SZAJP v Minister for Immigration
[2004] FMCA 63
•11 February 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAJP v MINISTER FOR IMMIGRATION | [2004] FMCA 63 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political and ethnic persecution in Azerbaijan – whether the RRT ignored a relevant consideration considered – the RRT made no express finding of nationality and failed to consider whether the applicant might be repatriated to Armenia – the RRT is not obliged to consider Australia’s non-refoulement obligations in the absence of a relevant claim by the applicant – nevertheless there was material sufficient to warrant consideration of the risk of refoulement to Armenia – no jurisdictional error found – recommendation that the Minister consider substituting a more favourable decision – no costs order whether the RRT decision deficient but within jurisdiction. |
Migration Act 1958 (Cth), s.417
Hussaini v Minister for Immigration [2002] FCAFC 104
Jones v Minister for Immigration [2002] FCA 392
Raza v Minister for Immigration [2002] FCA 350
| Applicant: | SZAJP |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ581 of 2003 |
| Delivered on: | 11 February 2004 |
| Delivered at: | Sydney |
| Hearing date: | 11 February 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Mr R Bromwich |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
There is no order as to costs.
The Court recommends that the Minister for Immigration consider exercising her discretion under s.417 of the Migration Act 1958 (Cth) to substitute a more favourable decision.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ581 of 2003
| SZAJP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 28 February 2003 and handed down on 20 March 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Azerbaijan and claimed both ethnic and political persecution in that country. The general background facts, including the decision of the RRT, are dealt with accurately in paragraphs 1 through to 5 of written submissions prepared on behalf of the Minister by Mr Bromwich. I adopt those paragraphs for the purposes of this judgment:
On 19 March 2001, the applicant, a citizen of Azerbaijan, arrived in Australia. On 30 April 2001 he applied for a protection (class XA) visa. The basis for the application was a claim that he was persecuted by reason of his political opinion and his ethnic background, rising from his membership of the Azerbaijan Democratic Party and by reason of his part-Armenian ethnicity arising from being born in that country and his mother being Armenian (court book, page 26.2).
On 15 May 2001, a delegate of the respondent refused the grant of a protection visa (court book, page 42). On 18 June 2001, the application filed an application for review with the RRT (court book, page 49).
On 28 May 2002, 28 July 2002 and 17 September 2002 the applicant’s migration agent sent material in support of the application for review (court book, pages 59, 62, 71). On 25 September 2002 a hearing commenced at the RRT. However the interpreter indicated that she found the applicant’s Azerbaijani Turkic too difficult to be able to continue and the hearing was adjourned until 2 October 2002 with a Russian interpreter (court book, page 84.8).
On 2 October 2002, the hearing resumed. On 8 February 2003, the applicant wrote to the Tribunal member advising that it had come to his attention that the information he provided to the Department and RRT had become available to Azerbaijan law enforcement authorities. He said that this had occurred because a local leader of the Azerbaijan community in Australia had informed the Azerbaijan authorities that he applied for asylum in Australia, claiming persecution by reason of his political opinion (court book, page 76).
