SZELM v Minister for Immigration - [2005] FMCA 1179

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZELM & ANOR v MINISTER FOR IMMIGRATION
& ANOR

[2005] FMCA 1179

MIGRATION – RRT – Non-citizen former USSR residents of Latvia – claiming persecution based on foreign ethnicity – no error in Tribunal’s reasoning – erroneous reasoning on effective protection in Azerbaijan was immaterial.

Migration Act 1958 (Cth), ss.36(2), 417, 424A(1), 424A(3)(a), 474, 474(1), 474(2), 483A, Part 8,
Judiciary Act 1903 (Cth), s.39B

Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264
Minister for Immigration & Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543
NAEQ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 822
NAGV and NAGW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 6
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re Minister for Immigration and Multicultural Affairs, Ex parte Miah (2001) 206 CLR 57

Applicants:

SZELM & SZELN

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2916 of 2004

Judgment of:

Smith FM

Hearing date:

11 August 2005

Delivered at:

Sydney

Delivered on:

11 August 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Mr Riley

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The Tribunal be joined as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
The application is dismissed.
The applicants must pay the first respondent’s costs in the sum of $6,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2916 of 2004

SZELM & SZELN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.483A of the Migration Act 1958 (Cth) which challenges a decision of the Refugee Review Tribunal dated 30 January 2002 and handed down on 21 February 2002. The Tribunal affirmed a decision of a delegate made on 20 March 1998 refusing applications for protection visas to the applicants who are a husband and wife, and also to their son who is not a party to the present proceeding.
Section 483A gives the Court, “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction in a matter such as the present is under s.39B of the Judiciary Act 1903 (Cth) subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, the limitations have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicants qualify for a refugee visa.
I should also note that, except for the purposes of reviewing this Tribunal decision, I have no power to address the applicants’ current situation in relation to their eligibility for permissions to stay in Australia, nor to address other concerns they have arising from their stateless situation in international law. It appears that these matters have been canvassed with the Minister and various departments and foreign posts in recent years, and the applicants expressed frustration about this to me. However, the present proceeding does not raise any of those issues and this is not the forum in which they can be ventilated.
After the proceeding was commenced on 23 September 2004, the Minister brought a motion for summary dismissal on the ground that the application was an abuse of the process of the Court due to previous litigation conducted by the applicants in relation to the same Tribunal decision. I decided that the motion should be listed for hearing concurrently today with the listing of the substantive application for a final hearing. My reason was that it was not clear what was the effect, under principles of estoppel, of the orders and judgment of Wilcox J in the previous litigation (see NAEQ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 822).
The application which was before his Honour was an application implicitly invoking s.39B of the Judiciary Act which, at that time, was subject to the same provisions of Part 8 of the Migration Act as is the present proceeding. Unfortunately, the application did not clearly raise particularised grounds of review, but made allegations that the Tribunal had applied “the wrong test” and that there was “no evidence or other material upon which the Tribunal could base findings relating to an entitlement to return to Azerbaijan” and a further contention in relation to the Tribunal’s findings on Azerbaijan. The applicants were unrepresented before his Honour, and his Honour’s reasons for dismissing the application are brief. He said:
[2] I have pointed out to the applicant the limits on the Court's jurisdiction. He tells me he understands this and he indicates that there is nothing that he can say that would bring his case within the limited areas in which the Court can review a decision of the Tribunal. I think he is correct in this. I have myself read the Tribunal's decision. I say nothing about the findings of fact, which I understand the applicant regards as incorrect or inadequate in some respects. The facts are entirely a matter for the Tribunal to determine, under the legislation as it stands.
[3] However, I think it is clear that there is no error in the Tribunal's reasoning that would attract the jurisdiction of this Court. I would say that even if the relevant rules were those that applied before the legislative amendments that took effect on 2 October 2001. In fact the amendments apply, having regard to the date of the Tribunal's decision. It is not necessary, in this case, to go into the question of the extent of the Court's powers under that law. It is clear, that on any basis, there is no foundation for the Court to intervene in the case. In the circumstances I have no option but to dismiss the application. I propose to do that.
The difficulty in deciding what issues raised in the present proceedings were previously determined by his Honour, is that his Honour’s reference to the Court’s “jurisdiction” has to be read in the light of the then jurisprudence in relation to Part 8. This significantly differed from the current jurisprudence based on Plaintiff S157/2002 (supra). I consider that I should assume that his Honour dealt with the matter on the basis that the Tribunal’s decision was within the definition of privative clause decision in the Migration Act s.474(2) because it purported to be made under that Act, and that his reference to “the limits on the Court’s jurisdiction” was to the then understood constitutional bases on which an applicant could pass through the privative clause in s.474(1). I do not consider that his Honour’s reasons should be read as addressing the preliminary issue, which the High Court has indicated needs to be addressed, that is, whether the Tribunal decision was not a “privative clause decision” to which s.474(1) applied by reason of being affected by jurisdictional error. I therefore cannot find in his Honour’s reasons a conclusion on the issue which is central to my consideration of the present matter, and which has been raised by the first respondent’s notice of objection to competency and response.
