MZXAN v Minister for Immigration
[2006] FMCA 847
•30 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXAN v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 847 |
| MIGRATION – Refugee Review Tribunal – applicant Claimed to be stateless – statelessness not sufficient for protection visa. |
| Migration Act 1958, ss.36(2)(a), 36(2)(b), 91R, 477(1A) |
| Ali-Anezi v Minister for Immigration & Multicultural Affairs [1999] FCA 335 and 556 Diatlov v Minister for Immigration & Multicultural Affairs [1999] FCA 468 Husein Ali Haris v Minister for Immigration & Multicultural Affairs [1998] FCA 78 NABE vMinister for Immigration & Multicultural Affairs [2004] FCAFC 263 at [68] Minister for Immigration & Multicultural Affairs v Savvin& Ors [2000] FCA 478; (2000) 98 FCR 168 QAAE of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 46 Revenko v Secretary for the Home Department [2003] WLR 1519 (CA) Rishmawi v Minister for Immigration & Multicultural Affairs [1997] 77 FCR 421 Savvinv Minister for Immigration & Multicultural Affairs & Ors [1999] FCA 1265 |
| Applicant: | MZXAN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG708 of 2005 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 25 January 2006 |
| Date of Last Submission: | 30 March 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 30 June 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr John Gibson |
| Solicitors for the Applicant: | Haag Walker Lawyers |
| Counsel for the Respondents: | Ms Sharon Moore |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG708 of 2005
| MZXAN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This judgment arises from an application filed 10 June 2005 seeking review of a decision of the Refugee Review Tribunal (the second respondent) which affirmed the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the first respondent) to refuse to grant a protection visa.
The applicant argues that the Tribunal’s decision handed down on 21 June 2004 was affected by jurisdictional error on three different grounds, namely that the Tribunal:
a)Made an error of fact in misunderstanding or misconstruing a claim advanced by the first applicant and based in its conclusion in whole or in part upon the claim so misunderstood or misconstrued in that it failed to deal with the claim that the First Applicant’s citizenship and/or nationality of Zambia was lost, lapsed or expired in 1997;
b)Asked the wrong question, identified the wrong issue and/or failed to deal with a central issue in asking itself whether the Zambian authorities had an interest in divesting the First Applicant of her nationality when her case that her citizenship/nationality had lapsed, expired or been lost in 1997 and she had thereby been arbitrarily deprived of it contrary to Article 15 of the Universal Declaration of Human Rights and had suffered serious harm pursuant to s.91R of the Migration Act 1958.
c)Exceeded its jurisdiction or constructively failed to exercise jurisdiction in that it made an express finding that was not supported by evidence or was without any supporting probative evidence and that finding was a critical step to the Tribunal ultimate conclusion that the applicant did not have a well founded fear of persecution for a Convention reason and/or that the material upon which the Tribunal relied was so inadequate that the only inference open is that it applied the wrong test or was not satisfied in respect of the correct test that it was bound to apply.
On 14 July 2005 the first respondent filed a Notice of Objection to Competency on the basis that the application was filed outside the time limit set out in s.477(1A) of the Migration Act.
Background
The applicants are husband and wife. The first applicant (the “applicant wife”) claims to be stateless and a former resident of Zambia. The second applicant (the “applicant husband”) is a citizen of Zambia.
The applicant wife was born in Zambia on 22 April 1956 to parents who were born in Tanzania but had lived in Zambia from 1953. The applicant claims that in 1977, Zambian law allowed her to become a Zambian citizen once she attained 21 years of age. At this time she was advised to and completed a “Declaration” divesting herself of allegiance to Tanzania.
The applicant wife first came to Australia on 9 January 1990 in order to study theology. The applicants have resided in Australia since that time, except for return travel to Zambia and other countries.
Both applicants arrived on valid Zambian passports containing a valid visa. The applicant wife arrived in Australia on a passport issued on 18 December 1988 which was valid until 18 December 1999. The applicant wife claims that on her last trip to Zambia in 1997, she was advised that her Zambian citizenship had expired. The applicant wife has written a number of letters in an attempt to have her citizenship re-issued without success.
On 31 July 2002, the applicant wife applied to the first respondent for a protection visa. The applicant husband and their children (1 born in Zambia, 2 born in Australia) were included in the application as members of the wife’s family unit. On 27 February 2003 a delegate of the first respondent refused to grant a protection visa to the applicants.
