SZDTQ v Minister for Immigration
[2007] FMCA 1556
•14 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDTQ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1556 |
| MIGRATION – Review of RRT decision – political opinion – whether a set of facts constituting the expression of political opinion can have a dual characterisation – whether Tribunal misconstrued meaning of ‘political opinion’ – whether Tribunal required to make positive findings – whether Tribunal failed to address an issue it identified – whether failure to comply with s.423(1) Migration Act 1958. |
| Migration Act 1958, ss.91R, 424A, 423(1) |
| Canada (Attorney-General) v Ward (1993) 103 DLR 1 V v Minister for Immigration (1999) 92 FCR 355 Minister for Immigration v Y (1998) FCA 80 SZFDE v Minister for Immigration [2007] HCA 35 Minister for Immigration v Sarrazola (1999) 166 ALR 641 Minister for Immigration v Sarrazola (No 2) [2001] 107 FCR 184 SZFZN v Minister for Immigration [2006] FMCA 1153 De Silva v Minister for Immigration [1999] FCA 1074 Paramananthan v Minister for Immigration (1998) 160 ALR 24 Muralidharan v Minister for Immigration (1996) 62 FCR 402 NAVZ v Minister for Immigration [2005] FCA 13 WAEE v Minister for Immigration (2003) 75 ALD 630 Ram v Minister for Immigration (1995) 57 FCR 565 Okere v Minister for Immigration (1998) 87 FCR 112 |
| Applicant: | SZDTQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG335 of 2006 |
| Judgment of: | Raphael FM |
| Hearing date: | 9 August 2007 |
| Date of Last Submission: | 9 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 14 September 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr L J Karp |
| Solicitors for the Applicant: | Christopher Levingston & Associates |
| Counsel for the Respondents: | Mr J Mitchell |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
A writ of certiorari issue bringing the Tribunal’s decision into this Court to be quashed.
A writ of prohibition and/or an injunction issue to restrain the First Respondent, her servants and agents, from acting upon the Second Respondent’s decision.
A writ of mandamus issue remitting the matter to the Second Respondent and directing the Second Respondent to reconsider and redetermine the applicant’s application for a protection visa according to law.
The First Respondent pay the applicant’s costs assessed in the sum of $5,000.00.
The name of the First Respondent be amended to “Minister for Immigration and Citizenship”.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG335 of 2006
| SZDTQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Moldova. He arrived in Australia on 11 September 2000. On 6 October 2000 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 17 November 2000 a delegate of the Minister refused to grant a protection visa and on 28 November 2000 the applicant applied for review of that decision. On 23 January 2003 the Tribunal affirmed the decision not to grant a protection visa. On 28 February 2005 the applicant’s application for review in the Federal Magistrates Court was dismissed. On 28 June 2005 a single Judge sitting in the Federal Court’s appellate jurisdiction allowed the applicant’s further appeal and remitted the matter to the Tribunal for consideration. The applicant attended a hearing before the second Tribunal. On 2 November 2005 the Tribunal wrote to the applicant in accordance with s.424A of the Migration Act 1958 (the “Act”) inviting him to comment in writing before 25 November 2005 on certain information which the Tribunal considered to be relevant to confirming the decision under review. The applicant responded to the Tribunal’s letter on 25 November 2005. On 13 December 2005 the Tribunal determined to affirm the decision not to grant a protection visa and it handed that decision down on 5 January 2006.