Even if there is no issue estoppel, there may be a “pure” judgment estoppel against any further application for judicial review on any ground arising from his Honour’s bare order dismissing the application under s.39B, but the law in this respect is not clear. There may also be room for considering an Anshun estoppel arising from the previous proceedings. This would require me to address whether grounds now raised were not previously raised but could reasonably have been raised, and whether there are special circumstances for allowing them now to be raised. These issues are complicated in the present case, both by the changes in jurisprudence in relation to s.474 and also by recent changes of jurisprudence in relation to principles of effective third State protection. This is because the Tribunal made a finding, to which I shall refer below, applying principles established in Minister for Immigration & Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 and finding that the applicants had “effective protection in Azerbaijan”. However, subsequent to Wilcox J’s judgment, these principles were overruled by the High Court in NAGV and NAGW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 6. These changes in jurisprudence might in an appropriate case provide special circumstances within principles of Anshun estoppel. In this situation, and having read the material, I formed the view that a more efficient way of dealing with the application was first to hear argument upon the substantive merits of the applicants’ application rather than by addressing questions of estoppel and abuse of process. As will appear, this allowed me to reach a conclusion which did not require me to resolve questions of estoppel.
A further contention raised by the first respondent was that relief should be refused even if a jurisdictional error were found in the Tribunal decision, based on the delay of the applicants in commencing the proceedings after their proceeding for judicial review came to an end in May 2002. The applicants have filed an affidavit which suggests in general terms that they have been attempting to keep alive a challenge to the Tribunal’s decision on its merits by way of applications to the Minister under s.417. There is High Court precedent for overlooking even two years’ delay in such circumstances (see Re Minister for Immigration and Multicultural Affairs, Ex parte Miah (2001) 206 CLR 57). On this question, also, I have not found it necessary to reach a conclusion, due to my opinions on the substantive merits of the application.
To explain these opinions, I need to recount the nature of the claims made by the applicants and how they were dealt with by the Tribunal.
The applicants arrived in Australia in November 1997 on Latvian passports issued to non-citizens of Latvia. They applied on 5 December 1997 for a protection visa, assisted by an agent. The applications contained a written statement explaining their claims, and this was repeated when appealing to the Refugee Review Tribunal from the adverse decision of the delegate.
For the present purposes it is sufficient to refer to the summary of their claims in their application to the Tribunal:
My family and I were subjected to persecution not only because I was a “Russian-speaking” person, but also because I was a person of Caucasian origin as well as a former military.
I am a stateless person, because I was deprived by Latvian authorities of citizenship. Practically, I was deprived of all civil and political rights. According to the Latvian “Citizenship Law” I am not entitled to Latvian citizenship, because I used to serve in the army of an alien country. As far as Russian Federation is concerned I could not go to live there because of hatred and hostility against Caucasian people.
The applicants claimed that they were refugees because they had fled Latvia due to persecution and violence against their family for reasons of race and nationality.
The long delay while the matter was before the Tribunal is not explained in the material before me. It included hearings conducted on 15 September 1999 with the applicant husband and on 8 June 2000 with all three applicants. The applicants have put into evidence an unauthenticated transcript of the second hearing. This had not been served on the Minister, who has therefore not had the opportunity to verify its accuracy. However, as I shall indicate below, I do not think it advances the applicants’ case.
In its statement of reasons the Tribunal recounts the claims made by the applicants in documentary form and in more detail at the hearings. Due to the then jurisprudence on the ambit of s.36(2) of the Act in relation to effective protection in a third country, the Tribunal explored with the applicants not only their fears of returning to Latvia, but also their situation in relation to returning to Azerbaijan, which was the country in which both applicants had been born and to which they had substantial connections. The Tribunal also made reference at the hearing to their position in relation to residence in Russia.
The Tribunal said that in the course of the hearing it put to the applicants independent information concerning the situation in Latvia:
The Tribunal put independent information to the applicants which indicated that there was some minor discrimination in Latvia, that the citizenship laws allowed for people to progress towards citizenship, and that all of them, could do so. The husband said "I do not quite agree, I was in the military and I cannot get citizenship". The Tribunal put that even if that were true it is not a determining factor of itself. He said "I understand, citizenship or a piece of paper would not protect me". He claimed that there was unofficial discrimination "to squeeze people like me out of the country". The Tribunal put that independent evidence indicated that people from other former Soviet countries were migrating to Latvia due to its stable economic situation. He said "it’s a lie … me I'm not interested in the economy. What I'm trying to get across is why would I leave if the attitude was okay to me".