On 14 March 2003, the applicants applied to the second respondent for a review of the decision made by the first respondent’s delegate. The applicant gave oral evidence before the Tribunal on 18 May 2004.
On 21 June 2004, the second respondent handed down its decision affirming the refusal of the first respondent’s delegate to grant the applicants a protection visa. In making its decision, the Tribunal considered the applicant’s claims and found:
FINDINGS AND REASONS
There is no question about the citizenship of the second applicant in this case — the applicant husband; he is a citizen of Zambia. The Tribunal is of the-view that this also applies to the principal applicant—the applicant wife: there is no indication in any of the correspondence from the Zambian Government that she has been stripped of her Zambian citizenship. There is currently some “anomaly” as the Government puts it in relation to her official documents which it wants to c1arify. The applicant was born in Zambia, lived there continuously for 34 years, has parents who lived there throughout that time and still reside there, has a Zambian National Registration Card, has voted in Zambian elections, was issued with a Zambian passport in 1988 and travelled to and from Zambia in 1997 on that same passport. Zambia is her country of habitual former residence. The Tribunal assesses the applicants’ claims against Zambia.
The applicant’s claim is that she is “stateless” — in other words, that she has been dispossessed in some way of her Zambian citizenship and that this is persecutory because she no longer has the protection of any State.
The evidence before the Tribunal does not support her claims. The Tribunal has listed in the first paragraph of this section the various indications of the applicant’s citizenship of Zambia. It further notes that the applicant engaged with the Zambian Government between the time that her daughters were born (1990 and 1992) and the time that the family visited Zambia (June 1997), because both girls were added to her passport as dependent children, enabling them to travel with the applicant. The applicant said this in oral evidence, and the passport numbers which are found on the movements database confirm that this is the case. Hence there were no doubts at all cast about the applicant’s citizenship up to and including her travel to Zambia in mid-1997.
The problem presented itself when both applicant’s applied for new passports via the Zambian High Commission in London. It is unclear when they did this, other than that it was some time in 1998. The Tribunal notes that the applicant’s husband was issued with his new passport on 31 January 1999; and a letter sent from the Lusaka passport office to the Zambian High Commission in London (dated February 1999) refers to the applicant’s passport application and her need to “submit documentary proof of parents’ status at the time of his [sic] birth in Zambia”. However, rather than addressing this very specific request, the applicant instead wrote to the Passport Office in Lusaka, Zambia, castigating it for a lack of response to a letter she had written in October 1997. She refers to being asked for “documentary proof of my citizenship” and proceeds to make a number of points about Form 10 which she signed when she turned 21.
In the Tribunal’s view, the applicant’s have been arguing at cross-purposes with the Passport Office, the process become more entangled by being conducted via two foreign embassies (in the UK and Japan) and the short-term intervention of an honorary consul in Australia. Neither party — the Passport Office or the applicant’s — responds speedily to the other.
The Tribunal went on to conclude:
Although the Tribunal has not found any independent evidence on this topic, it is prepared to accept that in the period following the 1996 constitutional amendments about Zambian parentage for presidential candidates, there was heightened interest in parentage generally among the Zambian authorities. Hence it accepts that in making enquiries relating to her National Registration Card in 1997, and in applying for a new passport in 1998, the applicant may have been expected to supply some further information about her parents’ status in Zambia at the time of her birth in 1956 (the very question that the Passport Office asked in its letter of early 1999). However, the Tribunal is not of the view that this is an impossible task — especially when both her parents are still living legally and untroubled in Zambia. The highest court in Zambia has upheld Dr Kaunda’s Zarnbian citizenship, despite his Malawian parents. The applicant is in the same boat: born in Zambia of parents from another African country.
In any case, there is no indication that the Zambian authorities have any interest in divesting the applicant of her citizenship, or have denied her their protection in any way. Its UK embassy and the local honorary consul have been helpful throughout the meandering process. The last piece of correspondence from the Zambian authorities is the letter sent in September 2002— a letter full of graceful apology and practical advice. The Permanent Secretary advised that tie “promise to resolve this problem once and for all” offering a restricted passport (enabling travel) while the citizenship matters are “looked into”. There is no indication whatsoever that the principal applicant will be denied the right to return to and reside in Zambia. Nor is there any question of this with respect to the applicant husband, whose current passport (the one on which he travelled home in 2001) is valid until 2009.
