QAAK of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 901
•4 JULY 2005
FEDERAL COURT OF AUSTRALIA
QAAK of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 901
Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) s 36(2)(a), 91R(1), 474, 474(2)
Migration Legislation Amendment Act (No. 6) 2001 (No. 131 of 2001)Convention Relating to the Status of Refugees, 1951
Protocol Relating to the Status of Refugees, 1967Craig v South Australia (1995) 184 CLR 163 cited
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 cited
Plaintiff S157/2002v Commonwealth of Australia (2003) 211 CLR 476 cited
Yusuf v Minister for Immigration and Multicultural Affairs (2001) 206 CLR 57 citedQAAK OF 2004, QAAL OF 2004, QAAM OF 2004 and QAAN OF 2004
QUD135 of 2004NICHOLSON J
4 JULY 2005
PERTH (heard in Brisbane)
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QUD135 OF 2004
BETWEEN:
QAAK OF 2004
QAAL OF 2004
QAAM OF 2004
QAAN OF 2004
APPLICANTSAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
NICHOLSON J
DATE OF ORDER:
4 JULY 2005
WHERE MADE:
PERTH (heard in Brisbane)
THE COURT ORDERS THAT:
1.The amended application dated 17 August 2004 be dismissed.
2.The applicants pay the respondent’s cost of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QUD135 OF 2004
BETWEEN:
QAAK OF 2004
QAAL OF 2004
QAAM OF 2004
QAAN OF 2004
APPLICANTSAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
NICHOLSON J
DATE:
4 JULY 2005
PLACE:
PERTH (heard in Brisbane)
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’), delivered on 1 June 2004, in respect of the applicants. The Tribunal affirmed a decision of the respondent’s delegate (dated 27 February 2002) to refuse to grant protection (class XA) visas to the applicants.
The application was heard before Cooper J on 8 November 2004. Following the death of his Honour and with the consent of the parties, the application is now before me for resolution. I have read the papers which were before Cooper J as well as the transcript of the hearing before him.
The first-named applicant, being the father of the family, was the principal applicant for the protection visa. The other applicants, being the mother and children, had not made any specific claims for protection visas of their own so their fate lies with the outcome of the first‑named applicant.
The applicants rely on an amended application filed on 17 August 2004. The applicants were unrepresented and the amended application sets out, in the first-named applicant’s words, ‘the reason for disagreement with the decision made by the [Tribunal]’.
For the reasons that follow, the amended application should be dismissed.
RELEVANT LEGISLATION
This application is made under s 39B of the Judiciary Act 1903 (Cth).
The jurisdiction of this Court is constrained by s 474 of the Migration Act 1958 (Cth) (‘the Act’).
Under s 36(2)(a) of the Act a non-citizen in Australia is eligible for a protection visa if that person is a person ‘to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol’. The Refugees Convention is the Convention Relating to the Status of Refugees, 1951 and the Refugees Protocol is the Protocol Relating to the Status of Refugees, 1967 (collectively ‘the Convention’).
Under art 1A(2) of the Convention, a ‘refugee’ is defined as a person who:
‘…owing to well-founded fear or being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.’
These reasons are colloquially known as ‘Convention reasons’ and they give rise to a protection obligation, which in turn prohibits expulsion or refoulement of the refugee under art 33 of the Convention.
Section 91R(1) of the Act places certain limitations on the meaning of ‘persecution’:
‘91R (1) For the purposes of the application of this Act and the regulations… 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.’
Section 91R has potential application to this proceeding because of item 7 of Sch 1 Pt 2 of the Migration Legislation Amendment Act (No. 6) 2001 (No. 131 of 2001), which relevantly provides that s 91R applies in relation to ‘an application for a protection visa made before the commencement of this item, where the visa was neither granted, nor refused, before the commencement of this item’.
BACKGROUND
The first-named applicant is a 39 year-old Romanian‑born male. He arrived in Australia on 4 February 1997 as a holder of a 676 Visitor Visa valid until 4 May 1997. His wife, the second‑named applicant, arrived in Australia on 17 February 1997, also as a holder of a 676 Visitor Visa valid until 17 May 1997. The third and fourth‑named applicants are their Australian-born infant children.