This is a summarised account of a longer passage shown in the transcript in which, in my opinion, the applicants were given sufficient opportunity to comment upon the country information which the Tribunal’s research had brought to its attention and upon which it subsequently relied.
The Tribunal’s reasons set out extensive material about the situation in Latvia and Azerbaijan. Under the heading “Findings and Reasons” it accepted that the applicants were formerly residents in Latvia, that they were all born in Azerbaijan, and that there were restrictions in Latvia on them based on the fact that they were not citizens. It accepted that their claims were to be assessed against Latvia by reference to the alternative wing of article 1A(2) of the Refugees’ Convention definition of refugee, that is, as persons “being outside the country of his former habitual residence” where that country was Latvia.
The Tribunal then addressed, in my view sufficiently, the elements of the history given by the applicants concerning discrimination in employment, their son’s schooling, incidents claimed to have been suffered by the applicant husband based on his ethnicity, and the family’s general situation in Latvia based on general discrimination against ethnic and national groups other than Latvians.
In relation to discrimination in employment, the Tribunal referred to the applicants’ own history of employment in Latvia. It accepted that there were some restrictions in Latvia in relation to some occupations which were discriminatory. But it concluded:
I do not consider restrictions on certain types of position based on citizenship is sufficiently serious as to amount to persecution. I am satisfied that such does not amount to a serious restriction on his right to earn a livelihood.
The Tribunal accepted that the son had faced some bullying but found that the incidents were not of:
Such a seriousness as could be considered as persecution as meant by the Convention.
The Tribunal assessed incidents in 1992 and 1994 where the applicant had contacts with Latvian police in which he had suffered some abuse, and found that:
Though concerning at the time, these matters did not result in any problem or harm. I find that the applicant husband does not have a well-founded fear of harm and the chance of him suffering any further harm is remote and insubstantial.
The Tribunal addressed a third incident of abuse which the family members raised in the course of the hearings, and which they claimed had occurred in November 1995. However the Tribunal considered, in the light of the lateness of their claim and how the evidence had been given, that:
The applicants have manufactured this claimed instance of harm, and to that extent are not credible witnesses.
In relation to concerns about general discrimination, the Tribunal concluded:
Having considered the independent evidence I find that the general discrimination is not of a type nor a seriousness as could be considered as persecution as meant by the Convention. I accept the applicants claim that there is some discrimination, and restrictions on the obtaining of Latvian citizenship. For example they must reach a certain standard of Latvian language knowledge in order to obtain citizenship and the Latvian government requires non-citizens to apply for citizenship and pass a Latvian test. I am not satisfied that the requirement of the Latvian government for its applicants for citizenship to pass a language test to obtain citizenship, speak Latvian, and fine them if they do not, is sufficiently serious conduct to amount to persecution. I note that there are some restrictions on the attainment of citizenship if a person was a ranking officer in the former Soviet military, however the applicant husband was in no such position. There is no evidence to suggest that there is any further or other consequence than this.
Having taken into account all of the claims and evidence of the applicants I do not accept that the matters referred to them singularly or cumulatively are of such a seriousness as could be considered as persecution as meant by the Convention. It is also apparent that after the last claimed major incident (in November 1995), the applicants remained in Latvia for over two years without any claimed instance of harm until they departed the country (in November 1997).
Overall, I am not satisfied that the applicants have a well-founded fear of persecution for reasons of a Convention ground.
I have considered the Tribunal’s reasoning in relation to the applicants’ fears of persecution if returned to Latvia, and have not been able to find errors amounting to jurisdictional error in the reasoning. I consider the Tribunal has sufficiently addressed the claims that were put before it and does not show any misconception of the relevant law.
Before affirming the delegate’s decision, the Tribunal also addressed the applicants’ situation in relation to Azerbaijan and made a finding:
Even if I were to find that the applicants had a well-founded fear in relation to Latvia, they would not satisfy the Convention definition as they have effective protection in Azerbaijan.
As I have indicated above, in this section of its reasons the Tribunal applies law which has been overruled by the High Court. However I accept submissions by counsel for the Minister that the Tribunal presented this section of its reasons as subordinate and alternative grounds for affirming the delegate’s decision. I consider that its decision is not vitiated jurisdictionally by any error of fact or law which might appear in this part of its reasons.
My conclusion as to this is significant, since the dominant focus of the applicants’ application and submissions to me has been the Tribunal’s factual findings in relation to effective protection in Azerbaijan. I consider that these submissions did not address the legally significant part of the Tribunal’s reasoning, and that there is therefore no need for me to enter into their details. They were, in any event, largely focused upon challenging the factual correctness of the Tribunal’s conclusions based on what appears to be evidence which was not before the Tribunal and circumstances which happened subsequent to the Tribunal’s decision.