The applicant claims to be a person to whom Australia owed protection obligations on the Convention ground of political opinion arising from the following facts. The applicant was an officer in the Soviet Army. Upon independence he transferred into the Moldovan Army. He received a Diploma in Mechanical Engineering prior to his joining the army. He may or may not have worked in a technical unit. He claims that he worked in a combat unit and became involved in combat preparations and strategic planning for the Soviet Army. In the Moldovan Army he worked as the Chief of Conscription for the Kaushany District where he had a military assistant and four civilian employees. He was responsible for interviewing conscripts. The applicant had concerns about the way in which conscripts were treated in the Moldovan Army. He would make clear to them the existence of a form of “hazing” and warned them against it. The applicant was aware that the ability to undertake other forms of national service than conscription was notionally available and advised potential conscripts of this. The applicant also believed that a professional army was a better solution to Moldova’s security than a conscript army. His views and actions in this regard came to the notice of his superiors and he claimed that in 1997 he was forced to resign without full benefits and with only a cursory job reference. This action occurred after other action had been taken against him, described below in the Tribunal’s findings and reasons:
“Critical to the Applicant’s case are the circumstances of his dismissal, as he claims it was politically motivated and of lasting relevance. It was the Applicant’s claim that, as recruitment officer, he promoted alternatives to compulsory military service, drew to recruits’ attention the problem of hazing and planned to write a report which contained warnings. At the second hearing, he also said that he met socially with potential recruits to highlight these problems. By his own account, the Applicant did not perform the professional recruitment tasks with which he was charged. In the Tribunal’s opinion, this alone would have been sufficient to bring an officer to the adverse attention of his superiors, and would have provided the basis for his dismissal. The Tribunal accepts that the military authorities took a range of actions against the Applicant prior to his dismissal – the instructions for him to stop, the warnings, the ostracism by colleagues, the demotion, the stop in salary and the transfer to the archives section. In the Tribunal’s opinion, such disciplinary measures (including the consequent reaction of fellow officers), although perhaps harsh, are consistent with the military’s response to a non-performing or defiant officer.
The Tribunal has some doubts about the completeness and accuracy of the Applicant’s account of the circumstances of his discharge. There may well have been organisational or economic reasons for reducing or streamlining the number of recruitment officers, particularly given the small size of the country and the fact of conscription. However, there is nothing before the Tribunal to suggest that such ‘possibilities’ were relevant to the Applicant’s actual discharge, and it therefore draws no inferences from them.
It was the Applicant’s claim, however, that his discharge was in fact for political reasons. He stressed that his activities were motivated by his political opinion opposed to military conscription in principle and its implementation (namely, the continuation of hazing). This does not, however, establish the motivations of the Moldovan military in ‘dismissing’ him. The Tribunal has only the Applicant’s written statements and oral evidence to go on as a guide to this. As noted above, many of his claims about the authorities’ actions against him (for instance, the warnings and demotions, and his ostracism by colleagues) are in the Tribunal’s opinion consistent with military discipline (and fellow officers’ consequent responses). Other aspects – allegations that he was accepted bribes, was a demagogue and was supporting the Tiraspol-based separatists – are potentially more serious. If senior officers did in fact make such statements and threats, relevant questions which arise include: (a) whether they reflected genuine perceptions or were simply empty threats intended to bring a headstrong officer into line, and (b) even if not based on genuine perceptions, whether they nonetheless had the effect of leading others (particularly other agencies, such as the SIB) to view the Applicant as ‘politically suspect’. These issues could shed light on whether the SIB (security agency) did in fact open a file on the Applicant, and keep him under surveillance, as the Applicant claimed to the Tribunal (though not to the Department). This is relevant because it could provide a basis not just for his ‘dismissal’ in 1997, but the intelligence agencies’ alleged ongoing interest in him.” [CB 185-186]
After his dismissal from the army the applicant was unemployed for a lengthy period of time. There was some suggestion that he relied for income on the leasing of two vehicles. The applicant claimed that he became involved at this time in human rights activities, being effectively a continuation of the advice he was giving to conscripts whilst in the army. He also decided to write a book or articles about the army positing the abandonment of conscription in favour of a small professional army. He informed the Tribunal that he felt that difficulties were being placed in the way of his research into these matters by the army or the SIB (The State Intelligence Bureau). The applicant met an Italian, Ms S, who assisted him with his research and who was present when, on 22 August 2000, three SIB officers came to the home which she shared with his wife and his mother, stated that they wished to have “a chat with the guest from sunny Italy”, searched the house for five hours, deported Ms S and took the applicant into custody for interrogation.
The applicant claimed it was after this incident that he determined to leave the country because he had been accused of passing military secrets to foreign intelligence services and was threatened with court proceedings. It was suggested to him that it would be best if he returned to the SIB office and made a confession. A week after the interview he was given a summons from the general prosecutor’s office to attend. The applicant believed that the state secrets which he was alleged to have been passing on to Ms S were those relating to the mobilization plans for the Moldovan Army. The applicant believed that if he attended the prosecutor’s office he would be arrested and he therefore took advantage of having a passport, as well as a visa to visit Australia that he had obtained in August 2000, to leave Moldova and to fly to Australia via Kiev. Since leaving Moldova he had received three summonses from the central prosecutor’s office requiring him to attend on 29 August, 15 September and 20 September 2000.
