MZYMO v Minister for Immigration - [2011] FMCA 793

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYMO v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 793

MIGRATION – Application for review of decision of Refugee Review Tribunal – operation of s.36(3) of the Migration Act 1958 (Cth) – application dismissed with costs.

Migration Act 1958 (Cth), ss.36(2)-(5), 91R(1)(a), 91R(2)

Applicant A & Anor v MIEA & Anor (1997) 190 CLR 225
Minister of Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1
NBLB v the Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1051

Applicant:

MZYMO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 647 of 2011

Judgment of:

Hartnett FM

Hearing date:

10 October 2011

Delivered at:

Melbourne

Delivered on:

11 November 2011

REPRESENTATION

The Applicant:

Appeared in person

Counsel for the Respondents:

Ms Symons

Solicitors for the Respondents:

Clayton Utz

THE COURT ORDERS THAT:

The application filed 10 May 2011 is dismissed.
The applicant to pay the first respondent’s costs and disbursements fixed in the sum of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 647 of 2011

MZYMO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 3 May 2011. The Tribunal affirmed a decision of the first respondent by his delegate not to grant the visa applicant a Protection (Class XA) Visa. The applicant relied upon his application and an affidavit filed 10 May 2011.
The applicant did not file submissions as ordered by order made 1 June 2011 by Registrar Allaway. The grounds of the application as set out by the applicant were as follows: “1. Requires protection because life at risk”. The affidavit sworn by the applicant had only one paragraph which stated “Protection because his life is at risk in Romania”. The first respondent filed a response on 20 May 2011 opposing the application and filed submissions on 26 September 2011 along with a court book on 13 August 2011.
The applicant was born on 5 May 1977. He is now aged 34 years and a citizen of Romania and Moldova. The applicant was a bus driver by occupation in Moldova prior to coming to Australia. He has a wife and daughter who reside in Moldova. On 22 August 2010 he arrived in Australia on a tourist visa. His visa was valid until the 22^nd day of November 2010. On 29 September 2010, the applicant applied to the Department of Immigration and Citizenship (“the Department”) for a protection visa. On 13 December 2010, he attended an interview with an officer of the Department and on 23 December 2010 by written notification, the delegate of the first respondent refused the application. On 1 February 2011, the applicant applied to the Tribunal for review of the delegate’s decision. By a letter dated 4 May 2011, the Tribunal informed the applicant of its decision to affirm the earlier decision not to grant the applicant a Protection (Class XA) Visa.

The applicant’s claims

In his protection visa application form, the applicant claimed that he had left Romania and Moldova because the countries were under Mafia control and that he had been forced to pay protection money monthly to the Mafia. The applicant claimed that if he failed to pay the protection funds, he would be beaten up and put in hospital and that the police were part of the Mafia which had the support of the authorities.
During his interview with the delegate, the applicant substantially added to his claims. He said that he used to live and work in Sachel village, Romania, where he was offered a job logging. He worked there for three years before the employer company started defaulting in payment for their work. He reported this to the local police, who did nothing, so he and a friend went to Bucharest to report the company.
An inspection authorised by officials in Bucharest discovered that the logging was, in fact, illegal. In the meantime, he had relocated to Moldova and began work as a taxi driver. He then commenced working for an urban transport company, using his own minibus. He claims to have received a call from an unknown person from Sachel, Romania, who informed him the three men from the illegal logging company had been prosecuted because of him “whistle‑blowing”, and that he should pay compensation for this.
He refused and, soon after, was beaten up by two Romanians one night. He went to the police the following day, as he had received a broken cheek bone, but nothing was done. He provided, in relation to this incident, a translated police statement and original, and a photo of himself with a black eye and bruising on his face. The applicant stated that he then received a further call and was told to pay up, or else his family would also be harmed. He began paying moneys each month and continued to do so for two years.
When he complained about the quantum he was required to pay, his “protection fee” went up. A friend bought his minibus and he relocated his family to his mother’s village, before departing to Australia.

He claimed the Romanian Mafia had connections all over Europe and there were Romanians everywhere. He claimed he did not come to Australia for money, rather, he came to Australia for protection.

