MZKAI v Minister for Immigration &; Mzkay and MZKAK v Minister for Immigration
[2004] FMCA 734
•9 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZKAI v MINISTER FOR IMMIGRATION & MZKAY & MZKAK v MINISTER FOR IMMIGRATION | [2004] FMCA 734 |
| MIGRATION – Application for protection visa – whether Minister's satisfaction a jurisdictional fact – whether finding of Tribunal supported by probative material or logical or rational grounds – whether Tribunal asked wrong question in relation to documents. |
Judiciary Act 1908
Minister for Immigration and Multicultural and of Indigenous Affairs v SGLB [2004] HCA 32
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, [2001] HCA 30
Dalpatadu v Minister for Immigration and Multicultural Affairs [2000] FCA 697
W148/00A v The Minister for Immigration and Multicultural Affairs [2001] FCA 679
Thevendram v The Minister for Immigration and Multicultural Affairs [2000] FCA 1910
| Applicants: | MZKAI & OTHERS |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 1145 of 2002 |
| Applicant: | MZKAJ & MZKAK |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 1146 of 2002 |
| Delivered on: | 9 November 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 7 August 2003 |
| Judgment of: | Phipps FM |
REPRESENTATION
| Counsel for the Applicant: | Dr Donaghue Pro bono |
| Counsel for the Respondent: | Mr Horan |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
In the matter of MLG1145 of 2002, the applicant pay the respondent’s costs fixed at $3,000.00.
In the matter of MLG1146 of 2002, the applicant pay the respondent’s costs fixed at $3,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 1145 of 2003
| MZKAI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
MZ 1146 of 2003
| MZKAJ & MZKAK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicants seek relief pursuant to s.39B of the Judiciary Act 1908 against decisions of the Refugee Review Tribunal affirming decisions of a delegate of the respondent refusing applications for protection visas.
The applicants are former residents of Latvia, of Russian ethnicity. The applicant wife and daughter arrived in Australia on 5 February 2001. The applicant husband arrived in Australia on 13 February 2002.
On 20 March 2001, the wife and daughter lodged an application for a protection visa. This application was refused by a delegate of the respondent on 2 April 2001.
On 21 March 2002, the husband lodged an application for a protection visa. This application was refused by a delegate of the respondent on 26 April 2002.
On 11 October 2002, the Tribunal affirmed each of the decisions of the delegate.
The applicants’ claims
The husband and the wife essentially made the same claim although each claimed some individual experiences arising out of the same set of facts. Collectively, they are referred to as "the applicants". The applicant husband is ethnically Russian and his religion is Christian Orthodox. He has no citizenship. Latvia is his country of residence. He has a Latvian alien’s passport issued in Riga in November 2001. He had previously had a USSR passport. He was self-employed as the managing director of a shoe company from May 1992 until January 2002. He left Latvia legally, obtaining a passport after changing his name.
The applicants lived in Riga from 1978. They used to own a footwear company. They had a partner (Ivan) with whom they used to bring merchandise from Russia and Poland. The business went well until it started getting visits from people who demanded money in exchange for "permission to work". Ivan started collecting information on some "big shots" and used to say that he knew how to handle them. In 1998 Ivan was killed. The applicants were told to pay all the money previously demanded (amounting to $60,000.00) which they did not have and hand over the documents.
The applicants claimed that the wife was severely beaten and the daughter nearly kidnapped. It was claimed that some men attempted to eject the wife from a moving bus. The wife and daughter left Latvia. The partner's wife and children had gone into hiding and later left Latvia. The applicant remained. The applicant husband went to the police but he said that it was made clear he had no chance of being protected as he was not a citizen of Latvia. In early August 2001, he was attacked and severely beaten. He took two months to recover. Because he was seriously in fear of his life, he came to Australia under a different name.