In the Tribunal’s view, the rather curt response of the applicant’s husband to the Permanent Secretary’s letter was indicative of the fact that the applicants did not have a genuine desire to resolve the matter. Indeed, by this time, they had applied for protection visas on the grounds that the applicant wife was being denied her citizenship rights — and therefore it was not in their interests to resolve the matter.
The Tribunal does not find that any harm, let alone harm amounting to persecution, has befallen the principal applicant nor the second-named applicant in the past for a Convention reason, and that the chance that such harm will befall them in the reasonably foreseeable future is remote. It follows that the Tribunal is not satisfied that either applicant has a well- founded fear of persecution for a Convention reason. They are not refugees.
CONCLUSION
Having considered the evidence as a whole the Tribunal is not satisfied that the applicants are persons to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) of the Act for a protection visa. In these circumstances they cannot satisfy the alternative criterion set out in s.36(2)(b) of the Act and cannot be granted protection visas.
In substance the grounds for the application are that the tribunal didn’t properly consider relevant material before it when determining whether or not the applicant had been denied citizenship in Zambia, and thereby had failed to consider whether or not she fell within the definition of a refugee under the Act.
The applicant argued that the tribunal erred in its findings and reasons about the applicant wife’s citizenship problems with respect to Zambia when the tribunal stated:
The problem presented itself when both applicants applied for new passports via the Zambia High Commission in London.
The tribunal went on to state that it was unclear when the applicants applied for new passports, other than it was some time in 1998.
The applicant says that this misunderstood her case which was that her citizenship or nationality had lapsed, expired or been lost in 1997.
The tribunal had earlier outlined that in 1997 she had travelled to Zambia on a Zambian passport and then returned to Australia. However, further on in the decision, it is clear that the tribunal considered issues that had arisen in 1997, referring to a letter that the applicant wife wrote to the passport office in Lusaka, Zambia in October 1997, and that in 1996 political issues were raised in Zambia about citizens whose parents were foreign born.
It does not appear to me that these statements by the tribunal were not open to it on the evidence before it, rather the comments reflect the fact that it was not entirely clear when citizenship lapsed or expired (if at all). The statements of the tribunal are consistent with the general tenor of the material before it.
The nature of the issue before the tribunal did not call for specific findings of fact as to precisely when the citizenship of the applicant had lapsed or expired. The tribunal clearly considered the relevant material before it and made findings on this matter. I am not satisfied that this matter is, of itself, a basis for judicial review.
The applicant wife also complains that the tribunal acted contrary to the evidence when finding that the applicant wife has not in fact lost her citizenship, in the sense of not being able to renew the citizenship. Whilst the language used in this part of the reasons is not particularly precise, it was clear that the tribunal was of the view that the applicant wife would be able to have her citizenship renewed or revived.
This finding required a review of the correspondence between the applicants and the authorities in Zambia. That correspondence does not reflect well on the applicants or the Zambian authorities. The course of the correspondence, generally speaking, is as follows:
a)29 May 1999: the applicant wife writes to the passport office in Zambia complaining that she had not received a reply to a previous letter (written on 6 October 1997) with respect to her lapsed Zambian citizenship. She complains that she is being asked for documentary proof of her citizenship even though she had already forwarded one document. The letter is somewhat argumentative.
b)27 August 1999: the applicant’s husband writes with respect to her citizenship in similar terms.
c)6 December 1999: the applicant’s husband writes to the President of Zambia complaining there had been no response with respect to the issue.
d)10 April 2000: the applicant's husband writes to the Zambian High Commissioner in Tokyo with respect to the issue.
e)19 April 2000: there is a letter from the Republic of Zambia Consulate in Sydney advising:
Thank you for sending all the correspondence concerning your wife’s passport. The treatment she has received is absolutely disgraceful and nothing less than an insult to you both. I am extremely sorry and feel very frustrated that I have not been able to help. You will find that Mr Shula Musakanya, the first secretary in Toyko is a very good man, and will, I am sure, do all he can to help.
f)18 September 2002: the Ministry of Home Affairs of Zambia wrote to the applicant husband advising that the applicant wife should apply for a restricted passport while the issue of citizenship is being looked into. That letter enclosed forms for completion to apply for a restricted passport. The letter concludes with this statement:
Once again, I regret the trouble you and your dear wife have gone through and promise to resolve this problem once and for all.
g)The applicant’s response to this, as sent by her husband, is :
Thank you for your letter dated September 18, 2002, in which you offered to have my wife be issued with a restricted passport before looking into her citizenship issue. Thanks too for the forms which you sent which do not have a government number and are not on a government stationery.