On 20 March 2003, the RRT handed down a decision made on 28 February 2003, affirming the delegate’s decision to refuse the grant of a protection visa. In reaching this decision, the RRT:
a)noted that the applicant claimed that he feared persecution for reason of his Armenian-Azeri ethnicity and his membership of the Democratic Party (court book, page 88.1);
b)noted that there were minor discrepancies between the primary application and the applicant’s evidence at the RRT hearing and that his claims had a remarkable similarity to another case the RRT had dealt with recently with the same advisor, but decided that the discrepancies could be explained by hurried work and word processing on the part of the advisor and also decided to give the applicant the benefit of the doubt where details such as month of birth differ (court book, page 88.2);
c)accepted that as a result of the conflict with Armenia over Nagorno-Karabakh, the applicant’s family was split and that his mother remains in Armenia (court book, page 88.3);
d)accepted that the family’s visits to the applicant’s mother on the Georgian border, brought them under suspicion and that at times when the conflict peaked they were questioned by authorities (court book, page 88.4);
e)was not satisfied that the treatment the applicant and his family received from the authorities because of their Armenian connections amounted to persecution in the Convention sense (court book, page 88.5);
f)found that the applicant’s difficulties in finding work were likely to be a result of the economic situation, noting that while the applicant claimed to have been out of work since 1994, a medical certificate he submitted stated that he worked in the railway department (court book, page 88.5);
g)accepted that the applicant was a member of the Azerbaijan Democratic Party but found he was a rank and file member rather than a party leader (court book, page 88.6);
h)accepted that the applicant attended party rallies but had not substantiated his earlier claim that he had been detained several times (court book, page 88.7);
i)accepted that the applicant was bashed at a demonstration in December 2000 following the elections and was consequently hospitalised and that it would appear that it was this incidence that brought him to the attention of authorities, who threatened him with false charges when he was released from hospital and soon after issued a summons to attend a police station (court book, page 88.8);
j)noted that independent country information, relating to the treatment of Democratic Party members participating in unauthorised demonstrations over the past two years indicated that 72 had been injured and a substantial number detained, but that most were released on the same day and that some leaders and those resisting arrest had been arrested and detained for a few days while the identified leaders have paid a fine of $20 (court book, pages 88.9-89.1);
k)found that while this treatment did not conform to internationally accepted human rights principles, it did not amount to the serious and sustained harm which constitutes persecution in the Convention sense (court book, page 89.2);
l)was not satisfied that there was a real chance that the applicant would be persecuted by reason of his political opinion (court book, page 89.3);
m)considered the applicant’s submission that a member of the Azerbaijan community in Australia had provided details of his protection visa application to the government in Azerbaijan and that his wife has been questioned as a result but found that even if this was so, which was doubted, did not consider this would lead to his being persecuted in the future as he had claimed for the preceding reasons (court book, page 89.3).
The applicant proceeds on the basis of his application filed on 16 April 2003. In that application the applicant asserts that the RRT fell into error by overlooking various parts of his evidence and ignoring important aspects of his evidence. He asserts that as a result of the errors the RRT erred in determining whether he had a well founded fear of persecution within the meaning of the Refugees Convention and Protocol. The grounds of review are not particularised. In legal terms, I took the application to be an assertion that the RRT constructively failed to exercise its jurisdiction in that it failed to take into account a relevant consideration. Mr Bromwich, in his written submissions, states that it is not clear from the application what aspects of the applicant's evidence, or indeed his claims, were overlooked or ignored. Mr Bromwich submits that no error is apparent.
The RRT accepted that the applicant as a person of mixed Armenian and Azeri ethnicity was a member of a group of persons who faced discrimination in Azerbaijan. The presiding member also accepted that the applicant had suffered harm in the course of his political activities in Azerbaijan. However, the presiding member was unpersuaded that the harm experienced by the applicant in the past and the risk of harm he faces in the future constitutes persecution within the meaning of the Convention as elaborated in the Migration Act 1958 (Cth) (“the Migration Act”). The applicant is concerned about that outcome. To that extent the contest over the RRT decision is merely a contest over the merits of it.
The presiding member considered all of the applicant's claims in relation to the risk of harm he faced in Azerbaijan. Many may not agree with the conclusion reached by the presiding member. It is certainly possible that the wrong decision was made. There are certainly strong humanitarian considerations in this case in that it is apparent from the country information available to the RRT that persons of mixed Azeri and Armenian ethnicity in Azerbaijan face serious difficulties. However, the function of the Court is not to review the RRT decision on its merits. I accept Mr Bromwich's submissions that there is no jurisdictional error on the face of the record in relation to the consideration by the RRT of the claims made by the applicant of a well founded fear of persecution in Azerbaijan.
