SZDHG v Minister for Immigration

[2006] FMCA 943

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDHG & ORS v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 943

MIGRATION – Application for review of a decision of the Refugee Review Tribunal – whether any reviewable error disclosed by decision of the RRT – applicants are husband, wife and daughter of Russian ethnicity – husband and wife found by Tribunal to be stateless – no finding as to nationality of third applicant - applicants were formerly resident in Latvia and claim well-founded fear of persecution in that country – decision incomplete – making a finding in respect of whether an applicant is a citizen of a country or stateless is fundamental to the review process – failure to make a finding as to citizenship is a jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36, 91X, 474

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 applied

First Applicant: SZDHG

Second Applicant: SZDHH

Third Applicant: SZDHI

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File No: SYG 1081 of 2004

Delivered on: 30 June 2006

Delivered at: Sydney

Hearing date: 30 June 2006

Judgment of: Scarlett FM

REPRESENTATION

The Applicants: In Person

Counsel for the Respondent: Mr Kennett

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The Refugee Review Tribunal is joined as Second Respondent to the Application.

2. The title of the First Respondent is changed to Minister for Immigration and Multicultural Affairs.

3. That an order in the nature of certiorari issue quashing the decision of the Refugee Review Tribunal made on 2 March 2004 and handed down on 23 March 2004.

4. That an order in the nature of mandamus issue remitting the Applicants’ application for protection visas to the Refugee Review Tribunal for determination according to law.

5. The parties are to pay their own costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1081 of 2004

SZDHG

First Applicant

SZDHH

Second Applicant

SZDHI

Third Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. This is an application for review of a decision of the Refugee Review Tribunal. The Tribunal made its decision on 2^nd March 2004 after a hearing that took place on 3^rd July 2003. The Tribunal handed its decision down on 23^rd March 2004.

2. The Tribunal affirmed the decision of the delegate of the Minister not to grant the Applicants protection visas.

Background

1. The Applicants, being husband, wife and now adult daughter, arrived in Australia on 22^nd September 2001. They claim to be stateless. The daughter, referred to by the pseudonym SZDHI, as required by s.91X of the Migration Act, was born on 15^th June 1987. They applied for protection (Class XA) visas on 23^rd October 2001. The wife and daughter did not claim but these were refused by a delegate of the Minister on 23^rd April 2002. The Applicants then sought a review by the Refugee Review Tribunal.

Application for RRT review

1. The Applicants lodged an application for review at the Registry of the Refugee Review Tribunal on 20^th May 2002. They accompanied that application with an eight-page typewritten statement about their situation. A copy of that statement can be found on pages 271 to 278 of the Court Book. In that statement, the Applicants set out their claims about human rights violations in Latvia committed against non-Latvian minorities, including ethnic Russians such as themselves. They claimed that there was a policy by the Latvian government to force minorities to leave Latvia.

2. The Tribunal invited the Applicants to attend a hearing, originally on Thursday 12^th June, but then postponed it to Thursday 3^rd July 2003. The Applicants replied in writing that they wished to attend and would require a Russian interpreter. They asked if their migration agent could attend the hearing, also.

3. The Applicant husband, referred to by the pseudonym SZDHG, attended the hearing and gave evidence to the Tribunal about having been born in Kiev, Ukraine. He told the Tribunal that his wife and daughter were born in Belarus. He and his wife are ethnic Russians. He has lived in Latvia since he was a child. He and his wife and daughter left Latvia legally on 20^th September 2001, travelling on Latvian alien passports.

4. The Applicant husband told the Tribunal that the Latvian government had had a policy since independence of driving out the Russian population. He had been the director of a company and an active supporter of the Russian Orthodox Church in Latvia. From 1997 he started receiving “mysterious” telephone calls and an ethnic Russian friend disappeared in suspicious circumstances in 1998. He said that telephone threats continued in 2000, and in June of that year he and a colleague were bashed by unknown persons of Latvian nationality. From 1999, attempts had been made to bankrupt his company. His home had been shot at by an automatic firearm.

5. In August 2001 the family submitted documents to the Australian Embassy and they left Latvia for Australia in September.

The tribunal’s findings and reasons

1. The Tribunal’s findings and reasons are set out on pages 322 to 330 of the Court Book. The Tribunal made this finding on page 322:

   The Applicant[1], his wife and daughter traveled to Australia on alien passports issued by the Latvian authorities. The Applicant does not have Latvian citizenship but was born in the Ukraine, lived in Latvia since about 1975 and is an ethnic Russian. His wife, who was born in Belarus, resided in Latvia. The Applicant and his wife do not have Latvian citizenship. Accordingly, for the purposes of the Convention, their claims have been assessed against Latvia as their country of former habitual residence.

   [1] The Tribunal uses the term “the Applicant” to refer to the First Applicant.

Conclusions

1. In my view, there is a flaw in the Tribunal decision, as no finding has been made about the Third Applicant, the parties’ daughter. It may be presumed that she, too, is stateless, but to my mind that is not sufficient. A finding as to nationality or statelessness is fundamental to the process of deciding whether an applicant is a person to whom Australia has protection obligations (Migration Act, s.36).

2. The Tribunal needs to make a finding about the nationality, or otherwise, of each Applicant. The question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country (s.36(6)). There is no determination about the nationality about the Third Applicant, who was born in Belarus. The decision is silent on the question of the Third Applicant. The question also arises about the Second Applicant, the wife of the First Applicant. She, too, was born in Belarus. To my mind, the question has simply not been addressed by the Tribunal.

3. On this point, I am satisfied that the Tribunal has made a jurisdictional error. The Tribunal decision, therefore, is not a privative clause, as it is affected by jurisdictional error (Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476), and it does not have the protection of s.474 of the Migration Act.

4. Accordingly, I propose to grant the application. I will make orders in the nature of certiorari, quashing the decision, and mandamus, remitting the Applicants’ application to the Tribunal for determination according to law.

5. The Applicants are not legally represented and their filing fees were waived. The parties should pay their costs.  

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  30 June 2006