. He said that he still considered himself as being active and had the idea of embracing freedom. The Tribunal asked the applicant how he was active and what he had done in Moldova after the fall of the communists. The applicant reiterated that the communists had come back under a different name and said that there had been democracy at only one election. People with new ideas had left the country and the old communists had stayed and returned to power. The applicant said that he gave more importance to family than politics and other activity. He said that he had two children. The applicant said that he was not a member of any political party. The Tribunal sought to confirm with him that his active involvement in politics had predated the fall of the communists. The applicant said that the National Front still existed but was powerless. Moldova was still under the protection of Russia and no one could oppose them or their ideology. The Tribunal put to the applicant that it appeared that he was no longer politically active. The applicant said that he had not abandoned the political idea. The applicant was asked to explain what he was doing about that idea. He said that he helped by making financial donations to the Popular Front. He agreed that a lot of people must do a similar thing.
The applicant husband also claimed that Romanians were a minority in Moldova. He claimed that the language used in Moldova was really Romanian and not Moldovan, despite its name. The Tribunal asked the applicant if he had been disadvantaged because he was a Romanian speaker. In its decision, the Tribunal summarised his reply as follows:
He said that if he spoke the Romanian language they would say to speak the “normal language” (Russian) and he would have no choice but to accept what they said. He said that they would say this because everything is dictated by the Russians.
The applicant wife also gave evidence before the Tribunal, which summarised part of her evidence as follows:
When asked why she had left Moldova, the applicant wife said that they had been in a very grave situation and that the children had been unable to continue their education. When asked why this was, she said it was because the laws did not protect the population. Following a further prompt, she said that the Russian language was enforced and that her children did not like to use this. She said that the education was left in the hands of the past regime of the communist system. The applicant described the education system as “anti-national”. …
The applicant wife also claimed that she had suffered harm from the authorities in Romania because she had not been able to obtain employment. The Tribunal summarised her evidence on this point as follows:
When asked why she had not had work, the applicant wife said that it had been because of the change in the law and regulations. … The applicant said that due to certain changes she had been forced to fight with [her employer] to keep her job and that it had not been possible. When asked what the changes were, she said that the communist regime had come back to power. The Tribunal asked the applicant why that meant she could not have a job. She said that the changes had been such that the mafia dictated and got jobs for those on their side.
…
The Tribunal asked the applicant wife whether she had any other problems in Moldova. She referred to family problems and following a further prompt said that they had difficulties giving their children the education for their future and could not foresee a good future. When asked why this was, she said that that was the system of their country.
Tribunal’s reasons for decision
The Tribunal found that both applicants were citizens of Moldova and had Moldovan passports. The Tribunal found that the applicants did not have a well-founded fear of persecution in Moldova, so did not assess their claims in relation to Romania.
The Tribunal accepted that the applicant husband was:
… one of many people in the late 1980s agitating for the overthrow of the communist regime. It accepts that, at a time when Moldova was still a part of the Soviet Union, this led many students to be expelled from universities and that the applicant was one of these people.
However, the Tribunal found that the applicant had not remained politically active, saying that:
As he said at the hearing, he now gives more importance to family. He is not, and has never been, a member of a political party. While it may be that the Communist Party has succeeded in re-establishing a degree of influence in the years since the fall of the Soviet Union, it is apparent that the political situation in Moldova is now much different to what it was in 1989. The Communist Party has regained some power through a democratic process which allows the Moldovan people to elect their leaders through free and fair elections. The government is one which generally respects the human rights of its citizens. The applicant has not detailed any ongoing political persecution. In these circumstances and in circumstances where the applicant is no longer politically active, the Tribunal finds to be remote the chance that the applicant would be persecuted in Moldova for reason of an actual or imputed political opinion.
The Tribunal considered the applicant husband’s claim that Romanians were treated as a minority in Moldova, particularly in relation to their language. The Tribunal noted that:
The applicant claimed that Romanians were treated as a minority in Moldova. His claims in this regard focused largely on the Moldovan language and the fact that the official language is known as Moldovan rather than Romanian. Independent information indicates that the naming of the national language has been a point of contention in Moldova. There has been some agitation for the name of the language in the constitution to be changed from Moldovan to Romanian (Federal Research Division of the US Library of Congress, cited above). Nevertheless, it is apparent from independent information that the single official language in Moldova is effectively Romanian (although this may be known as Moldovan). While the Tribunal accepts that the applicant along with some other Moldovans objects to the naming of the official language, it remains the case that he is one of the majority of Romanians who speak this language.
