MZXGH v Minister for Immigration
[2006] FMCA 1695
•17 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXGH & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1695 |
| MIGRATION – Protection Visa – judicial review – whether jurisdictional error – whether compliance with s.424A of Migration Act 1958 – whether additional document should be received by court. |
| Migration Act 1958, s.424A |
| VOAO & Anor v Minister for Immigration [2004] FMCA 441 Minister for Immigration and Multicultural and Indigenous Affairs v VOAO [2005] FCAFC 50 |
| First Applicant: | MZXGH |
| Second Applicant: | MZXGI |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 20 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | 25 October 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 17 November 2006 |
REPRESENTATION
| Pro Bono Counsel for the Applicants: | Mr J. Hamilton |
| Counsel for the First Respondent: | Mr R. Knowles |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The Application be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 20 of 2006
| MZXGH |
First Applicant
| MZXGI |
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicants seek judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 12 December 2005. In its decision, the Tribunal affirmed a decision of a delegate of the First Respondent refusing the grant of a protection visa to the Applicants.
Although represented at the hearing, the Applicants relied upon earlier submissions prepared when they were self-represented. Those submissions, filed 23 May 2006, were still relied upon by counsel appearing for and on behalf of the Applicants at the hearing. In addition to those written submissions, however, the Applicants' counsel also relied upon Contentions of Fact and Law filed on 20 October 2006.
Background
The Applicants are a husband and wife and are citizens of Kyrgyzstan. The Applicant husband arrived in Australia on 4 June 1997 and the Applicant wife arrived on 30 July 1997. They lodged an application for protection visas on 24 August 1998. It is common ground that the Applicant wife does not make any distinct claims to be a refugee, and accordingly it is appropriate to refer to the Applicant husband, who is the first Applicant, as the "Applicant" in this judgment.
The Applicant claimed that if he returned to Kyrgyzstan he faced a real chance of persecution. The claims in support of the application for a protection visa appear in a statement (Court Book pp.40-42). The Applicant's claim of a real chance of persecution by authorities and others was alleged to be due to his Jewish heritage. He had further claimed that he had been involved in a government program called the Mass Privatisation Program (the MPP). The Applicant claimed the MPP encountered problems in 1997 and the government sought to make him a scapegoat for the problems. The Applicant further claimed that a presidential decree declared the MPP a failure and appointed a board of inquiry. The Applicant argued that if he returned to Kyrgyzstan he faced a real chance of persecution by the authorities as a result of his involvement in these events.
A delegate of the First Respondent refused to grant the Applicants protection visas on 22 September 1998. On 9 October 1998, the Applicants applied to the Refugee Review Tribunal for review of that delegate's decision. Written submissions and further material in support of the application were then provided. In addition to the earlier claims in the application, the Applicant asserted that he faced a real chance of persecution if he returned to Kyrgyzstan due to the fact that he was a Russian-speaking person. His involvement in the allegedly failed MPP, it was claimed, might lead the government to impute him with a political opinion contrary to the government and that the government would then seek to harm him for this reason.
On 28 March 2003, the Tribunal affirmed the delegate's decision. Judicial review was sought by the Applicants before the Federal Magistrates Court and on 20 July 2004, that court ordered the first decision to be set aside and the matter remitted to a Tribunal to be determined according to law (see VOAO & Anor v Minister for Immigration [2004] FMCA 441). The decision of the Federal Magistrates Court was the subject of an appeal to a Full Court of the Federal Court by the First Respondent and that appeal was dismissed (see Minister for Immigration and Multicultural and Indigenous Affairs v VOAO [2005] FCAFC 50). It is not necessary to refer to the earlier decisions or indeed the first Tribunal decision.
The matter comes before this court after remittal to a differently constituted Tribunal before which the Applicants lodged additional documents. Apart from relying upon previous claims, the Applicant also stated he would be targeted for attack in Kyrgyzstan because in his work with the MPP he had exposed corruption of high-ranking officials. He further claimed that people would assume that he and his wife had a great deal of personal wealth and as a result would face blackmail and extortion if they were to return from Australia.
The Tribunal on the second occasion conducted a hearing on 9 September 2005 where the Applicant gave evidence with the assistance of an interpreter.