There are, however, two other issues that merit consideration. The first is that the presiding member made no express finding of nationality in her decision. The delegate had made a finding that the applicant is a national of Azerbaijan. The applicant arrived in Australia on an Azerbaijan passport and asserted Azerbaijan nationality in his protection visa application. The decision of the presiding member is silent on that question, although she appears to have assumed Azerbaijan nationality. There was material before the RRT which might have caused the RRT to question the claim of Azerbaijan nationality. The applicant was born in Armenia, as were both his parents and his siblings. He lived in Armenia for at least part of his childhood when, according to his account, his family fled Armenia because of persecution. The applicant also claimed before the RRT that his mother was repatriated back to Armenia in the course of what I would characterise as ethnic cleansing operations between Armenia and Azerbaijan.
The issue of nationality is in these circumstances of significance if it raises the prospect that the applicant might be returned to Armenia from Azerbaijan and suffer persecution there. The question is whether the RRT erred in failing to find a positive finding on nationality and in failing to consider the risk of refoulement from Azerbaijan to Armenia. The issue has arisen from time to time in proceedings in the Federal Court. In the limited time available to me to research the matter I have identified three relevant decisions. The first of those is the decision of the Full Court in Hussaini v Minister for Immigration [2002] FCAFC 104. In that decision at paragraphs 11 to 13 the Full Court said:
In our opinion there is no error of law disclosed in the Tribunal's reasons. The appellant put his claim on the basis that he was of Hazara ethnicity, Shi'ite religion, and a resident of a village called Chehel Dokhtaran in the Ghazni province of Afghanistan and that he had left that village following his uncle's abduction by the Taliban. The Tribunal found as a matter of fact that it was not satisfied that he was a resident of the village of Chehel Dokhtaran. It was left "with doubts as to the genuineness of the applicant's story". In content, although expressed in terms of doubt, this does appear to be a rejection of the appellant's claim that his uncle had been abducted from that village.
The language analyst's evidence was really directed to the question of "national origin" in the sense of residency rather than in the sense of formal citizenship. Having regard to the discussion of the evidence by the Tribunal, although the Tribunal expressed its findings in terms of citizenship it was plainly also directed to residency which was the underlying factual question addressed by the language analyst's evidence and to which its consideration of the credibility of the appellant's evidence was directed. On a reading of the Tribunal's reasons it has, in effect, found that the appellant has not made out his claims to be a resident of Afghanistan fleeing from Taliban persecution. The Tribunal is not obliged to make any positive finding as to the appellant's nationality or country of origin. It is concerned to determine whether the appellant's claim for a protection visa on the ground that he is a refugee as defined by Art 1(A) of the Convention is made out.
In its reasons the Tribunal rejected the appellant's claims in respect of his nationality and residence in Afghanistan. It concluded that, as he had made no claims about persecution in any other country, it was not satisfied that he had a well-founded fear of persecution for a Convention reason. In these circumstances no question under Art 33 arose for its consideration.
Those reasons were adopted by the Federal Court in the later case of Jones v Minister for Immigration [2002] FCA 392 at paragraph 32. It follows in my view that it cannot be said that the RRT erred simply because there was no express finding on the nationality of this applicant. The applicant had asserted Azerbaijan nationality. That assertion had been accepted by the delegate. The RRT proceeded on the apparent assumption that the applicant's assertion was correct. The RRT considered the applicant's claims in relation to Azerbaijan. That was the jurisdictional function that the RRT was required to perform.
There remains the question of whether the RRT erred in failing to consider the risk of refoulement from Azerbaijan to Armenia. That issue was considered by the Federal Court in Raza v Minister for Immigration [2002] FCA 350 from paragraph 20. At paragraph 21 the Full Court said:
… The task of the Tribunal in considering an application for review in respect of the refusal of a protection visa is to determine (inter alia) whether the applicant for review satisfies the criterion for the grant of such a visa under s 36…
This criterion is reflected in Schedule 2 of the Migration Regulations which, pursuant to regulation 2.03 sets out criteria for the grant of various classes of visa. Item 785 of Schedule 2 deals with temporary protection visas and Item 866 with protection visas. Both include as a criterion that:
“…The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention.”