The Tribunal then said:
Independent information clearly indicates that Romanian speakers constitute a majority of Moldova (65% of the population), although Russians are one of the two largest minorities. Russians constitute only 13 per cent of the population. Far from being marginalised and forced to speak Russian, Romanian speakers have had their language recognised as the sole official language in the country. This is at odds with the applicant’s claim that there was pressure to speak Russian. Indeed, as the Tribunal put to the applicants, independent information indicates that, in the wake of the fall of the Soviet Union, it was rather the Russian speakers in Moldova that felt threatened. The authorities in the Transdniester Moldovan Republic, where Russian-speakers dominate, subsequently announced independence. Further, the Tribunal does not accept that Moldova continues to be a communist state run remotely from Moscow. It may be that the Communist Party has been able to re-establish some influence in the new political system as is evidenced by the election of a Communist Party President. However, Moldovans, the majority of whom speak the Romanian language, are able to elect their political leaders through free and fair elections. (emphasis added)
The applicants have provided little detail as to how the fact that they are Romanian speakers with Russian passports has led them to suffer disadvantage. As outlined above, the Tribunal does not accept that the applicant’s children have faced discrimination in relation to their education. In all the circumstances, the Tribunal does not accept that Romanian speaking Moldovans are forced to speak Russian or face discrimination if they do not. It does not accept that in the years prior to their departure from Moldova, the applicants suffered harm amounting to persecution for reason of their ethnicity, their nationality or their membership of the Romanian speaking community. Looking to the reasonably foreseeable future, it finds to be remote the chance that they would suffer persecution for these reasons.
With respect to the applicant wife’s claim that she had suffered from not being able to find employment, the Tribunal said:
… While the applicant wife may have had difficulty obtaining employment, the Tribunal does not accept that she was unable to obtain employment due to discrimination from the authorities or as a consequence of her membership of the Romanian speaking majority.
Both the applicant and the applicant wife claimed that there was corruption in Moldova. The applicant wife made a claim that the mafia dictated who had jobs. However, when pressed for detail, she was very vague as to how she had been prevented by them from finding further employment. When asked what they had done to stop her working, the applicant wife responded in very general and somewhat vague terms, saying that the only reason was that they would say, “We don’t need you on the job”, if you were not on their side. The applicant wife was asked when she had last applied for a job but failed to provide further detail, referring simply to the high rate of unemployment. She was similarly vague when asked when she had last applied for a job and been told that they did not need her, saying that she was looking for work all the time. The Tribunal prompted the applicant wife further, asking her whether they had said anything to her other than they did not need her but the applicant wife again responded by referring to the difficulty generally in finding employment. As the Tribunal pointed out to the applicant wife, her husband was able to work in a range of jobs. It may be that he took whatever jobs he could find but the Tribunal does not accept that the mafia exercised control over who could and could not work in Moldova. In all the circumstances, the Tribunal does not accept that the applicant wife has been denied further employment because of such mafia influence.
…
… Independent information also supports the applicant’s claim that there is high unemployment [in Moldova]. The Tribunal finds that the applicant wife’s difficulties in finding a job relate largely to the poor state of the economy and the high unemployment rate. …
Grounds of review
In the application filed in the High Court on 27 March 2006, the applicants set out the following grounds of review:
(i)that a breach of the rules of natural justice occurred in connection with the making of the decision of the Second Defendant dated 29 December 2005 to refuse the Plaintiff a visa.
(ii)that the decision involved an error of law.
(iii)that procedures that were required by law to be observed in connection with the making of the decision were not observed.
(iv)that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported go (sic) be made.
(v)that there was no evidence or other material to justify the making of the decision.
(vi)that the decision was otherwise contrary to law.
No particulars indicating how those grounds of review arose in the present case were provided by the applicants.
Affidavit of the applicant wife
On 16 March 2007, the applicant wife filed an affidavit sworn on that date saying that she had learned a month earlier that her legal aid application had been refused. She said that while awaiting a response from Legal Aid, she had looked everywhere for legal assistance but had been unsuccessful. She also said that the court, perhaps meaning the Tribunal, had taken into account irrelevant considerations.
First respondent’s written submissions
On 16 March 2007, the first respondent filed written contentions of fact and law. In the section titled ‘Contentions of Law’, the first respondent noted that none of the grounds in the application for review contained particulars. The totality of the first respondent’s written submissions of law are as follows:
In the absence of any particulars, or any contentions in support of the above grounds, there is no basis on which this Court can find that the Tribunal’s decision was affected by jurisdictional error.