After the hearing, the Tribunal forwarded to the Applicant a letter dated 18 November 2005 pursuant to s.424A of the Migration Act 1958 ("the Migration Act") (Court Book pp.245-248). In the letter, the Tribunal invited the Applicant to comment on information which it considered would be the reason or part of the reason for its decision. Specifically, the letter stated:
“The Tribunal has identified a number of inconsistencies in the evidence provided by you at various stages, as well as information from other sources, which may lead it to question the veracity of aspects of your claim.”
The particulars of information in the s.424A letter included a reference to the MPP and what the Tribunal referred to as lack of information in relation to the existence of a decree made by the President in 1997, halting the program, and the Tribunal's discovery of a decree made in October 1997 which provided that practically all the objectives of coupon privatisation had been met with no instances of violations of the auction procedure reported in the course of the auctions. Reference was made to independent information and the absence of any evidence confirming the existence of a special decree from May 1997, halting the program or establishing the commission to investigate corruption.
Other information referred to in the letter included the Applicant's claim that enmity against him at the workplace was attributed to his Jewish ancestry. Reference was made to submissions to the current Tribunal concerning what was described as a vocal stance taken by the Applicant in relation to the issue of corruption in the state property fund, and the Tribunal pointed out that that issue had not been raised before the first Tribunal.
In the s.424A letter, the Tribunal also referred to the submissions of the Applicant in relation to his Jewish ancestry and in particular the reference made by the Applicant to his mother making inquiries regarding her Jewish background. It was noted that reference had been made to that occurring in May 1997, whilst at the Tribunal reference was made to it being probably in 1996. The relevance of that information, the Tribunal pointed out, related to when trouble started in 1997 in Kyrgyzstan. The Tribunal also referred in its s.424A letter to country information from the US State Department dealing with the question of harassment or discrimination against Jews.
In response to the s.424A letter, the Applicant lodged further documents under cover of a letter dated 30 November 2005 (Court Book p.260). That letter attached a Statutory Declaration from the Applicant dated 30 November 2005 with a number of attachments.
It is noted that the Statutory Declaration comprised 33 paragraphs and dealt with the issues raised, including completion of the MPP, the Applicant's mother's inquiries regarding her Jewish background, the Applicant concealing his Jewish background, country information regarding persecution of Jews and the Applicant's return from the United States to Kyrgyzstan.
The attachments include, relevantly for the present application, a document purporting to be a decree dated 21 May 1997. The Russian and English translation of that document appears in the Court Book at pp.270 and 271. It should be noted that the English translation at page 271 contains a heading "Extract translation from Russian into English." Hence the document is referred to by the Tribunal as an "extract". It is clear that that heading does not appear in the Russian version of the document, though an issue arises as to the manner in which the Tribunal referred to the document and whether that of itself is sufficient to constitute jurisdictional error. Reference will be made to that issue further in this judgment.
The Tribunal's decision
In its decision, the Tribunal referred to the Applicant's claims and evidence (Court Book pp.291-318). It referred to country information to which it had regard and then set out its findings. Under the heading "FINDINGS AND REASONS", the Tribunal accepted the Applicant was involved in the MPP in the early 1990s. Significantly, it then made the following finding:
“However, the Tribunal does not accept the applicant's contention that the Mass Privatisation Program experienced problems and resulted in the President proclaiming a decree declaring the program a failure and appointing a board of inquiry. The Tribunal notes the independent information which it put to the applicant regarding the successful completion of the Mass Privatisation Program. It also refers to its discovery of a decree made in October 1997 which provided practically all the objectives of coupon privatisation had been met and there were no instances of violations of the auction procedure reported in the course of the auctions. In the applicant's response to the Tribunal's s.424A letter, dated 18 November 2005 regarding this particular issue, he provided a copy of what he purported was a decree dated 21 May 1997 by the President of the Kyrgyz Republic. The Tribunal notes, according to the English translation, what the applicant attached was an extract of this particular document. Reading the document, it appeared to be out of context and difficult to understand. The Tribunal has considered this extract, including the concerns it identified above, and chooses to place more weight upon its independent information which consists of a number of more reliable sources indicating the Mass Privatisation Program was a success. The Tribunal does not accept the applicant's contention in the response to the Tribunal's s.424A letter, the Tribunal's information is not as reliable as the extract provided. It therefore does not accept the Mass Privatisation collapsed and was considered a significant failure.
