SZGDO v Minister for Immigration
[2007] FMCA 1183
•31 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGDO v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1183 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming particular social group persecution in Argentina – applicant not believed – Tribunal also finding no Convention nexus with the applicant’s claims and that the applicant enjoyed a right to live in a third country – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.36, 91N, 424A |
| Koroitamana v Commonwealth of Australia (2006) 227 ALR 406 Minister for Immigration; Ex parte Applicant S20/2003 (2003) 198 ALR 59 Morato v Minister for Immigration (1992) 39 FCR 401 NAGV & NAGW of 2002 v Minister for Immigration [2005] HCA 6 Ram v Minister for Immigration (1995) 57 FCR 565 Re Minister for Immigration; Ex parte Ame (2005) 222 CLR 439 Singh v Commonwealth (2004) 209 ALR 355 Sykes v Cleary (1992) 176 CLR 77 |
| Applicant: | SZGDO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1437 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 20 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 31 July 2007 |
REPRESENTATION
| Solicitors for the Applicant: | Mr J B Hajje John B Hajje & Associates |
| Counsel for the Respondents: | Mr J Mitchell |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1437 of 2007
| SZGDO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 7 April 2007 and was handed down on 19 April 2007. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
This matter has an unusual procedural history. The history is adequately summarised in written submissions filed on behalf of the applicant and the Minister. I adopt as background for the purposes of this judgment, with necessary amendments, paragraphs 1 through to 7 of the applicant’s written submissions filed on 9 July 2007 and paragraphs 2 through to 3.5 of the Minister’s written submissions filed on 18 July 2007.
The applicant was domiciled in Argentina throughout her life since her birth. She came to Australia. She arrived in Australia on 26 February 2003 with her husband and two children as visitors.
On 12 May 2003 the applicant along with her husband and the two children lodged a 866 protection visa application to DIMIA, the first respondent’s Department on account of fear they faced to their lives in Argentina due to lack of state protection against the “terror gangs”, as they belonged to a middle class social group in Argentina who were harassed, harmed and persecuted by those gangs, motivated by monetary gain.
The applicant and her husband made individual claims by submitting 866 protection visa application form “C” each, claiming their own claims to be a refugee as per the statement of claims that was submitted along with the protection visa application. The two children applied as members of the family unit.
These applications were considered by the delegate to the first respondent and on the following day, ie 13 May 2003, the delegate of the first respondent wrote to the applicant that he refused to accept the applicant’s application as valid and while informing the husband that his and the two children’s applications were being considered.
While refusing the applicant’s application, the delegate informed the applicant that by virtue of s.91N of the Migration Act 1958 (Cth) (“the Migration Act”) she was a national of more than one country and therefore under s.91P(2), her application was invalid.
Two days later, the delegate advised the applicant’s husband that his application along with the two children (including another subsequent application of a family member) were all refused because they did not satisfy the delegate that Australia had protection obligations under the Refugees Convention.
On 14 August 2006 I ordered that a writ of certiorari issue quashing the decision that the protection visa application made by the applicant was invalid and that a writ of mandamus issue requiring the Minister to consider the applicant’s protection visa application according to law.
On 6 December 2006 a delegate of the Minister refused to grant the applicant a protection visa. On 8 December 2006 the applicant filed an application for review with the Tribunal. On 5 March 2007 the applicant attended a hearing before the Tribunal. On 6 March 2007 the Tribunal invited the applicant to comment on certain information particularised in the invitation (the “424A letter”): court book (CB) 189-192. On 20 March 2007 the applicant responded to the 424A letter: court book (CB) 195-9.
Applicant’s application for review
The applicant claimed that she feared persecution because she had witnessed the robbery of her sister’s home in 2001 and her husband had been robbed on several occasions. She also claimed that as an employee at the National Cemetery she had been privy to information concerning malpractices involving burials of “unregistered” bodies. She claimed that in the middle of 2002 she disclosed some of these practices to a friend of her husband who was later killed. An investigation discovered that she had leaked certain information to her husband’s friend. The applicant and her children were subsequently threatened. She feared persecution and harassment if she returned to Argentina and submitted that the police were unwilling or unable to protect her.
The Tribunal did not accept the applicant’s claims based on the following reasons:
a)The claims in respect to her disclosure of malpractices at the National Cemetery were not mentioned in her original application for protection visa and had been fabricated to enhance her claims.
b)There were inconsistencies in her evidence relating to her disclosure of malpractices at the National Cemetery.
c)The fact that she continued to work at the cemetery and live in the same house between June 2002 and November 2002 cast doubt on the claim that she and her family had been subjected to threats.