Oral Submissions
When the matter came on for hearing before this court on 21 March 2007, the applicants were unrepresented but had the assistance of an interpreter. Notwithstanding the contents of the affidavit of the applicant wife sworn on 16 March 2007, the applicant’s did not seek an adjournment for the purposes of seeking legal assistance, perhaps because they had no realistic expectation of such legal assistance becoming available. The court explained to the applicants the role of the court in matters such as this and the nature of jurisdictional error.
The applicant husband asked the court to look more carefully at his case than the Tribunal had done. He said that he and his wife had come from a communist country, but that they did not have concrete evidence of what had happened to them there. He said that the Tribunal had been in error because the applicants had said that they had come from a communist country but the Tribunal had decided that they had come from a democratic country. The applicant wife said that she relied on the same errors that her husband had nominated and said that she and her husband both wanted an opportunity to work and be a family in this country.
The first respondent said in oral submissions that he relied upon the written submissions and said that there was no error apparent from the Tribunal’s decision. The first respondent referred particularly to the paragraph of the Tribunal’s decision set out at paragraph 20 above and said that the findings in that paragraph were based on independent country information and were open to the Tribunal.
The applicant’s said in reply that the country information which the Tribunal relied upon was official information from Moldova that is not correct. The applicants said that they want the authorities in Australia to take into account what is happening over there and why the applicants are here and draw the appropriate conclusions.
Consideration
Contrary to the applicants’ assertions, the Tribunal’s finding that Moldova is a democracy was not based on information sourced from Moldova but on information sourced from the CIA’s World Factbook and the US Department of State. The CIA’s World Factbook was cited by the Tribunal as follows:
Formerly part of Romania, Moldova was incorporated into the Soviet Union at the close of World War II. Although independent from the USSR since 1991, Russian forces have remained on Moldovan territory east of the Dniester River supporting the Slavic majority population, mostly Ukrainians and Russians, who have proclaimed a “Transnistria” republic. The poorest nation in Europe, Moldova became the first former Soviet state to elect a Communist as its president in 2001.
The Tribunal summarised US Department of State information from 2005 to the effect that the Constitution of Molodva:
… provides for a multiparty parliamentary government, that generally free and fair parliamentary elections were held in 2001, that the country is transitioning from a centrally planned economy to a market economy, and the Government generally respected the human rights of its citizens.
The Tribunal also noted that in the US Department of State report there were no reports of arbitrary or unlawful deprivation of life committed by the Government or its agents and the Government generally respected prohibitions on arbitrary arrest and detention. The Tribunal also noted that the US Department of State report stated that Romanian was the only official language, while other sources confirmed that the Moldovan dialect of Romanian was the official language of Moldova.
Accordingly, I consider that it was open to the Tribunal on independent country evidence to conclude that:
… the Tribunal does not accept that Moldova continues to be a communist state run remotely from Moscow. It may be that the Communist Party has been able to re-establish some influence in the new political system as is evidenced by the election of a Communist Party President. However, Moldovans, the majority of whom speak the Romanian language, are able to elect their political leaders through free and fair elections
The Tribunal made no reviewable error in this regard.
I note the applicant wife in her affidavit sworn on 16 March 2007 said that the Tribunal had erred by taking into account irrelevant considerations. The applicant wife did not specify the irrelevant considerations that the Tribunal had taken into account, although she was given an opportunity at the hearing before this court to specify what errors she relied upon. It may be that the applicant meant that the Tribunal’s conclusion that Moldova was now democratic involved the taking into account of irrelevant considerations. For the reasons given above, I do not consider that there was any error in the Tribunal’s conclusion that Moldova is now a democratic country. I am unable to discern any other matter in the Tribunal’s reasons for decision that might constitute an irrelevant consideration.
The grounds of review contained in the application filed on 27 March 2006 have not been particularised in any way. I have examined the decision of the Tribunal bearing in mind those grounds. However, I am unable to detect any error of the types mentioned.
The original application filed in this court on 7 February 2006 said that the grounds of the application were:
a)a failure to observe proper procedure;
b)a failure to act in accordance with substantial justice; and
c)taking into account irrelevant considerations.
These grounds were not particularised in any way in the application or in any of the supporting or subsequently filed material. I am unable to detect in the Tribunal’s reasons for decision any error of the types mentioned in the application filed on 7 February 2006 or any other reviewable error.
Conclusion
In the circumstances, the application must be dismissed with costs.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate: Melissa Gangemi
Date: 27 April 2007
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