(Court Book page 331)
The Tribunal then went on in its findings to refer to the Applicant's material and make a finding that it did not accept the Applicant or his group was involved in discovering irregularities in the auction process. It dealt with the other claims and made adverse findings against the Applicant. It is significant to note the Tribunal then made specific findings concerning the Applicant's Jewish ancestry. In its decision, the Tribunal states:
“The applicant also claimed his Jewish ancestry and his mother’s inquiry into her Jewish background led to him experiencing problems in the workplace. The Tribunal accepts the applicant’s mother may have made informal and occasional attempts at tracing her Jewish background, based on his response to the Tribunal’s s424A letter which raised a number of inconsistencies in the evidence he provided in relation to this issue. However the Tribunal is not satisfied his mother’s informal and occasional attempts led to any personal or professional ramifications for the applicant. It does not accept his mother’s inquiries resulted in him experiencing problems in his workplace given he stated in his submission dated 2 December 2005, it was practically impossible to establish any reliable sequence between his mother making her inquiries and the people in workplace discovering he was Jewish. The applicant also suggested people in his workplace may have been aware of this long before then, which is further evidence there was no connection between these two things as he did not claim to suffer problems in his workplace because of his ethnicity prior to his mother’s inquiries. Although the applicant claimed there must have been a connection between these two facts, based on the above, the Tribunal does not accept this.
However, even if the Tribunal was to accept the applicant may have received a number of insulting emails in which he was accused of being a Jewish auditor who was ripping the country off and sending the stolen wealth to Israel, the Tribunal does not accept these emails were of such seriousness as to amount to persecution within the meaning of s91R(1) of the Act. The applicant did not claim the nature of these emails were threatening to his life or liberty., Nor did he claim he experienced any other problems or difficulties apart from these alleged emails, which he did not disclose to anyone. The Tribunal is also not satisfied the essential and significant reason for the emails he alleged he received was his Jewish ethnicity. Although he claimed the subject matter of the emails focused on him being part Jewish, the Tribunal is not satisfied this was the motivation for the emails received. Rather it finds, on the evidence provided by the applicant in the hearing, the motivation for the emails was purely personal. The applicant explained in the hearing there were quite a few people in his workplace who believed he occupied a position he should not as he was not suitably qualified and was therefore considered an upstart. He himself stated he believed at the time he was planning to come to Australia, it was one of the people who he had some problems and disagreements on a personal level, who was responsible. On the basis of this evidence the Tribunal does not accept the essential and significant reason for the insulting emails the applicant alleged he received was his Jewish ethnicity.”
It is relevant to set out in some detail further significant findings by the Tribunal when it considered whether the Applicant would face a real chance of persecution as a result of his part-Jewish ethnicity. The Tribunal states:
“The Tribunal has considered whether the applicant would face a real chance of persecution for reason of his part Jewish ethnicity if he returned to Kyrgyzstan. It notes the article provided by the applicant from the South Region Mail Tribune, written by someone who was living in Oregon in America and was reporting on what was happening in Kyrgyzstan at the time of the riots in early 2005, on the basis of what she had been told by others who were there. However, the weight of the independent information it obtained from a variety of sources suggested Jews in Kyrgyzstan did not suffer systematic or non-random harassment or discrimination. Although there had been incidents of anti-Semitism through the distribution of anti-religion and anti-Semitic propaganda, this had been met with intense opposition by the general public and government. According to the US State Department Country Report for 2004 and the Religious Freedom Report there was no evidence of widespread societal discrimination or violence against members of different religious groups including Jews. Although it was identified in that report there had been reports in March 2002 of a mosque broadcasting calls for violence against Jewish persons over loudspeakers in Bishkek, the Tribunal notes the report provided there were no acts of violence, harassment or vandalism against Jewish people, community institutions, schools, synagogues or cemeteries during the period covered. The Tribunal also notes in relation to the particular incident cited and discussed above, it appeared the State responded and provided adequate protection by investigating the incident and having mosque leaders apologise to the local Jewish Cultural Society. The Tribunal put this particular country information from the State Department to the applicant for comment in its s424A letter dated 18 November 2005. The country information provided by the applicant in his response does not persuade the Tribunal that Jews were being targeted for persecution for reason of their ethnicity or