The Tribunal found that, even if her claims were accepted, they did not have a Convention basis.
The Tribunal further found that Australia did not have obligations to the applicant as she was a national of Italy and she had not taken all possible steps to avail herself of a right to enter and reside in Italy.
Accordingly, the Tribunal affirmed the decision under review.
The application for judicial review
These proceedings began with a show cause application filed on 7 May 2007. Clearly, the application was filed within time. The applicant now relies upon an amended application filed on 6 July 2007. There are two grounds in that amended application:
a)the Tribunal made a jurisdictional error by failing to take into account relevant material; and
b)the Tribunal made a jurisdictional error in that the Tribunal made an error of law in its construction of the relevant law applicable in this case.
No particulars were provided with the application and unfortunately there is a discontinuity between the grounds in the amended application and the applicant’s written submissions. Those written submissions assert that there is a strong possibility that the applicant may well face persecution and/or torture if she is forced to return to Argentina and that there continues to be a “real chance” that she will face persecution in Argentina on the basis of her protection visa claims. It is then submitted that the Tribunal decision was unreasonable in the Wednesbury sense in that the Tribunal found that the applicant could seek protection in Italy when she emphatically stated that this option was not available to her at the time she fled Argentina to seek refuge in Australia. The submissions assert that there would be a delay of three to four years in obtaining an Italian passport.
The submissions further assert that the Tribunal unreasonably concluded that the applicant’s reasons for the fear of persecution she claimed were “new evidence” but in actual fact they were intrinsically interwoven with her claims in her original protection visa application in 2003. The submissions assert that the applicant had never been given the opportunity to be heard and to canvass her substantive claims of persecution.
A further difficulty is that the Minister’s written submissions were responsive to the original, rather than the amended, application. Counsel for the Minister had not seen the amended application before the trial of this matter on 20 July 2007. While the written submissions of both parties were of limited assistance, I took oral submissions on the day of the trial. The parties’ legal representatives agreed that there were three issues to resolve:
a)whether the Tribunal erred in finding that Australia did not have obligations to the applicant as she was a national of Italy and had not taken all possible steps to avail herself of a right to enter and reside in Italy;
b)whether the Tribunal erred in finding that the applicant had not mentioned in her original protection visa application her claims in respect to the disclosure of malpractices at the National Cemetery in Argentina; and
c)whether the Tribunal erred in finding that there was no Convention nexus to the applicant’s claims.
The evidence I have before me is limited to the court book filed on 15 June 2007. The solicitor for the applicant had filed an affidavit with the show cause application on 7 May 2007. That simply annexed the decision of the Tribunal which is also reproduced in the court book.
Reasoning
I should make clear at the outset that there is no substance to the assertion of Wednesbury unreasonableness in the applicant’s written submissions. There is some doubt whether the principle of Wednesbury unreasonableness applies at all in relation to decisions of the Refugee Review Tribunal[1]. Even if the principle applies, it is obvious from the extremely detailed and carefully prepared reasons of the Tribunal that the Tribunal gave exhaustive consideration to the applicant’s claims. The merits of the Tribunal decision are, of course, beyond the scope of these proceedings but it is nonsense to suggest that the Tribunal’s decision was irrational, perverse or illogical in any sense that might establish jurisdictional error. When I set aside the decision of the delegate that the applicant’s protection visa application was invalid and required the visa application to be considered according to law, I was concerned that the applicant was entitled to receive proper consideration of her claims under the Migration Act. Subject to the matters I deal with below, I am satisfied that the applicant has now received the consideration of her claims to which she was entitled.