The Tribunal came to a number of conclusions about the applicant. It found that the Moldovan military’s discharge of the applicant was not for the essential and significant reason of his political opinion, found that the applicant’s evidence concerning his human rights activities was unsatisfactory and found unconvincing his account of how he managed to work full-time as an engineer at a grain elevator and at the same time remained engaged in political activities without any of his colleagues coming to know about it. The Tribunal was concerned at the applicant’s apparent inability to identify other persons engaged in the human rights activities with which he claimed to be involved or to provide any corroborative material of his work at the centre.
The Tribunal made a finding that the incident of 22 August 2000 did not occur, for which it gave three reasons. Firstly, it accepted certain country information that indicated human rights activists were not persecuted in Moldova proper and in any event the applicant’s inability to corroborate his alleged activities indicated that he was not an activist. Secondly, the Tribunal referred to the applicant’s travel plans and noted that the applicant had taken steps since 1998 which indicated that he was interested in travelling to various countries to which he might migrate, particularly Canada, the United States and Australia. The Tribunal’s conclusion was that the applicant executed a pre-planned, orderly departure from Moldova. Thirdly, it regarded the applicant’s story about the house search, interrogation and subsequent release unconvincing particularly in the light of the fact that he was not charged with any offence at that stage.
At the hearing on 9 August 2007 the applicant filed an Amended Application in which he identified the jurisdictional errors into which he said the Tribunal had fallen:
“1.The Tribunal misconstrued the meaning of the term, “political opinion” in the context of the Refugees Convention.
2.The Tribunal misconstrued the nature of the nexus between the persecution feared by the applicant and the reason for that persecution, in that it failed to consider that nexus in a “common sense way”.
3.The Tribunal failed to address an issue that it identified, and which arose on the evidence and material before it, that being whether the applicant would be perceived as a “human rights defence”.
4.The Tribunal failed to comply with s 423(1) Migration Act, in that it failed to consider information attached to a submission made pursuant to that section.”
I will deal with each ground.
Grounds 1 & 2: The Tribunal misconstrued the meaning of the term “political opinion” and the Tribunal misconstrued the nature of the nexus between the persecution feared by the applicant and the reason for that persecution.
The applicant refers to that part of the Tribunal’s findings and reasons which have been extracted at [2] above. What constitutes political opinion for the purposes of a Convention decision has been described in Canada (Attorney-General) v Ward (1993) 103 DLR 1 at [39] – [41]:
“The more general interpretation of political opinion suggested by Goodwin-Gill, op. cit., at p.31 i.e., “any opinion on any matter in which the machinery of state, government, and policy may be engaged”, reflects more care in embracing situations of this kind.”
In V v Minister for Immigration (1999) 92 FCR 355 Wilcox J approved the dicta of Davies J in Minister for Immigration v Y (1998) FCA 80 where his Honour said:
“In the context of the Convention, an opinion could be thought to be a political opinion if it were such as to indicate that its holder, the claimant for refugee status, held views which were contrary to the interests of the state, including the authorities of the state or which are antithetic to the government and the instruments which enforce the power of the state, such as the Armed forces. …”
See also per Hill J at [33].
The court in Ward also made it clear that a set of facts or activities which constituted the expression of a political opinion could also have another legal characterisation. This view was repeated by the High Court in SZFDE v Minister for Immigration [2007] HCA 35 at [50]. If there is more than one characterisation of a particular set of facts then the Tribunal is obliged to consider it, because failing to do so might mean that the Tribunal has failed to consider a Convention reason for the discrimination or persecution claimed: Minister for Immigration v Sarrazola (1999) 166 ALR 641 at [13]-[17]. In Minister for Immigration v Sarrazola (No 2) [2001] 107 FCR 184 at [52]. Merkel J, giving judgment of the court, said:
“[T]o find, as the RRT did, that she was later pursued and threatened because it was believed she has the means to pay cannot negative the significance of the fact that she was selected as the target to pay because of her family membership. To elevate having the means to pay to be the only reason motivating the respondent’s persecutors is, bearing in mind “the broad policy of the Convention” (see Chen Shi Hai v Minister for Immigration (2001) 201 CLR 293 at 315-316; 170 ALR 553 at 570 per Kirby J as illogical and wrong (see Sarrazola No 2 at 512 [25]) as selecting the brother’s act of failing to pay as the only reason motivating the persecutors.”