Before she signs the forms, could you please, let us know what the restricted passport would mean for her and indeed for her freedom. Also, we would appreciate if you could send us forms on a government stationery and with a government number. This is because if your present officers have been able to reject her genuine Zambian government document, how will future officers accept documents which are no found on a government stationery and with a government number?
Thanking you in advance for your response.
The tribunal described the difficulties in their decision as follows:
She claims that she has not been issued with a passport and the documents that they wish her to produce are impossible — she claims she has to produce a document relating to her father’s entry into Zambia more than fifty years ago. The Tribunal put it to her that she was experiencing a bureaucratic bungle that was undoubtedly frustrating, but not persecutory in a Convention sense. The applicant said that has embarrassed the Zambian government with her public revelations about the way she has been treated and that the government will treat her adversely as a result of this. They might also mistreat her elderly parents who are still in Zambia.
The tribunal records that the harm suffered by the applicant, as alleged the hearing, was that the government of Zambia was discriminating against her on the grounds of nationality (being of Tanzanian decent) and that this should be considered serious harm. She also explained that she was concerned about her parents but advised that they had experienced no problems as yet. No specific concern with respect to persecution was raised, other than the difficulty with respect to the passport (see page 12 of the decision).
On the basis of this material it appears to me that it was open to the tribunal to make the findings that it did. It was also open to the tribunal to make the finding of fact that it was not an impossible task for the applicant to supply the further information requested by the Zambian authorities with respect to her citizenship. To the extent the tribunal may be alleged to have erred in its fact finding it would still not amount to jurisdictional error: see NABE vMinister for Immigration and Multicultural Affairs [2004] FCAFC 263 at [68].
In these circumstances the tribunal’s conclusion was open on the material and therefore no judicially reviewable error has been identified.
Even if I am wrong in this conclusion it appears that the application was bound to fail in any event.
At the hearing I raised with Counsel for the applicant the practical question of what would occur if the applicant was not able to obtain a passport or citizenship documents with respect to Zambia in the future.
It was argued that the claim by the applicant was not put on the basis that statelessness, of itself, would found a claim for a protection visa under s.91R of the Migration Act, rather that the arbitrary revocation of her citizenship was a breach of her fundamental human rights.
It is difficult to see that this issue is, as a matter of principle, different from that arising in Minister for Immigration and Multicultural Affairs v Savvin& Ors [2000] FCA 478; (2000) 98 FCR 168. Whilst at first instance ([1999] FCA 1265) Dowset J concluded that loss of nationality per se was sufficient to satisfy the requirements for a protection visa. The Full Court (Spender, Drummond and Katz JJ allowed an appeal, concluding that Article 1A(2) of the Convention should be construed as including the requirement that a stateless person outside of their country of habitual residence also hold a well founded fear of persecution.
The Full Court rejected the proposition that statelessness, of itself, is sufficient to satisfy the definitions. The Full Court decision is consistent with earlier single judge decisions in Rishmawi v Minister for Immigration and Multicultural Affairs [1997] 77 FCR 421 (per Cooper J), Husein Ali Haris v Minister for Immigration and Multicultural Affairs [1998] FCA 78 (per Moore J), Ali-Anezi v Minister for Immigration and Multicultural Affairs [1999] FCA 335 and 556 (per Lehane J), Diatlov v Minister for Immigration and Multicultural Affairs [1999] FCA 468 (per Sackville J).
Counsel for the minister also relied upon Revenko v Secretary for the Home Department [2003] WLR 1519 (CA), where the Court of Appeal in England reached a similar conclusion. The same result has flowed more recently in QAAE of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 46.
The applicant also faced the difficulty of satisfying s.91R of the Act, which provides:
91R Persecution (1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
(2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c)significant physical ill treatment of the person;
(d)significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(3) For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
It is difficult to conclude that any of the matters raised could satisfy s.91R, even if the applicant’s case were accepted that the Zambian authorities had arbitrarily denied her citizenship.
In the circumstances I must therefore refuse the application for judicial review.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate:
Date: