SZDTQ v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 867

FEDERAL COURT OF AUSTRALIA

SZDTQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 867

MIGRATION – appeal – where Tribunal made no finding as to likely treatment on return to country of nationality – where Tribunal nonetheless satisfied that effective State protection is available in Moldova – whether Tribunal failed to determine the appropriate issues

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 applied

SZDTQ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 480 of 2005

BRANSON J
28 JUNE 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 480 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDTQ APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	28 JUNE 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Refugee Review Tribunal be joined as a respondent to this appeal.

2.The appeal be allowed.

3.Orders (1) and (2) of the orders made by the Federal Magistrates Court on 28 February 2005 be set aside.

4.An order in the nature of certiorari issue to quash the decision of the Refugee Review Tribunal made on 23 January 2003. 

5.An order in the nature of mandamus issue directing the Refugee Review Tribunal to determine the appellants’ application to it according to law.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 480 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDTQ APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BRANSON J
DATE:	28 JUNE 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an appeal from a judgment of the Federal Magistrates Court delivered on 28 February 2005.  The judgment of the Federal Magistrates Court dismissed the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) by which a decision of a delegate of the respondent not to grant the appellant a protection visa was affirmed.

   DECISION OF THE TRIBUNAL

2. The Tribunal apparently accepted that the appellant is, as he claims, a citizen of Moldova who arrived in Australia on 11 September 2000.

3. The written reasons for decision of the Tribunal summarise the appellant’s claims as follows:

   ‘The applicant claims to fear persecution by the Moldovan authorities for his actual and imputed political opinion on the basis that he was a campaigner for human rights in Moldova, specifically in relation to compulsory military service and the Constitutional entitlement to alternative service.  He claims that if he returns to Moldova he will be falsely accused of passing State secrets in the course of his activities in relation to alternative military service.’

4. The Tribunal noted the following claim which was one of a number of claims made by the appellant.  Three officers from the Moldovan security service came to the appellant’s home early on the morning of 22 August 2000 and searched it for approximately five hours.  During this incident a researcher working with the appellant, who was not a Moldovan resident, was questioned briefly.  Her laptop and papers were then confiscated and she was given an air ticket to Rome and told that she would not be permitted to re‑enter Moldova in the near future.  The appellant was driven to the headquarters of the Moldovan security service and interrogated by a plainclothes officer until late at night when he was released.  While under interrogation the appellant was shown photographs of himself in discussion with his fellow researcher and audio and visual recordings of their meetings.  He was accused of passing military secrets to foreign intelligence services and of conspiring with unknown persons to undermine Moldova’s defensive capability.  When he was released he was told to think things over carefully and then to return and make a confession.  A week later he received a summons from the General Prosecutor’s Office. He went to a well‑known lawyer for advice.  The lawyer advised him but declined to represent him because he said that the security service made trouble for those who stood in its way.  The appellant did not go to the Prosecutor’s office in response to the summons because he was afraid that once there he would be arrested and held in detention for months with criminals.  Rather, on 8 September 2000, the appellant crossed the Moldovan border into Ukraine and flew from Kiev to Australia using an Australian visa earlier obtained by him.

5. The Tribunal expressed doubts about the truthfulness of the appellant’s claims concerning the Moldovan security service but made no finding that the claims were untrue.  The Tribunal was satisfied that even if the claims were true effective State protection was available to the appellant in Moldova.  At [43]‑[46] of its reasons for decision the Tribunal stated:

   ‘43.I have set out above the various avenues of redress which were, and remain, available to the applicant for the illegal harassment by officials in the SIB and the Prosector’s office, assuming that the applicant’s claims of adverse attention by reason of his political views and activities are true.  Those avenues include the Moldovan court system, the various human rights organisations present in Moldova or set up by the Moldovan government, and the European Court of Human Rights, access to which is available to Moldovan citizens.

   44.The applicant made no serious attempt to seek the protection of the  Moldovan government against the unlawful harassment by officers in the SIB and the Prosecutor’s office and I am satisfied, on the information available to me, that such protection would have been, and in the future will be, forthcoming.  I cannot be satisfied that there was, or would in the future be, a failure of State protection where the Moldovan government was not given an opportunity to respond to the harm alleged by the applicant, given my finding that such protection would have been, and in the future would be, forthcoming.

   45.In such circumstances, I cannot be satisfied that for a person such as the applicant in the circumstances of his claims the protection which would normally be expected of a government is lacking or denied in Moldova, nor that such protection is so ineffectual that the applicant’s fear of a recurrence of that unlawful discrimination is well‑founded.