Tribunal hearing

The Tribunal had before it the Department’s file relating to the applicant. The Tribunal also had regard to the material referred to in the delegate’s decision and other material available to it from a range of sources. The Tribunal invited the applicant to attend a hearing before it and on 25 February 2001 the applicant appeared before the Tribunal to give evidence and present argument.
The applicant’s registered migration agent was present at the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Romanian and English languages. At the hearing, the Tribunal indicated to the applicant that the matters in issue were:
·whether there was any Convention basis for the harm the applicant feared; and
·whether, even if there was a Convention basis for the harm feared, the applicant would face a real chance of serious harm in the Western European countries he, as an EU citizen was entitled to reside in, as opposed to a remote possibility of such harm.
During the Tribunal hearing, the applicant told the Tribunal he had further information in support of his claim on a computer disk, but that it was not in English. He explained that the information was to the effect that, in April 2009, there was a mini‑revolution in Moldova, and the applicant transported some of the demonstrators in a minibus which he owned.
The applicant claimed that a number of people were killed during the demonstration, and that he was at risk of persecution by the Moldovan authorities because he had transported the participants. He further claimed that, since he had left Moldova, there had been occasions where people had come to his former home asking for him. The friend whom he left in charge of his minibus business had been told that if the applicant does not return, he will have to pay the money being demanded.
The applicant told the Tribunal the friend had not acceded to the man’s demand for payment but, nonetheless, the applicant had no other option but to sell the minibus. At the Tribunal hearing, the applicant was asked whose idea it had been for him to come to Australia. He replied that he had thought hard about where to go. He considered that Europe was out of the question, as there was a network of Mafioso there.
He thought about going to the United States, but had heard that was a very dangerous place with lots of shootings, whereas he wanted a quiet life. He claimed to read “a lot on the internet, and had noted that there are many nationalities living in Australia in peace and quiet and decency. Now, having lived here for six months, he cannot believe how all these different groups are able to live together in peace; he can’t believe it is possible, and never thought it would exist (paragraph 49 of the Tribunal reasons).
The applicant was also asked why he could not relocate in Europe.

He replied that there were Romanians everywhere. If he sold everything and moved elsewhere in Europe, he feared he eventually would be found. When asked whether he was aware of any other example of Romanians being tracked down by the Mafia to support this claim, the applicant conceded he was not (paragraph 51 of the Tribunal reasons).
The Tribunal noted the following:
a)Romania joined the EU on 1 January 2007. In order to fulfil the accession requirements set by the EU, the Romanian Government undertook measures throughout 2006 to eradicate corruption. Despite some reform efforts, Romania was still beset by a high level of corruption and fraud, as set out in a European Commission report on Romania in 2008;
b)the most recent US Department of State human rights report on Romania, released in February 2009, indicated that corruption is still widespread, with the government’s lack of effective implementation of the prescribed criminal penalties for official corruption a significant problem;
c)the latest US Department of State report on human rights practices in Moldova, published on 8 April 2011, noted police corruption remained a serious problem, corruption in the educational system was widespread and the government acknowledged that corruption was a major problem.
d)that nationals of Romania had in some countries, a restricted ability to work. In his reasons, the Tribunal member said as to that in paragraphs 61 and 62 therein:
“61. As noted in the delegate's decision,
[t]he Treaty of Maastricht made nationals of all European Union (EU) Member States citizens of the EU.
The rights attached to this citizenship were confirmed by the EU Charter of Fundamental Rights, signed and proclaimed in Nice in 2000, and Council Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely (the ‘Free Movement Directive’), which entered into force in April 2006. On 1 January 2007 Romania joined the EU.
62. However, some countries have imposed limitations on the work rights of the nationals of some other EU countries, including the following, accessed from the Europa website at of Romania and Bulgaria
You have the right to work – as employed or self-employed – without a work permit in: Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, Greece, Hungary, Latvia, Lithuania, Poland, Portugal, Romania, Slovakia, Slovenia, Spain and Sweden.
Until 31 December 2013, your ability to work might be restricted in: Austria, Belgium, France, Germany, Ireland, Italy, Luxembourg, Malta, The Netherlands, United Kingdom. To work in these countries, you will need a work permit. Some countries have simplified their procedures or reduced restrictions in some sectors or for some professions.
Norway, Iceland and Liechtenstein impose full restrictions.
Switzerland can impose restrictions until 31 May 2016.
Before you try to work in a country that still imposes restrictions, you need to seek information on the applicable procedures.”