In SZFZN v Minister for Immigration [2006] FMCA 1153 at [21] Smith FM, whilst accepting that the Tribunal was bound to look at the essential and significant reason for the persecution [s.91R(1)(a)] did not consider that the words “essential and significant” allowed a Tribunal to ignore “the real or essential underlying Convention reason for a person’s conduct.”
The applicant had made a detailed statement in his application for a protection visa. In regard to his views as to the “hazing” (dedovschina) he said:
“When I made up my mind about the above said reasons I could not be indifferent to violation of human rights in Moldovan Army. I started explaining the conscripts not only their liabilities but put a particular stress on their rights. Several times I raised the issue in our regular meetings. My superiors tried to prevent me from discussing the problems but I did not give up then they fabricated a case blaming me for neglecting my duties and suggested to demote me.”
A similar statement was made at [CB 63].
The applicant argues that expressing an opinion that conscription should not be applied because a professional army is more efficient (or because recruits are badly treated) or advising recruits of their options in respect of military service because of a concern about their possible treatment if they do enter the army is the expression of a political opinion and that if the Moldavan Army was motivated to dismiss him because of these activities then you cannot separate the activity and say that it is just a failure to obey orders for which the punishment that he received was justified. He failed to obey the orders (by which I mean he failed to encourage recruiting) because he believed that the recruitment of conscripts was not the best method of proceeding, and because he believed that the conscripts would suffer hazing and other indignities. In the same way, Mr Ward’s assistance in the escape of the hostages he was guarding was found to be “a political opinion related to the proper limits to be used for the achievement of political change”. Mr Ward would not carry out an assassination. That constituted a political act. The current applicant took steps and expressed views that could have been interpreted as political opinions or acts.
The respondent argues that the Tribunal did not misconstrue the meaning of political opinion. It made findings on the basis that the applicant’s views constituted political opinion and considered whether it was satisfied that his dismissal from the military, which it accepted had occurred, was for reasons of his political opinion. It was not so satisfied. It did not find that the applicant’s views did not constitute political opinion.
The ground that the Tribunal gave for the army dismissing the applicant was: “performance related and operational reasons”. But I cannot see how those reasons can be separated from their cause. If the applicant was not performing, it was because of his political views. No other reason has been put forward. The Tribunal indicates that the applicant’s complaints about the military action taken against him such as warnings and detention and ostracism are consistent with military discipline, but makes no suggestion that there was another cause of this than the reports of his attitude towards conscription or his relations with potential conscripts. The Tribunal poses a question about other causes, the support of Tiraspol-based separatists, accepting bribes and being a demagogue, but at no point makes any findings as to whether or not it accepts they were genuine concerns:
“The Tribunal cannot rule out that senior officers may have angrily levelled abuse at the applicant including alleging that he had taken bribes and supported separatists. The Tribunal is not satisfied, however, that any such statements represented a view of the applicant’s political opinion or led anyone else to form such a view.”
This is all that is said. It is not a finding that these actions “reflected genuine perceptions” or whether, “even if not based on genuine perceptions” they had the effect of leading others to view the applicant as “politically suspect”. Posing the question is not enough. The Tribunal must respond to it in some way or else it will fall into jurisdictional error by not completing its task. Though the Tribunal is not required to make a finding on “every factual matter raised by the applicant”, findings should be stated “in relation to questions material to the ultimate decision: that is, in relation to substantial issues on which the application turns”: De Silva v Minister for Immigration [1999] FCA 1074 per Sackville J at [46], referring to Paramananthan v Minister for Immigration (1998) 160 ALR 24 at 27 per Wilcox J; Muralidharan v Minister for Immigration (1996) 62 FCR 402 at 414. These were questions that were clearly material to the ultimate decision.
In NAVZ v Minister for Immigration [2005] FCA 13 Madgwick J referring to the Full Court’s statement in WAEE v Minister for Immigration (2003) 75 ALD 630 at 641 said, at [46]-[47]:
“It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
If factual issues which could reasonably affect the result have not been resolved and no adequate explanation is apparent, the effect is no different than if those issues had been overlooked. The failure in each case is sufficiently fundamental to amount to jurisdictional error.”
The applicant says that if such jurisdictional error occurred then I should grant the constitutional writs requested, because if the applicant had been discharged for political reasons there could have existed a lasting antipathy towards him which led to his arrest and the search following his involvement with Ms S in researching the activities of the army in relation to conscription and hazing. This was not considered by the Tribunal because it did not consider the underlying reason for the action of the army properly, and the result may have been different if it had.