   46.I find that the applicant’s fear of serious harm by reason of his political opinion (or any other Convention ground which might arise on the claims made by the applicant, such as particular social group) is not well‑founded because there is in Moldova adequate protection available from the State for unlawful harassment by corrupt officials or officials acting unlawfully and unconstitutionally.’

   REASONS FOR JUDGMENT OF THE FEDERAL MAGISTRATES COURT

6. The learned Federal Magistrate noted that the appellant had not had the assistance of a legal representative.  His Honour very properly gave consideration to the reasons for decision of the Tribunal to see if any ground of judicial review might have been argued on the appellant’s behalf.  His Honour dismissed the appellant’s application for judicial review because he could not identify any available ground of review.

   CONSIDERATION

7. The appellant, who is still without legal representation, filed an amended notice of appeal in which he challenged the finding of the Tribunal that adequate State protection would be available to him in Moldova.  He further complained about the Tribunal having placed weight on his not having made a serious attempt to seek the protection of the Moldovan government when he felt it necessary to flee from Moldova to protect himself.

8. Two aspects of the reasons for decision of the Tribunal cause me concern.

9. First, the Tribunal, in effect, proceeded on the assumption that the claims made by the appellant were true.  Those claims included the claims set out in [4] above.  That is, the Tribunal effectively proceeded on the basis that the Moldovan authorities had:

   (a)maintained photographic, audio and video surveillance of the appellant’s meetings with a fellow researcher;

   (b)searched the appellant’s home for approximately five hours, apparently without judicial authority;

   (c)during the course of the above search, confiscated the laptop computer and papers of a foreign guest in the applicant’s home and handed her an air ticket to Rome telling her that she would not be permitted to return to Moldova in the near future; and

   (d)subjected the appellant to interrogation at the headquarters of the security service until late at night.

10. The Tribunal did not expressly give consideration to whether the appellant would be subjected to the same or like conduct at the hands of the Moldovan authorities should he return to that country.  However, when the Tribunal referred in [43] of its reasons for decision to the various avenues of redress available to the appellant in Moldova for ‘illegal harassment’ it was presumably referring to future illegal harassment.  The future illegal harassment that the Tribunal had in mind must, I think, be assumed to be illegal harassment of the kind previously experienced by the appellant.  I therefore conclude that the Tribunal considered that there was a real chance that if the appellant returns to Moldova he will again face illegal harassment of the kind identified in [9] above.  In this circumstance, in my view, the Tribunal was required to give consideration to whether that illegal harassment could itself constitute persecution in respect of which Moldova was unwilling or unable to protect the appellant.  In this respect it was open to the Tribunal to regard as significant first, that there was no apparent suggestion that the officers from the Moldovan security services who came to the appellant’s home were ‘rogue’ officers and secondly that a well‑known lawyer apparently feared to represent the appellant in respect of his conflict with the Moldovan security service.  The availability of ex post facto redress in the Moldovan courts or the European Court of Human Rights in respect of serious illegal harassment might not, in such circumstances, defeat the appellant’s claim to have a well‑founded fear of persecution.

11. Secondly, the terms in which [44] of the Tribunal’s reasons for decision are expressed (ie ‘I am satisfied’ and ‘I cannot be satisfied’) suggest that the Tribunal formed a view on whether State protection would be available to the appellant on the balance of probabilities.  The appropriate test for the determination of whether a fear of persecution is well‑founded is whether there is a ‘real chance’ of persecution, in the sense of a substantial as distinct from a remote chance (Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379). While I recognise that the reasons for decision of the Tribunal are not to be read with excessive strictness, my unease concerning the approach adopted by the Tribunal in this respect is heightened by the circular nature of the reasoning contained in the final sentence of [44] of the Tribunal’s reasons for decision. After giving careful consideration to the reasons for decision of the Tribunal as a whole, I have concluded that the Tribunal’s satisfaction that State protection would be available to the appellant in Moldova was a satisfaction that it was more likely than not that such protection would be available.

    CONCLUSION

12. In my view, the learned Federal Magistrate erred in concluding that the decision of the Tribunal was not affected by jurisdictional error.  In my view, the Tribunal misapprehended the legal test to be applied and consequently failed to determine the appropriate issues.

13. The appeal will be allowed.  The Tribunal will be joined as a party to this appeal.  Orders (1) and (2) of the orders made by the Federal Magistrates Court on 28 February 2005 will be set aside and in lieu thereof it will be ordered that orders in the nature of certiorari and mandamus issue to the Tribunal.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:             28 June 2005

The Appellant appeared in person
Counsel for the Respondent:	M Allars
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	14 June 2005
Date of Judgment:	28 June 2005