Findings of the Tribunal

The Tribunal found that the applicant was a national of Romania and, therefore, a citizen of the EU, and also a national of Moldova. The Tribunal member noted that the applicant had applied for a protection visa, seeking to invoke Australia’s obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
A preliminary issue arose for the Tribunal which was that the applicant’s country of nationality, Romania, was a member of the EU. Consequently, s.36(3) of the Migration Act 1958 (Cth) (“the Act”) needed to be considered, as its operation could relieve Australia of any protection obligations it might otherwise have had toward the applicant because his EU citizenship gave him the right to enter and reside in other EU countries.
The Tribunal accept the applicant’s claims to have been targeted by Romanian criminals as true, and found both that he had been persecuted in the past and that he faced a real chance of experiencing further serious harm, capable of amounting to persecution, at the hands of Romanian criminals, in the event that he returned to Moldova or Romania in the reasonably foreseeable future.
The Tribunal also considered the applicant’s claim at the hearing that he would be at risk of persecution by the authorities in Moldova, apparently for reason of his imputed political opinion, because he transported some people to a demonstration in his mini-bus. However, it was noted the applicant also conceded the chance of this happening was slight. The country information confirmed that there was an uprising of sorts at this time in Moldova and the Tribunal accepted that the applicant, as a mini-bus driver, may well have transported some of the people involved. However, it noted that he did not claim to have experienced any adverse consequences as a result of this indirect participation in these events, despite having remained in Moldova for a considerable period after the uprising, and the 2009 US Department of State report indicated that although there was a serious crackdown in response to the demonstrations, both the demonstrations and the arbitrary arrests soon ceased. The Tribunal therefore did not accept that the applicant faced a real chance of experiencing serious harm for this reason, if he returned to Moldova in the reasonable foreseeable future.
Under the heading “Convention Nexus – Risk from Romanian Criminals”, the Tribunal noted that the applicant had not clearly identified any Convention basis for the harm feared, but that it was implicit from his claims that he may be at risk of persecution because of his membership of a particular social group, comprising whistleblowers in Romania.
Whilst the Tribunal was prepared to accept that such a group did exist and that it satisfied the Convention definition of a “particular social group,” it found that there was no evidence to support the proposition that the applicant was targeted for reason of his membership of the group or for reason of his membership of any other group. The Tribunal found the evidence of the applicant’s claims suggested that he was targeted in his individual capacity. The Tribunal said, at 79:

“…In other words, the motivation of the persecutors appears to have been revenge and punishment directed against the applicant personally because some of their number are said to have been convicted as a consequence of the applicant’s complaints, and apparently also criminal greed in threatening and bashing him in order to extort money from him on an ongoing basis, and the tribunal finds accordingly.”