The respondent argues that the Tribunal did not have to make any positive findings; it merely expressed its finding as a lack of satisfaction. It considered whether the applicant’s dismissal by the military authorities had a causal nexus with his political opinion and was not satisfied that it did: Ram v Minister for Immigration (1995) 57 FCR 565 at 567-8. The respondent argued there were several reasons why the Tribunal was not so satisfied. The first was that the applicant conceded that he did not perform the professional recruitment tasks with which he was charged. This is certainly the case but he gave a reason for it and that reason was a political one. No other reason was advanced. The second was that the applicant’s claims regarding his dismissal were of doubtful completeness and accuracy, noting that at one stage the resignation was voluntary and at another he was forced to resign. But the whole tenor of the Tribunal’s decision is that the applicant was dismissed from the army in circumstances in which a political opinion had been expressed. The third matter was that there was no material that established the motivation of the military for his dismissal. The Tribunal did not find that the applicant was not a witness of truth. It did not find that the applicant had not expressed views about conscription and about hazing and, although it posed the question concerning other possible reasons for the dismissal, it did not answer it. In those circumstances it would not be correct to say that there was no material. There was material: it came from the applicant and it was not disbelieved.
Then the Tribunal suggested that the military’s actions were consistent with military discipline. Certainly they were. The actions of the INLA that were feared by Mr Ward were also consistent with its understanding of military discipline. That did not avail in Ward’s case and should not here. Finally, the Tribunal said that there was an absence of official action against the applicant between his dismissal in 1997 and the incident in August 2000. This is not entirely the case. The applicant said that the military had prevented him from carrying out research with Ms S and this soon led on to the claimed search, arrest and detention. I am not satisfied that there truly was an alternative explanation for the applicant’s dismissal based upon the evidence that he was not performing his assigned duties. I am of the view that as in Okere v Minister for Immigration (1998) 87 FCR 112 the likelihood of his dismissal being as the result of his political activity was irresistible.
It follows from the above that I am of the view that the Tribunal did fall into jurisdictional error in the manner in which it dealt with the applicant’s claims about the reasons for his dismissal from the army. It wrongfully declined to assign any political motive to the action of the army because it failed to accord the applicant’s actions a political characteristic. Those actions were clearly, upon the accepted evidence, political.
Ground 3: The Tribunal failed to address an issue that it identified, being whether the applicant would be perceived as a human rights defender
The Tribunal considered the claim that the applicant was a human rights defender in some detail: [CB187]-[188], and gave reasons I do not believe can be impugned in this court as to why it was not satisfied he was. At [CB188] the Tribunal states:
“All of the above leave the Tribunal not satisfied that the applicant is in fact a “human rights defender”. However, the Tribunal cannot conclude from this alone that the applicant will not be so perceived. It also notes that the applicant insisted that the authorities were not acting against him only because of his claimed human rights activities. As such, the Tribunal cannot dismiss his application solely on the basis that he is not a human rights defender. It therefore proceeds to examine his claims of past harm at the hands of the authorities.”
The Tribunal then goes on to deal with incidences of past harm other than those in relation to his dismissal from the army. After considering each of the matters it states at [CB190]:
“It is a combination of all the above – country information on the treatment of human rights activists, evidence of the Applicant’s long-term plans to leave Moldova and the unsatisfactory account of the SIB’s alleged incidents – which leads the Tribunal to conclude that the Applicant was not subject to any adverse attention from the Moldovan authorities.”
I take those words to mean that he was not the subject of attention from the Moldovan authorities either as an actual human rights defender or a perceived one. The way in which the Tribunal deals with the question that it raises at [CB188] by examining the claims of past harm in the subsequent paragraphs, and then coming to the conclusion extracted above, is persuasive of this approach.
Ground 4: The Tribunal failed to comply with s.423(1) of the Migration Act in that it failed to consider information attached to the submission made pursuant to that section
I accept the respondent’s submission that the Tribunal did make findings in respect of materials submitted by the applicant (see reference thereto at [CB188.10]. The information which was submitted by the applicant did evidence harm to persons, but they were not Moldovans in Moldova proper.
In the light of my findings concerning the Tribunal’s conclusions in respect of the applicant’s political activity I propose to make the orders sought by the applicant in his Amended Application. I order that the respondent pay the applicant’s costs which I assess in the sum of $5,000.00.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 14 September 2007
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