that the State had not provided adequate protection in response to instances of anti-Semitism which have occurred. In recent articles following the riots in early 2005 it was stated Jews were worried about the possible economic consequences of the revolution which toppled President Akiev. However there was no immediate threat to the community and Jews had not been the target. The Tribunal has also taken into consideration the report provided by the applicant in relation to the attack on his mother by unidentified people on 25 March 2005. It notes in the report from the Interior Ministry Office there is no mention of this attack being related to the applicant’s mother’s Jewish ethnicity. In the copy of the extract from medical history, it was stated the applicant’s mother was assaulted in the street by a crowd of unidentified persons of indigenous ethnicity, who while punching and kicking her yelled ‘Get out of here! Go to Russia!’. The Tribunal accepts the applicant’s mother may have been subjected to an assault at this time given the violence and upheaval which was taking place in the country during the time of the riots. However the Tribunal finds the applicant’s mother was afforded adequate state protection given she was able to lodge a report with the Criminal Investigation Department in the Oktyabrskiy District Interior Ministry Office in Bishkek. Although the applicant claimed in the hearing it was a standard formal response by the authorities, there is nothing to suggest the applicant’s mother was denied protection from the authorities. The Tribunal notes the applicant claimed his mother had moved to the country for economic and safety reasons. In light of evidence the applicant provided, the Tribunal is satisfied the applicant’s mother could be afforded state protection in the future if her safety was at risk. On the basis of the independent information discussed above and the fact the applicant has not been subjected to harm amounting to persecution in the past, the Tribunal does not accept the applicant would face a real chance of persecution for reason of his ethnicity if he should return to Kyrgyzstan.”
In considering the claim by the Applicant that he faced a real chance of persecution by reason of being a Russian speaker or belonging to a particular social group namely, Russian-speaking nationals in Kyrgyzstan, the Tribunal made the following finding:
“Similarly, the Tribunal does not accept the applicant would face a real chance of persecution for reason of him being a Russian speaker or belonging to a particular social group ‘Russian speaking nationals in Kyrgyzstan’. The Tribunal notes when it asked the applicant if he had experienced any problems because he was a Russian speaker, he claimed when he was an interpreter with consultants who worked with agricultural reform, people in positions of power and official representatives to the government he met in regional areas, would refuse to talk claiming they needed a Kyrgyz interpreter despite the fact they could speak good Russian. The Tribunal does not accept the trouble the applicant experienced during the course of his responsibilities as an interpreter constitutes persecution. The applicant did not claim to have experienced any other difficulties or trouble due to him being a Russian speaker. The Tribunal has considered the report from the Interior Ministry Office in relation to the arson attack on his father’s studio. However it notes there is nothing in this document to suggest the motivation for this attack was the fact the applicant’s father was identified as a Russian speaker. The Tribunal also notes according to this report the Interior Ministry Office had instituted criminal proceedings and an investigation was being carried out. Although the applicant claimed this was a standard formal reply and merely a template which was filled out by ministry officials, the Tribunal is not satisfied that the authorities had not responded to the applicant’s father’s compliant. It is satisfied they provided him adequate state protection. The Tribunal refers to the independent information it put to the applicant in the hearing which suggested ethnic Russians or Russian speakers were not the target of systematic or non-random harassment or discrimination in Kyrgyzstan. In an article from 2004 it was identified there was no overt hostility of discrimination towards Russians. However in a report from April 2005 there were reports of an alleged leaflet campaign advocating the taking away of apartments from Russians however not one leaflet had been confiscated by authorities, suggesting the whole thing was a rumour but despite this the authorities had taken action to diffuse the tension in the country as a result. On the basis of the independent information, which suggests there may be some underlying hostility or ill-feeling towards ethnic Russians or Russian speakers however there has been no systematic or non-random harassment or discrimination, and the applicant’s own experiences in Kyrgyzstan, the Tribunal is not satisfied there is a real chance he would face persecution for reason of his alleged membership of any particular social group of Russian speakers.”
It is not in issue that the independent information referred to in relation to Russian speakers was found in country reports from 2004 (Court Book pp.324-328). It will be noted in the detailed findings set out above that the Tribunal states that it referred to the independent information "it put to the Applicant in the hearing", and that is evident from the Tribunal's decision where specific reference was made to the reports (Court Book pp.315-316).