[1] see the decision of the High Court in Minister for Immigration; Ex parte Applicant S20/2003 (2003) 198 ALR 59
The adverse credibility finding
At the Tribunal hearing on 5 March 2007, the presiding member noted that he had three separate sets of claims from the applicant and went through them one by one. The presiding member told the applicant that she had raised a new set of claims in her review application. Before the Tribunal she claimed that while she had been working at a cemetery at Buenos Aires she had somehow witnessed something to do with organ trafficking. The presiding member questioned the applicant about that claim. On 6 March 2007 the Tribunal wrote to the applicant through her authorised representative pursuant to s.424A of the Migration Act inviting comment on a number of issues. One of those was the Tribunal’s view that the applicant’s claim concerning what she said she had witnessed at the National Cemetery had not been mentioned in her protection visa application and was a recent invention[2]. The Tribunal did not accept the explanation proffered by the applicant’s representative that the applicant’s statement dated 26 October 2006 was her first opportunity to raise the claim concerning the events at the National Cemetery. The presiding member said in his reasons:
In her response received by the Tribunal on 20 March 2007 the applicant reiterated her new claims and said that ‘the horrible grave incident in the cemetery’ had ‘impacted most on our decision to flee Argentina’. With regard to her failure to mention her new claims earlier she said that ‘[a]ll the above events which I wanted to bring up at the interview were interwoven with early events of robberies and snatch thefts suffered by members of my family’ and she claimed that it had only been in December 2006 that she had been given ‘the first opportunity to have my claims for a protection visa heard by the department’. However the new claims were not ‘interwoven’ with her original claims: as set out above, and as noted in the Tribunal’s section 424A letter, they were simply not mentioned at all. As the Tribunal foreshadowed was a possibility in its letter, I take the view that, if there was any truth in the claims the applicant has made in her statement submitted to the Department dated 26 October 2006, she could have been expected to have mentioned these claims in her original application or in a statement accompanying that application.
[2] CB 190
The presiding member had other credibility concerns about the applicant’s claim which are discussed in the Tribunal’s reasons[3]. The Tribunal rejected that claim.
[3] CB 226-229
The applicant concedes that the National Cemetery claim was not mentioned in the protection visa application made on 12 May 2003 and reproduced in the court book at pages 1 to 31. However, the applicant’s solicitor suggested from the bar table that in a separate protection visa application made on her own behalf (rather than as a member of her family group) the applicant had attached a statement which said that there were “other important matters” which she was afraid to mention in her statement. Unfortunately for the applicant, there is no evidence available to support that suggestion. There is also nothing to suggest that the alternative form of the statement was available to the Tribunal. I find that the adverse credibility finding made by the Tribunal in relation to the applicant’s claim about the events in the National Cemetery was open to the Tribunal on the material before it. Nothing was overlooked. No jurisdictional error is disclosed.
The lack of a Convention nexus
The Tribunal found that, even if the applicant’s claims that she fled criminals in Argentina were accepted (which they were not) there was no Convention nexus to those claims. The presiding member said[4]:
Furthermore, and in the alternative, even if I were to accept the applicant’s claims, which for reasons given above I do not, as I put to the applicant in the course of the hearing before me I do not accept that one or more of the five Convention reasons is the essential and significant reason for the persecution she fears as required by paragraph 91R(1)(a) of the Act. As I noted, it is well-established that people who have given information to the police about criminal activity do not for that reason alone come within the definition of a refugee (compare Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401). As I explained to the applicant, if such people are targeted by the criminals against whom they have given evidence, it is not for reasons of their membership of any ‘particular social group’ but because of their actions in giving information to the police.
The applicant’s representatives suggested that she feared being persecuted for reasons of her membership of a particular social group defined as ‘government executives whose conscience or opinion against malpractices in the Department made them targets of persecution and selective harassment’. However, as I explained to the applicant, so defined, the suggested particular social group includes the feared persecution in the definition and the High Court has said in Applicant A (referred to above) that this is not permissible. If the particular social group were to be defined as “government executives who have expressed an opinion against malpractices in the Department’ there would be a problem because there is nothing in the applicant’s evidence to suggest that she had been persecuted for reasons of her membership of this group. As I put to her, even if her evidence were accepted, all it suggests is that she was threatened by the criminals engaged in organ trafficking who feared that by giving information to the police she had threatened their illegal activities.
The applicant said that she had fled for her personal safety and that of her family. She said that this was a very extreme mafia with connections at all levels of the authorities, politicians and the police. She said that despite what might appear she had desperately needed to leave the country. However, as I explained to the applicant, not everyone who fears persecution comes within the definition of a refugee because of the requirement that the feared persecution be ‘for reasons of’ one of the five Convention reasons. For the reasons given above I do not accept that the applicant fled Argentina fearing for her personal safety or that of her family but even if I were to accept her claims – which as I have said I do not – I do not consider that one or more of the five Convention reasons is the essential and significant reason for the persecution she fears as required by paragraph 91R(1)(a) of the Act.
As I noted in the course of the hearing before me, the applicant’s then representative suggested to the Department in 2004 that the applicant and her family feared that people would believe that, because they were coming back from Australia, they were loaded with money. The applicant said that this was true because Argentina was going through a very unsettled time with kidnappings and robberies. She said that she was most concerned for the security of her children. She said that in Australia one did not have to worry about being robbed or kidnapped or killed. The applicant said that her elder son had been badly affected by his fears, the need to put bars on windows and not being able to go here or there. She said that he was having nightmares about returning to Argentina.