The applicants claimed that they were persecuted by the Latvian Mafia because of race and non-citizen status, and had been refused effective protection by the Latvian authorities. They had suffered beatings, blackmail and harassment. They had made reports to the police but they were not willing to offer protection. The applicants claimed that this lack of protection would have been a major factor in the reason they were targeted by the Mafia. The husband served in the Soviet military between 1970 for 1976. He claimed that the Latvian authorities perceive Russians who have served in the Soviet military as a threat due to the possibility of Russians challenging Latvia's authority. The husband said this would further detract from his chances of receiving effective protection.
The Tribunal's decision
The Tribunal accepted that the applicants were stateless residents of Latvia, and assessed their claims of protection against Latvia as the country of their former habitual residence.
The tribunal referred to country information. One of the reports referred to was from Australia's Department of Foreign Affairs and Trade. It said that its local post considers the OSCE Mission to Latvia (based in Riga) to be the most unbiased and knowledgeable source of information on the treatment of ethnic Russians in Latvia, and it had sought an update on the situation from a senior member of permission. The report is dated 5 August 1999. The report says:
The official advised there was very little violence against ethnic Russians or for that matter any particular ethnic or national group in Latvia. Violence in Latvia tended to be non-nationalistic, taking place in specific cities, and was associated with criminal activities, including organised crime. The official had heard of "Aizsardze" (which means guardian), which she believed was one of several semi-military private " guardian" or security organisations/companies operating in Latvia (including in Riga). These companies competed fiercely (often violently) to provide security services, solve crime and " cleanup areas”. The official said that, while these organisations were nationalistic, they had not heard of any incidents where they harassed or were violent towards any particular group. Were this to happen, the official considered that such harassment and violence would be directed towards ethnic Russians.
The official said that ethnic Russians who were not Latvian citizens had the same social and economic rights as Latvian citizens, but did not have political rights (e.g. The right to vote, the right to run for election). Non-citizen ethnic Russians had the right to police protection and employment rights. On police protection, the official noted that there were some incidents in Latvia of police violence but these were not directed against any particular group. Moreover, there were many Russian speaking police. On employment rights, the situation was complicated by Latvian language requirements on some professions with regulations that stipulate the Latvian language requirements for some 1000 professions.
The tribunal did not accept the applicant's central claim that they had been targeted for extortion by members of the Latvian mafia. The tribunal found:
a)It was not plausible that the applicant wife would not be able to identify the people who had been targeting them. After two years of threats, the applicants could not be completely unaware of the identity of the people making those demands and threats, even if they were only middlemen. The inconsistencies in the evidence given by the applicant wife at each of the Tribunal hearings was one of the reasons the tribunal rejected the applicants’ evidence.
b)The Tribunal said that an integral element of the claim was that the business partner held documents which somehow amplified the threat to the applicant. The Tribunal did not accept that the claimed documents existed. It said that they were a melodramatic element that suggested the claims had been fabricated. Accordingly, the Tribunal rejected the applicants claim that they had been repeatedly threatened to hand over the documents.
c)The Tribunal expressed doubts about the applicants’ evidence concerning the manner in which they left Latvia. It was not satisfactorily explained why the applicant stayed behind after his wife and daughter left. The evidence about what happened to the applicants’ business after the husband left Latvia, the Tribunal considered was inconsistent and implausible. The husband’s claim that he had formally changed his name to escape the threats made against him did not make sense. The Tribunal said that if one was trying to avoid criminals, one would simply adopt an alias rather than formally changing a name in the population registrar. The formal change might be counter-productive.
Given its findings, the Tribunal did not accept that the applicants ever sought police protection in relation to the alleged extortion.
Independently of the account of extortion, the applicants claimed that they were seriously harmed and were denied state protection for a convention reason, which constituted persecution in itself. Of this claim, the Tribunal said that it had serious doubts about the claims of beatings, ejection from a moving bus or attempted kidnapping. This was because of inconsistent evidence and concerns about the overall credibility of the applicants. The Tribunal did not accept that the husband or his daughter were ever harmed. It accepted that the wife had been injured in both March and October 2000, although it had strong reservations about the October incident.