The first-named applicant was born in Uriu, Romania in 1966 and is of Baptist faith. He departed Romania for Yugoslavia in August 1988. He did so by crossing the border without a passport. Romania was then under the rule of Nicolae Ceasescu, who was subsequently overthrown in a popular uprising in 1989. When the first-named applicant arrived in Yugoslavia, he was assessed by a representative of the United Nations High Commissioner for Refugees and was granted a political refugee status.
In August 1989, he entered the United States of America on an entry permit for permanent residency. There he met and later married his first wife. They purchased a house. However, in January 1993, a fire badly damaged the house. Subsequently, the first‑named applicant was convicted of second degree arson. He was sentenced to 2 years probation. He has always maintained that the fire was accidental.
As a result of his conviction for arson, he became liable for deportation from the USA. In February 1997, the first-named applicant and his family voluntarily left the USA for Australia; he says he did so to avoid possible deportation. The first-named applicant departed the USA on a ‘Permit to Reenter the United States’, which was valid to 17 January 1999.
In March 1997, while the first-named applicant was out of the USA, the US Department of Justice, Immigration and Naturalization Service informed him that a deportation order has been made in relation to him. He has not attempted to return to the USA since arriving in Australia in January 1999.
In 1999, the first-named applicant and his first wife divorced. Subsequently, on 13 November 1999, he married the second-named applicant. Their children are the
third-named applicant born on 14 December 2000 and the fourth-named applicant born on 11 September 2003. By a letter dated 12 March 2005, the first-named applicant informed the Court of the birth of his third son on 24 January 2005 and sought to add him to his application.
DELEGATE’S FIRST DECISION
On 9 October 2000, the first and second-named applicants lodged applications for Protection (Class XA) visa. The first-named applicant claimed that in Romania there was no freedom of speech, everything was controlled by the secret police, and summary execution and unlawful prosecution occurred. He also claimed that he feared he would be gaoled, and his life and the safety of his family jeopardised if he and his family returned to Romania. He said he feared persecution on the basis of his Baptist faith because the Baptist faith is not accepted in Romania, the national religion being Romanian Orthodox Church. Furthermore, he also claimed that he would be punished for departing Romania clandestinely and without a passport.
On 27 February 2002, the delegate of the respondent refused to grant Protection (Class XA) visas to the first, second and third-named applicants (the fourth applicant had not been born yet). At p 9 of the decision record, the delegate stated that ‘the [first-named] applicant’s prior conviction for…arson…satisfies the meaning and standards required of “serious reasons for considering” that he has committed a serious non-political crime outside the country of refuge (i.e. Australia), thereby excluding the first-named applicant (and consequently the second and third-named applicants) from protection by Australia pursuant to art 1F(b) of the Convention.
On 14 March 2002, the first-applicant applied to the Administrative Appeals Tribunal (‘AAT’) for review of the delegate’s decision of 27 February 2002. The AAT, while reluctant to go behind the judgment of a court of another jurisdiction, was satisfied that the first-named applicant was wrongly convicted. It set aside the decision under review by it and determined the matter be remitted to the respondent for re-assessment in the light of the AAT’s decision.
DELEGATE’S SECOND DECISION
The first-named applicant’s claim for the protection visa was then considered for a second time by a delegate. His decision was delivered on 12 February 2004. He found that, in accordance with the AAT decision, the first-named applicant was not a person excluded under art 1.F or any other exclusion clause in the Refugees Convention. Nevertheless, the delegate again refused to grant the protection visa for the following reasons.
First, the delegate pointed to the fact that the applicant had not provided any documentary evidence or details in support of his claims. The delegate found that the
first-named applicant’s claim was ‘without any form of corroboration’. Second, the delegate preferred the evidence as presented in the independent country information reports to the first-named applicant’s ‘general and totally uncorroborated statement’. Third, the delegate found that there was ‘no evidence whatsoever to suggest that the [first-named] applicant has ever personally been the subject of any such persecution or discrimination, or likely to be so in the foreseeable future’. Fourth, the delegate expressed ‘serious doubts as to both the veracity and credibility of the [first-named] applicant’s claims’. Fifth, the fact that the first-named applicant did not provide any reason as to why he did not claim protection immediately upon arrival in Australia also counted unfavourably against him. Sixth, the delegate was not satisfied that the first-named applicant would be at risk from the Romanian authorities for having departed the country illegally in 1988 or that he would be persecuted for his Baptist faith. The delegate therefore did not consider that the first‑named applicant’s claimed fear of persecution was either genuine or well‑founded.