However, as I put to the applicant, once again I do not accept that any fear that the applicant may hold on her own account or on behalf of her husband or her two sons that, if she and her family return to Argentina, people will believe that, because they are coming back from Australia, they are loaded with money, bears the requisite connection with one or more of the five Convention reasons. As I put to her, there is nothing in the evidence before me to suggest that Argentineans returning from Australia are a ‘particular social group’ in Argentina. I accept that criminal activity of the sort referred to in the statement accompanying the applicant’s original application and in the evidence which she gave to the Tribunal (differently constituted) at the hearing in relation to the application of her husband and her two sons and at the hearing before me, in particular robbery and kidnapping, is a particular problem in Argentina. I do not accept, however, that, as submitted by the applicant’s original representative, the criminals in Argentina target middle class citizens.
As I put to the applicant, the evidence available to me suggests that it was not just the rich who were targeted by criminals at the time the applicant and her family left Argentina in 2002: one did not have to be wealthy to be the victim of a robbery or a kidnapping (‘Elizabeth Love, ‘Kidnapping rife in crippled Argentina’, The Guardian, 29 August 2002, CX70337). As I put to the applicant, criminals target people on the basis that they believe that those people have goods or money which the criminals want: they are not singling out their victims for reasons of their membership of any ‘particular social group’ for the purposes of the convention (compare what Burchett J, with whom O’Loughlin and R D Nicholson JJ agreed said in Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 569). Once again, so far as the applicant’s fear of the general level of crime in Argentina is concerned, I do not consider that one or more of the vie convention reasons is the essential and significant reason for the persecution she fears are required by paragraph 91R(1)(a) of the Act.
[4] CB 229-230
In my view, the reasoning of the Tribunal on this issue is rational, logical and consistent with authority. The conclusion reached for the Tribunal was open to it on the material before it. Nothing was overlooked. No jurisdictional error is disclosed.
Italian nationality
The Tribunal found that, even if the applicant had a well-founded fear of being persecuted for a Convention reason in Argentina, Australia owed no protection obligations to her because of the operation of s.36(3) of the Migration Act. The presiding member said[5]:
Furthermore, even if I were to consider that the applicant had a well-founded fear of being persecuted for a Convention reason if she returns to Argentina now or in the reasonably foreseeable future - which for reasons given above I do not - it would still be necessary to consider the effect of subsection 36(3) of the Act in the present case. As the Tribunal noted, in its section 424A letter, the applicant’s mother’s passport, a copy of which was submitted along with her original application, indicates that the applicant’s mother is a citizen of Italy. The Consulate General of Italy in Sydney has confirmed that, generally speaking, a person born out of Italy to a father or mother of Italian citizenship is an Italian citizen (E-mail message from the Consulate General of Italy in Sydney to the RRT dated 12 February 2007). As set out above, subsection 36(3) of the Act states that Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in any country apart from Australia, including countries of which the non-citizen is a national. Subsection 36(6) states that the question whether a non-citizen is a national of a particular country is to be determined solely by reference to the law of that country. As indicated by the Italian Consulate, the law of Italy is quite clear in that children one of whose parents is a citizen are themselves citizens of Italy by birth. (I note that I do not consider that any sensible distinction is to be drawn in this context between the term ‘citizen’ - which refers in this sense to a member, native or naturalised, of a State - and ‘national’ - which refers in this sense to a citizen of a specified country: the terms are interchangeable as illustrated by their usage by the High Court in cases such as Koroitamana v Commonwealth of Australia (2006) 227 ALR 406, Singh v Commonwealth (2004) 209 ALR 355, Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame (2005) 222 CLR 439 and Sykes v Cleary (1992) 176 CLR 77.)
As the Tribunal noted in its section 424A letter, subsection 36(4) of the Act provides that subsection 36(3) does not apply to a country if the non-citizen has a well-founded fear of being persecuted in that country for reasons of race, religion, nationality, membership of a particular social group or political opinion. As the Tribunal noted, however, the applicant has not claimed that she fears persecution for a Convention reason in Italy. As the Tribunal also noted, subsection 36(5) of the Act provides that subsection 36(3) does not apply to a country if the non-citizen has a well-founded fear that the country will return the non-citizen to another country where the non-citizen will be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. As the Tribunal noted, however, given that the basis of the applicant’s right to enter and reside in Italy is that she is a citizen of that country by birth, it is difficult to accept that she has a well-founded fear that Italy will return her to any country where she will be persecuted for a Convention reason and the applicant has made no such claim. As the Tribunal stated, this suggests that Australia is to be taken not to have protection obligations to the applicant in accordance with subsection 36(3) of the Act because she has not taken all possible steps to avail herself of her right to enter and reside in Italy as a citizen of that country by birth.