The Tribunal noted that where the Convention ground relied on a person’s membership of a particular social group, the serious harm must be inflicted for reason of the person’s membership of that group (Applicant A & Anor v MIEA & Anor (1997) 190 CLR 225 at 284, per Gummow J).
The Tribunal accepted the claims of the applicant in relation to his dealing with the local police, finding that in each case the police were either corrupt or inefficient or both, and that same accorded with the country information concerning the high levels of corruption in both Romania and Moldova.
The Tribunal was not satisfied there was any Convention basis for the harm the applicant faced from Romanian criminals in circumstances where there appeared to be a failure of State protection in both Romania and Moldova, and found that for the purposes of s.91R(1)(a) of the Act that the essential and significant reasons for the harm feared by the applicant were not Convention-based.
The Tribunal made a separate determination in respect of the application of s.36(3) of the Act. It found the applicant had the right to enter and reside in, at least temporarily, all other EU countries by virtue of his EU membership. The Tribunal noted the applicant did not claim to have taken all possible steps to avail himself of that right for the purposes of s.36(3) of the Act.
Rather, the Tribunal noted the applicant claimed to have a well-founded fear in the event that he did take such steps of experiencing further persecution from the Romanian Mafia, which he said operated throughout Europe. The Tribunal found no evidence to suggest that the Romanian Mafia was powerful enough or interested enough in the applicant to target him throughout Europe and that there was only a remote chance that the applicant would encounter further persecution in the reasonably foreseeable future from Romanian criminals if he were to relocate elsewhere. This was a finding of fact open to the Tribunal on the material before it. Indeed, the applicant himself conceded at the hearing that he was unaware of any other person being tracked down elsewhere in Europe in such circumstances.
The Tribunal noted that the laws of the EU did not provide unrestricted access by all EU citizens to all EU countries, and that there were some limitations which imposed labour market access limitations. However, the Tribunal found there were still many countries in the EU where the applicant, as a Romanian national, could work without restriction, namely Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, Greece, Hungary, Latvia, Lithuania, Poland, Portugal, Romania, Slovakia, Slovenia, Spain and Sweden.
The Tribunal found that the applicant did not face a real chance of persecution or risk refoulement to another country where he would face such a threat, were he to enter and reside temporarily in these other EU countries. It noted that the applicant was not a person who had taken all possible steps to avail himself of a right to enter and reside in a country other than Australia and, on the contrary, his evidence was that he had never travelled to any country other than Moldova and Romania prior to his trip to Australia.
The Tribunal noted the problems the applicant experienced appeared to have been fairly localised, and that the applicant himself believed that he was only traced in Moldova because government corruption there enabled his identity to be disclosed when he became a local government employee.
The Tribunal concluded that Australia therefore did not owe protection obligations to the applicant even if there were a Convention basis for the harm he feared in Romania and Moldova. The Tribunal found that ss.36(5) and 36(4) did not apply to modify the operations of s.36(3) of the Act with respect to the countries referred to in paragraph 28 herein.

Consideration

The Tribunal approached the task of determining Convention nexus correctly and made findings that were open to it on the evidence before it. The Tribunal beneficially construed the material before it and found that a possible Convention claim could be made on the basis that the applicant was part of a group constituted by whistleblowers in Romania. Further, the Tribunal determined that the group so identified did constitute a “particular social group,” but made a subsequent finding that was open to it that the applicant’s membership of this group was not the motivating factor behind his persecution.
The Tribunal also correctly acknowledged, consistent with the decision of Minister of Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 that the Convention nexus could also be satisfied by showing that State authorities were unwilling or unable, for a Convention reason, to protect the applicant. The Tribunal found however, that there was no evidence in this case to establish the refusal or failure of authorities to assist the applicant had been motivated by Convention grounds. That finding was open to the Tribunal, based on the absence of evidence directed at a Convention motive and the country information, which supported the conclusion that any inaction was best attributed to corruption or inefficiency.

S.36(2) of the Act relevantly provides that a criterion for the grant of a protection visa is that the applicant for the visa is a non-citizen to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. However, under s.36(3), Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in any country apart from Australia.
The effect of s.36(3) is that if an applicant fails to demonstrate that he or she has taken all possible steps to exercise such legally enforceable entry and residence rights as he or she may have in another country, Australia is taken not to have protection obligations to that person. (NBLB v the Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1051 (at 34)). The Tribunal noted that the applicant, as a citizen of Romania, had rights of entry and residence in other EU countries, by virtue of Romania’s membership of the EU. The Tribunal also had regard to s.36(4) and s.36(5) as it was required to and effectively carved out from the pool of EU countries to which s.36(3) ought apply those countries which impose labour market access limitations on the basis of a person’s nationality.
The Tribunal applied the definition of serious harm as set out in s.91R(2) of the Act, so as to treat the concept of persecution that is found in s.36 of the Act as a single and consistent concept (NBLB v the Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1051 at 40). The Tribunal however, rejected the applicant’s claim that he had a well-founded fear of experiencing further persecution from the Romanian Mafia, to the extent it operated in other parts of Europe, based on a lack of evidence, and the applicant’s own concession that he was unaware of any other person having been tracked down elsewhere in Europe in circumstances similar to his own. This finding was open to the Tribunal and involved a correct approach to the analysis required by s.36(3) of the Act. The Tribunal completed the exercise by finding, based on a lack of evidence, that it was not satisfied for the purpose of s.36(5) of the Act that if the applicant were to relocate to one of the EU countries it had identified, he would face a real chance of being forcibly returned to Romania or Moldova in the reasonably foreseeable future.
Consequently, the application will be dismissed.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Date: 11 November 2011