The primary obligation which qualifies as a protection obligation arises out of Art 33 of the Refugees Convention… Under that Article the contracting states undertake not to expel or return a refugee to the frontiers of territories in which his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. The obligation, which is otherwise known as the prohibition against refoulement, is owed to a refugee who is defined in Art 1A(2) of the Convention as any person who:
“…owing to a well-founded fear of 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.”
At paragraph 22 Their Honours said:
The decision with which the Tribunal is concerned in this case, is the refusal to grant a protection visa on the basis of an application made by a person who claims to have a well-founded fear of persecution for a Convention reason if he is returned to the country of his nationality, Afghanistan. That is the matter which comes before the Tribunal, by way of review, when it determines whether or not a protection visa should be granted. The Tribunal was not at large to consider and make findings relevant to the question of Australia's non-refoulement obligation under Art 33 generally when the appellant's claims or circumstances do not raise those issues: cf Applicant C. A question relating to refoulement might arise where a claim to a real chance of persecution in country A is based on a fear of refoulement by country B to country A. In that circumstance it is relevant for the Tribunal to consider whether there is a real chance that country B will return the claimant to country A…
At paragraph 23 Their Honours said:
The administrative arrangements that may be made by the Executive for the return of an unsuccessful applicant for a protection visa to another country will, no doubt, have to be made in accordance with Australia's international law obligations under the Refugee Convention and, in particular, by reference to Art 33.
That may bring in a wider range with factual considerations than those before the RRT when it determines the application for a protection visa. It is not a necessary part of the RRT’s duty if the evidence before it and a reasonable inquiry does not permit a finding that the applicant is of a particular nationality or country of origin. In such a case, the RRT is concerned to determine whether it is satisfied that the applicant's claim for a protection visa on the ground that he is a refugee, as defined by Article 1A(2) of the Convention, is made out. In this case, while the contrary is certainly arguable, I have come to the view that the RRT has performed the jurisdictional function that was required of it.
There was material before the RRT that might have led the Tribunal if it was so minded, to question the claim of nationality advanced by the applicant. There was also material before the RRT that could have led the RRT, if it was so minded, to a course of inquiry that might hypothetically have resulted in a finding that the applicant faced a risk of refoulement from Azerbaijan to Armenia. However, the applicant did not himself make that claim. In addition, the information before the RRT did not clearly point to such a risk.
It would, in my view, have been preferable if the RRT had made a clear finding on nationality and if it had considered the risk of refoulement from Azerbaijan to Armenia. I am inclined to the view that the RRT erred in failing to pursue that path. However, it was not a jurisdictional error. The RRT performed the function required of it under the Migration Act and the Refugees Convention. These issues would probably need to be addressed by the Minister prior to the removal of the applicant from Australia. Given the concerns I have about the failure of the RRT to consider these issues there are, in my view, very good reasons why it would be appropriate for the Minister to consider substituting a more favourable decision for the decision of the RRT.
In addition, there are, as I have already noted, strong humanitarian considerations in this case. In the circumstances, while I will dismiss the application, I will append to the Court's orders a recommendation that the Minister consider exercising her power under s.417 of the Migration Act.
I have also formed the view that there should be no order as to costs. The decision of the RRT was, in my view, deficient. If the RRT had gone down the path that was, in my view, open to it, these proceedings would not have been necessary. The mere fact that I have made a recommendation that the Minister consider exercising her power under s.417 is not in itself a reason to decline to make a costs order. However, that factor, combined with the deficiencies in the RRT decision that have been identified, have led me to that view. I will therefore order that there be no order as to costs.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 16 February 2004
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