The Tribunal said that, in any event, the applicants’ evidence did not establish that the police denied protection. Further, country information did not indicate that there was a lack of police protection in Latvia for Russians. The Tribunal did not accept that the police had withheld protection to the applicants because of the Russian ethnicity, and was satisfied that the applicants could avail themselves of the protection of the Latvian authorities.
The Tribunal accepted that there was an attitude hostile to Russians in Latvia, but found that the chance of the applicants suffering ethnically motivated physical harm was remote. Although there were some discriminatory provisions in Latvia, they did not constitute a risk of serious harm.
Finally, even if it could be said that the applicant husband would be persecuted in Latvia, he had a current Russian visa and was able to enter and reside in Russia. Accordingly, s.36(3) of the Migration Act was applicable so that Australia is taken not to have protection obligations to the applicant husband.
Applicant arguments
The power to grant visas is given to the Minister by s.65 of the Migration Act. The Minister is to grant a visa if satisfied of various matters. Dr Donaghue, who appeared for the applicants, argued that the authorities showed that the Minister's satisfaction was a jurisdictional fact, not a matter of discretion, and if the finding was irrational or illogical there was a failure to exercise jurisdiction.
Since the case was argued, the High Court has given judgment in Minister for Immigration and Multicultural and of Indigenous Affairs v SGLB [2004] HCA 32. Gummow and Hayne JJ (with whom Gleeson CJ agreed) said at [35-38]:
35. Section 36 of the Act provides for a class of visas to be known as "protection visas" and in sub-s (2) stipulates:
"A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(b) a non-citizen in Australia who is the spouse or a dependant of a non-citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa."
36. For the purposes of this case, only the criteria set out in s.36(2)(a) are relevant as there was no suggestion that the respondent was eligible for a protection visa on the basis that he came within s.36(2)(b).
37. Further, s.65 of the Act provides that the Minister is to grant a visa sought by valid application "if satisfied" of various matters. These include that any criteria for the visa prescribed by the Act are satisfied (s.65(1)(a)(ii)). Section 65 imposes upon the Minister an obligation to grant or refuse to grant a visa, rather than a power to be exercised as a discretion. The satisfaction of the Minister is a condition precedent to the discharge of the obligation to grant or refuse to grant the visa, and is a "jurisdictional fact" or criterion upon which the exercise of that authority is conditioned. The delegate was in the same position as would have been the Minister (s 496) and the Tribunal exercised all the powers and discretions conferred on the decision-maker (s 415).
38. The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith. To say that a decision-maker must have acted in good faith is to state a necessary but insufficient requirement for the attainment of satisfaction as a criterion of jurisdiction under s 65 of the Act. However, inadequacy of the material before the decision-maker concerning the attainment of that satisfaction is insufficient in itself to establish jurisdictional error.
This passage states the principles of law for which Dr Donaghue argued. It is therefore not now necessary to consider the earlier cases.
The grounds of review in the amended application are these:
The grounds of the application are that the Decision was made without jurisdiction or is affected by jurisdictional error.
Particulars
(a)The satisfaction of the Tribunal under s.65 of the MigrationAct 1958 was based on findings or inferences of fact which were not supported by probative material or logical or rational grounds;
(b)The Tribunal asked itself a wrong question by focusing on whether it was satisfied that particular documents existed, rather than upon whether it was satisfied the Applicants had a well founded fear of persecution for a convention reason.
Failure to deal with a real issue central to an applicants claim can amount to jurisdictional error. In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, [2001] HCA 30 at [82] The High court said:
It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal) "falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the Tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the Tribunal which reflects it."
" "Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.[citation omitted]
In Dalpatadu v Minister for Immigration and Multicultural Affairs [2000] FCA 697, the Full Court of the Federal Court consisting of Kiefel, North and Mansfield JJ considered authorities on what is a material question of fact and said that [14];
For the purpose of this line of authority, a material question of fact has been seen as one which is:
* a substantial issue on which the case turns;
* a key element of the applicant's case;
* the foundation of the applicant's contention;
* a matter central to the application;
* a matter having obvious relevance to the question whether the applicant has a fear of persecution;
* a matter capable of supporting in a significant way the claim of
the applicant.