The application which they filed relied on the proposition that the Tribunal was in breach of s.424A(1) by reason of failing to put independent information to the applicants as required by that provision. It does indeed appear to be correct that the Tribunal did not put any material to the applicant by way of a written invitation for comment under that section, however the information that is identified in their complaint was all information concerning the general situation in Azerbaijan and perhaps also Latvia, and I accept the submission from counsel for the Minister that the obligation to serve an invitation under s.424A(1) was excluded in relation to this information by s.424A(3)(a) (see Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 and subsequent cases which have followed that decision).
The applicants were unable, today, to point to any aspect of the Tribunal’s reasoning in relation to their situation in Latvia which raised jurisdictional error on the part of the Tribunal.
For the above reasons I consider that their application must be dismissed. In the absence of a finding of jurisdictional error affecting the Tribunal decision, the Tribunal’s decision was a privative clause decision for which relief is excluded by s.474(1) and I must therefore uphold the objection to competence. As I have explained, I have not found it necessary to reach conclusions on the Minister’s notice of motion.

ORDER DELIVERED

I think the case was made more complicated by the earlier proceedings, and that it was reasonable for the Minister to raise them by way of an interlocutory application. I therefore consider the additional expenses in relation to the motion should be covered in a costs order favouring the Minister.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 29 August 2005