It is common ground that country information relating to ethnic Russians or Russian speakers was not included in the s.424A letter.
The Issues
The issues raised in the application and the Applicant's submissions together with the submissions of the Applicant's counsel suggest that jurisdictional error had occurred in the manner in which the Tribunal dealt with the specific claims of Jewish ethnicity and persecution towards ethic Russians or Russian speakers. Criticism was made of the adverse conclusions drawn by the Tribunal in relation to the decree and the success or otherwise of the MPP.
It is relevant to deal with the question of the decree and the manner in which the Tribunal characterised the document it referred to as an "extract". As set out in the Tribunal's findings and reasons, it is clear that it preferred independent information to the document it describes as the extract relied upon by the Applicant.
It was submitted on behalf of the Applicant that the failure of the Tribunal to refer to the document as an "extract" in its s.424A letter amounted to a jurisdictional error.
It was submitted by the First Respondent's counsel, however, that the reference to "extract", even if a misdescription, was simply a reference to the heading on the document as submitted by the Applicant. Further, it was submitted that that description of itself did not form part of the decision but rather the Tribunal preferred to rely upon other information rather than the content of the document supplied by the Applicant. Hence it was not information of a kind which would be required to be referred to by the Tribunal in a s.424A letter.
I agree with the First Respondent's submissions in relation to the document the Tribunal referred to as an "extract". It is clear from the decision of the Tribunal set out earlier in this judgment that whilst it described the document as an "extract", I am satisfied that description of itself did not cause the Tribunal to prefer independent information. If the Tribunal had referred to the document as a "mere extract" and if it then highlighted the absence of detail in the document beyond expressing dissatisfaction with it appearing to be out of context and difficult to understand, then it is possible that reference to the description should properly have been included in a s.424A letter.
In the alternative, however, it was further submitted by the First Respondent that in any event, the document was provided by the Applicant to the Tribunal and therefore is not information of a kind which would attract the operation of s.424A of the Migration Act.
I also agree with that submission.
Further criticism was made of the Tribunal's reference to country information when dealing with discrimination towards Russians or Russian speakers. It was submitted on behalf of the Applicant that the country information concerning this issue ought properly have been part of the s.424A letter.
The First Respondent submitted that the reference to that country information was clearly not included in the s.424A letter and does not attract the attention of that section in circumstances where the information is not specifically about the Applicant. Hence, it was submitted s.424A(3)(c) applies. I agree with that submission as clearly the country information is not specifically related to the Applicant. In any event, I am otherwise satisfied that there could not be any denial of procedural fairness in circumstances where, during the course of the hearing, the Tribunal put to the Applicant the content of that country information and received an appropriate response.
Further claims were pursued concerning the adverse findings by the Tribunal in relation to the MPP and allegations that the Applicant had been involved in uncovering corruption in the privatisation process. In my view, those criticisms of the Tribunal decision do not constitute jurisdictional error. The Tribunal made factual findings reasonably open to it after considering in some detail the claims and evidence submitted to it by the Applicant. Accordingly, any criticism of the Tribunal's reasoning arising out of those adverse findings does not in my view provide any or proper basis upon which this court is able to conclude that there has been jurisdictional error.
It is noted that the Applicant's submissions to a large event, in my view, seek to challenge the fact-finding process and in a sense join issue with the Tribunal's findings in what effectively may be regarded as criticism of the weight given to certain material and the rejection of the Applicant's claims. The criticisms made in the Applicant's submissions seek effectively to reagitate factual issues which, upon judicial review, is impermissible. The assessment of the material and the weight given to it by the Tribunal, albeit resulting in adverse findings for the Applicant, does not reveal any jurisdictional error.
It is further noted that the Applicant sought to rely upon the document referred to as an "extract" by providing an identical document though without the heading "Extract translation from Russian into English."
In my view, it is not appropriate for the court to receive the additional document as arguments have been advanced and dealt with concerning the reference by the Tribunal to the document as being an "extract". In any event it is appropriate for the court to deal with material then before the Tribunal rather than permitting the Applicant to rely upon additional material at this hearing when, as I have found, the mere description of the document was not of itself part of the reason for the Tribunal's adverse decision in relation to the decree.
Conclusion
It follows for the reasons given that the application should be dismissed with costs.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 17 November 2006
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