The first ground, that findings or inferences of fact were not supported by probabitive material or logical or rational grounds, revolves around the Tribunal's finding that the applicants had not been targeted by extortionists. The Tribunal said:
First, the Tribunal did not find it plausible that the applicants could have been targeted in the way she claimed over a period of years and not, at the initial hearing, be able to identify personally the people who are targeting them. To answer that the extortionists did not "introduce themselves" was superficial. The applicants would know, as established local business people, who was operating protection rackets in the area. They would know who both the leaders and the henchmen were. Even if the applicants were being uniquely targeted because of something to do with Ivan, they could not, after two years of threats, be completely unaware of the identity of the people making them. The people demanding the money and/or documents would have to have revealed something of themselves, even if they were only middlemen, in order for the applicants to meet their demands. The applicant wife answered this question inconsistently between the two hearings. At first she said she did not know and later she named one of the local extortionists. The explanation for this was unsatisfactory, and suggests that the people who threatened her in later days were different from the former. This put quite a new dimension on claims, which previously had strongly implied that the same people were involved throughout.
The submission for the applicants is that this is pure speculation. There was no evidence before the Tribunal to support these conclusions. To the contrary, it was submitted there was the evidence of all three applicants that they had been the target of sustained extortion attempts. This evidence was rejected, it was submitted, on the basis of the Tribunal's assumptions about the modes of operation of the Latvian Mafia. It was submitted that this showed error by the Tribunal because the Tribunal did not have any ordinary human experience of the operation of the Latvian Mafia.
Dr Donaghue referred to two judgments. In W148/00A v The Minister for Immigration and Multicultural Affairs [2001] FCA 679, a full Court decision, Tambrrlan J. and R&D Nicholson J., in a joint judgment said at [67]:
There is one aspect of the approach taken by the decision maker in the present case which gives us cause for concern. It is this. Where the question of credibility is determinative of the Tribunal's decision, to simply assert that the Tribunal considers the applicants account to be implausible or highly unusual, does not constitute a finding on the question raised. Such expressions are more in the nature of observations or side comments rather than findings. The reasoning process and supporting evidence that forms the basis on which a finding that evidence should be rejected should be disclosed and clear findings made in direct and explicit terms.
In the same case, Lee J., who dissented, said at [21]:
A circumstance is implausible if it is beyond human experience as possible occurrences; that is, to say, inherently unlikely. The Tribunal had no material before it to be able to say that in Iran it was inherently unlikely that the applicant would be taken to hospital for treatment from a place of detention or could escape from custody while a patient in such hospital. As Tamberlin and R&D Nicholson J J. stated, the Tribunal engaged in speculation.
The other case is Thevendram v The Minister for Immigration and Multicultural Affairs [2000] FCA 1910. Lee J. said at [27]:
If there is material before the Tribunal that shows that the occurrence or existence of an event or circumstance relied upon by an applicant is plausible and the event or circumstance is material to the issue- whether the applicant has a well founded fear of persecution - then unless the Tribunal determines that the event or circumstance did not occur or exist, it could not purport to find that because the applicant relied upon that circumstance or event, the applicant was not credible, nor that by reason of the finding the Tribunal could not be satisfied that the applicant had a well founded fear of persecution.
In the same case, Merkel J. said at [59]:
I also have concerns that the confidence with which some members of the Refugee Review Tribunal find themselves able to make adverse findings on credibility on the basis of the evidence given by claim is implausible, incredible concoct cockpit. Anyone experienced in fact finding would be well aware that, in the usual course, fear and cogent evidence is necessary before such strong finding some made against a witness. Whether, and in what circumstances can the court set aside a decision under the act which has been made on the basis of such findings, is the next question.
The applicants’ submissions focused on the Tribunal's finding that it was implausible that the wife was unable to identify personally the people who were targeting them and said that the Tribunal could not make assumptions about the way the Latvian mafia, or criminals in Latvia, operated. I consider there are a number of flaws in the argument. The Tribunal was not making assumptions about how things were done in Latvia. It was a different type of situation to the one considered in W148. The Tribunal was looking at common experience. If people demand money or documents and expect to receive them they must reveal, as the Tribunal says, something of themselves if the demands are to be met.
The Tribunal considered that there was inconsistency in the wife's evidence between the two hearings. At the first, she said she did not know who the extortionists were. Later, she named one of the local extortionists and said that different people threatened her. The Tribunal remarked that this put a new dimension on the claims, which previously had strongly implied that the same people were involved throughout.
The Tribunal gave other reasons for disbelieving the evidence. The Tribunal found the wife's evidence about the documents which Ivan had collected was unsatisfactory. The tribunal considered it inconceivable that copies of the documents were not able to be provided. The Tribunal considered that the evidence about the way in which the applicants had left Latvia was unsatisfactory.
I do not consider that the Tribunal's reasoning is not supported by probative material or logical or rational grounds. Another Tribunal might have made another finding, but that is not the test. The particular finding which is attacked is the Tribunal's finding that it was implausible that the wife could identify the extortionists. The Tribunal gives its reasons for this. I have already described them. It does not simply make a finding of plausibility without explaining it. The two most important things are what the Tribunal saw as the plausibility of extortionists making demands without revealing something of themselves so that the demands could be met, and, what the Tribunal saw as inconsistencies in the wife's evidence. These two matters constitute a logical explanation for the Tribunal's findings concerning the claim that there was extortion.
The applicants’ arguments allege that the Tribunal's finding that the documents which it was alleged that Ivan, the business partner, had held did not exist was illogical and not supported by evidence.
The wife’s evidence was that she had never seen the documents. The wife said that they had been in the possession of Irina, Ivan's widow. Irina is in Australia and had applied for refugee status. The wife said that at the time of the hearing, Irina’s claim was before the Federal Court. The wife said that Irina had left the documents at Latvia because she could not bring them out. The Tribunal considered it implausible that copies could not be obtained. Given the importance of the documents to both Irina’s and the applicants’ claim for refugee status there is not a lack of logic in this finding, this finding of whom implausibility does not stand on its own. The Tribunal found inconsistency in the wife's description of the nature of the documents. There is certainly not such a lack of logic that there was jurisdictional error.
The applicants’ second argument concerning the documents was that the Tribunal's focus on the documents showed that it had asked itself the wrong question in dealing with the applicants claim. It was submitted that the Tribunal asked itself whether there were documents that implicated important people in corruption in Latvia, and whether the applicants had been persecuted on account of those documents. That, it was submitted, was the wrong question. The right question was whether the Latvian authorities, because of the race or nationality of the applicants, failed to protect the applicants from extortion attempts. It was submitted that the question whether the documents exist, and whether they were the reason the Mafia targeted the applicants, was ultimately not important to their claim. There was much other evidence that the applicants had been threatened and attacked. It was submitted that the reasons for this were irrelevant because the applicants’ claim to Convention status was that the State had failed to protect them because of their race and/or nationality.
The problem with this argument is that the Tribunal did deal directly with the claim that the State had failed to protect them because of their race and/or nationality. The Tribunal rejected the claim. It did so on several grounds which included its rejection of evidence of the applicants and that the applicants’ evidence did not support the proposition that the police denied protection.
Independently of its assessment of the applicants’ evidence, the Tribunal rejected the claim on the basis of the country information available to it. The Tribunal described the country information extensively. It was entitled to conclude from the information, as it did, that the Latvian authorities did not deny state protection to people who were ethnically Russian because of their race and/or nationality.
Finally, the Tribunal found that the husband, because of his current Russian visa, was able to enter and reside in Russia. This meant that s.36(3) Migration Act had the effect that Australia did not have protection obligations to him. This is an independent ground which justifies the denial of a protection visa to the husband.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Phipps FM
Associate: Sherryn Kwong
Date: 9th November 2004
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