TRIBUNAL’S DECISION
By an application dated 22 March 2004, the first-named applicant sought review of the delegate’s second decision by the Tribunal. By post (dated 18 March 2004), the
first-named applicant provided various documents in support of his and his family’s applications for protection visas. They comprised various media reports and country information reports from government and non‑government organisations.
The Tribunal hearing occurred on 14 May 2004 and during the hearing the
first-named applicant gave oral evidence and provided further materials (which were faxed to the Tribunal by a staff member present at the hearing), which also comprised media reports and country information reports from non-government organisations.
The Tribunal also had some materials of its own, which comprised:
·Country Reports on Human Rights Practices 2002, Country Reports on Human Rights Practices 2003, International Religious Freedom Report 2003 – released by the Bureau of Democracy, Humans Rights and Labor of the US Department of State; and
·2002 Report on Human Rights and the Protection of Minorities by the European Commission.
During the hearing, the Tribunal also had regard to and sought the first‑named applicant’s comments on certain information relating to Romania on a website called ‘ which is said to a ‘noncommercial collection of information about citizenship, dual citizenship and multiple citizenship’.
The Tribunal rejected the first-named applicant’s application for the following reasons.
First, the Tribunal did not accept that the first-named applicant had lost his Romanian citizenship. This conclusion was based on the information on ‘ The Tribunal put this information to the first-named applicant for comment. The first-named applicant responded that Romanian citizenship legislation was enacted in 1991 whereas he had departed Romania in 1988. The first-named applicant also said the government was not democratic. However, he added that although he would not be happy to return to Romania, he would if he were to be given a Romanian passport because he has no access to employment and services in Australia.
Second, the Tribunal did not accept that ‘former escapees from the Ceausescu regime are prosecuted or harmed by the current government’. That finding was based on the fact that independent sources such as the US Department of State, the United Kingdom Home Office, Amnesty International and the Department of Foreign Affairs and Trade would have reported such prosecution and harm if they occurred.
Third, the Tribunal did accept that the first-named applicant is a person of Baptist faith. However, the Tribunal did not accept that he, as a Baptist or a sympathiser of the Baptist faith, would suffer persecution or harm in Romania. The Tribunal referred to the fact that the Romanian government officially recognises 17 religions, of which the Baptist faith is one. The Tribunal also pointed to the fact that the clergy of recognised religions are eligible to receive state support. The Tribunal therefore rejected the first-named applicant’s claim that there is restricted freedom of religion for Baptists in Romania.
Fourth, the Tribunal dealt with the claims of general human rights abuses and lack of free speech in Romania. In this respect, the Tribunal accepted that there are instances of police brutality and human rights abuses of psychiatric patients. Nevertheless, the Tribunal did not consider that such human rights abuses were for Convention reasons. The Tribunal also rejected the first-named applicant’s allegation that there is no freedom of speech in Romania because independent evidence indicated that the Romanian constitution provides for freedom of expression and of the press. The Tribunal noted that there is government intimidation of journalists who are critical of the government but that did not concern the first-named applicant because he is not a journalist.
The applications for protection visas by the other applicants, not having made additional specific claims were consequently also rejected.
GROUNDS OF APPLICATION AND SUBMISSIONS
The applicants were not legally represented and the application (as amended) was prepared by the first-named applicant himself.
It can be deduced from the amended application that the first-named applicant alleges that the Tribunal fell into error by:
(1)wanting the first-named applicant to prove that he would be persecuted if he returned to Romania;
(2)making comments about political situation in Romania of which she had no proper understanding;
(3)finding that the first-named applicant would have no problem returning to Romania because he is a Romanian citizen;
(4)finding that the first-named applicant, not being a journalist, homosexual, psychiatric patient, and being of state-recognised faith, would not have any problems in Romania.