In her response received by the Tribunal on 20 March 2007 the applicant repeated that, as she had said at the hearing before me, she had not applied for an Italian passport because it would have taken three to four years, owing to the number of people trying to leave Argentina at the time. She said that her ‘first and immediate option’ had been to come to Australia. At the hearing before me the applicant’s representative said that he was instructed that the applicant had in fact applied for Italian citizenship in Argentina but the process there took a long time, three or four years, and because of the ‘selective harassment’ she had experienced in Argentina she had had to flee without awaiting the outcome of the application. The applicant herself has not claimed that she ever made such an application in Argentina and neither she nor her representative have suggested that she has made such an application while she has been in Australia.
Whatever the applicant’s motivation in electing to travel to Australia, the law in Australia is clear: under subsection 36(3) of the Act, Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in any country apart from Australia, including countries of which the non-citizen is a national. Having regard to the advice of the Consulate General of Italy in Sydney referred to above (E-mail message from the Consulate General of Italy in Sydney to the RRT dated 12 February 2007) and to the fact that the applicant’s mother is an Italian citizen, as evidenced by her passport, I find that the applicant is a national of Italy and that she has not taken all possible steps to avail herself of her right to enter and reside in Italy. As referred to above, the applicant has not suggested that she fears persecution for a Convention reason in Italy nor that she fears that Italy will return her to any country where she will be persecuted for a Convention reason. I find, therefore, that Australia is taken not to have protection obligations to the applicant in accordance with subsection 36(3) of the Act.
[5] CB 230-232
Section 36 of the Migration Act provides as follows:
(1) There is a class of visas to be known as protection visas.
Note: See also Subdivision AL.
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)a non‑citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(b)a non‑citizen in Australia who is the spouse or a dependant of a non‑citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa.
Protection obligations
(3)Australia is taken not to have protection obligations to a non‑citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non‑citizen is a national.
(4)However, if the non‑citizen has a well‑founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion, subsection (3) does not apply in relation to that country.
(5)Also, if the non‑citizen has a well‑founded fear that:
(a)a country will return the non‑citizen to another country; and
(b)the non‑citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion;
subsection (3) does not apply in relation to the first‑mentioned country.
Determining nationality
(6)For the purposes of subsection (3), 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.
(7)Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.
The applicant seeks to draw support from the observations of Kirby J in NAGV & NAGW of 2002 v Minister for Immigration [2005] HCA 6 at [91] and [93]. The Court found in that case that the Minister (and the Tribunal) were not relieved of the obligation of considering protection visa claims simply because the applicant may have a right of refuge in another country. However, the Court made clear at [54]-[60] that the Court was not dealing with the terms of s.36 which now apply. The Court was dealing with an earlier form of the legislation. At [58] the Court said:
It would have been open to the Parliament to deal with the question of "asylum shopping" by explicit provisions qualifying what otherwise was the operation for statutory purposes of the Convention definition in Art 1. As indicated earlier in these reasons, such a step may have been taken with the changes to s 36 made by the 1999 Act. The primary change is indicated by sub-s (3):
"Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national."
There are qualifications expressed in sub-ss (4) and (5). However, the changes made by the 1999 Act were not achieved years earlier by the quite differently expressed alterations made by the Reform Act.
There is no doubt that s.36(3) in its current form applies in this case. There is also no doubt that the Italian Vice Consul had informed the Tribunal that a person in the circumstances of the applicant would be entitled to Italian citizenship[6]. There is also no doubt that the applicant had not taken steps to avail herself of the rights of that Italian citizenship.
[6] CB 146
In my view, the reasoning of the Tribunal in this case in relation to the operation of s.36(3) was correct and unremarkable. No jurisdictional error is disclosed. Even if the Tribunal had fallen into jurisdictional error in relation to its application of s.36(3), the decision is wholly and independently supported by the Tribunal’s earlier findings on credibility and a lack of a Convention nexus.
I find that the decision of the Tribunal is free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I so order.
I will hear the parties as to costs.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 31 July 2007
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