The first-named applicant maintains that the Tribunal should have decided in favour of the first-named applicant because:
(1)members of the police force in Romania were members of the secret service during the Ceausescu regime and members of the judiciary from that era remain in the current judiciary;
(2)the current Romanian president is communist and not democratic;
(3)people are still persecuted and intimidated in Romania;
(4)the workers are underpaid and overworked but they do not speak up for the fear of losing their jobs, and this constitutes persecution and restriction of rights;
(5)young girls are sexually abused by people in positions of power such as government officials, police and secret service;
(6)government officials have to be bribed;
(7)doctors have to bribed for medical attention;
(8)people are generally poor and are unhappy but do not speak up because Romania is not a democratic country; and
(9)Romanian government does not like people like the first-named applicant who stand up to the government and believe in human rights.
By written submissions in response, the respondent says that the first-named applicant has not pointed to any proper grounds of review. The respondent also says the first-named applicant has not filed full particulars of each ground of review as directed.
The respondent submits that the Tribunal’s decision is a privative clause decision pursuant to s 474(2) of the Act and there is no evidence of jurisdictional error in the Tribunal’s decision. It is also said that the Tribunal made a number of findings of fact, all of which appear to have been reasonably open to it and the first-named applicant’s complaints relate solely to findings of fact made by the Tribunal.
REASONING
It is the case that the objections raised in the amended application relate to merits of the Tribunal’s finding. It is well-established that this Court is not empowered to engage in merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [73]; Plaintiff S157/2002v Commonwealth of Australia (2003) 211 CLR 476 at [71]-[78]. This Court can only review the Tribunal for errors of law which amount to jurisdictional error. The nature of jurisdictional error has been considered by the High Court of Australia in a number of past cases: Craig v South Australia (1995) 184 CLR 163 at 177‑180; Yusuf v Minister for Immigration and Multicultural Affairs (2001) 206 CLR 57 at [82]‑[84]. None of the alleged errors raised by the first-named applicant can be characterised as jurisdictional error.
It is also well-established that the Tribunal can use whatever relevant information it prefers and can decide how much weight should be placed on such information: Wu Shan Liang at 281-282 and 291‑292. Therefore, it cannot be a ground of review that the Tribunal preferred country reports which were generally positive of Romania’s human rights situation. Therefore, there was material on which the Tribunal could reasonably find that there was no danger of persecution or harm if the first-named applicant returned to Romania.
Furthermore, even country reports and media coverage which tended to be less positive (such as the reports by Amnesty International and Human Rights Watcher) could not assist the first-named applicant because the reported human rights abuses related to specific groups (such as homosexuals, psychiatric patients, ethnic Roma, journalists or escapees from the former regime) of which the first-named applicant was not a member, and because they were of no specific pattern being general police brutality which might befall any member of the Romanian citizenry. In short, there was no basis on which the first-named applicant could show that he would suffer persecution or harm for any Convention reason, and the Tribunal so found.
It is also clear that the Tribunal did consider the material which was provided by the first-named applicant in support of his application because such material was listed in the Tribunal’s reasons.
The Tribunal was entitled to reject the first-named applicant’s claim of persecution on the basis of his Baptist faith. The information before the Tribunal suggested that Baptist faith was recognised by the government and was eligible to receive state support. There was a suggestion that members of the Baptist faith experienced some difficulties but that was due to harassment by some the Romanian Orthodox priests and there was no evidence that there was a systematic persecution of the Baptist faith.
The first-named applicant also claimed that he had lost Romanian citizenship. In support, he stated that he had contacted the Romanian embassy but was told that he could not have it back. However, the Tribunal had information from an independent source which indicated that there was no ground for involuntary loss of Romanian citizenship. So the Tribunal had basis on which to find that the first-named applicant had not lost his Romanian citizenship. The first-named applicant fails in this respect also.
Additionally, the Tribunal gave the first-named applicant every opportunity to put his case.
Consequently, none of the matters raised by the first-named applicant establish jurisdictional error with the result that the decision of the Tribunal is a privative clause decision protected by s 474 of the Act.
CONCLUSION
For the reasons set out above, I consider that the amended application therefore must be dismissed, with costs.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholson. Associate:
Dated: 30 June 2005
The applicants represented themselves Counsel for the Respondent: P Bickford Solicitor for the Respondent: Clayton Utz Date of Hearing: 8 November 2004 Date of Judgment: 4 July 2005
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