SZMKF v Minister for Immigration

[2008] FMCA 1588

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMKF v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1588

MIGRATION – Review of decision of RRT – where applicant is found not to have availed himself of rights to enter another country – whether Tribunal made errors in its understanding of the legislation – nature of such mistake – where independent ground for decision.

Migration Act 1958, s.36(3)

MIMA v Respondents S152/2003 (2004) 222 CLR 1
SZBYR v Minister for Immigration 235 ALR 609
Abebe v The Commonwealthof Australia (1999) 197 CLR 510
Applicant S214/2003 v The Refugee Review Tribunal [2006] FCAFC 166
VHAJ v Minister for Immigration [2002] 131 FCR 80
Applicants in V 722 of 2000 v Minister for Immigration [2002] FCA 1059
SZLAN & SZLAO v Minister  for Immigration [2008] FCA 904

Applicant: SZMKF

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1529 of 2008

Judgment of: Raphael FM

Hearing date: 14 November 2008

Date of Last Submission: 14 November 2008

Delivered at: Sydney

Delivered on: 14 November 2008

REPRESENTATION

For the Applicant: In person

Counsel for the Respondents: Mr Y Shariff

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondents costs assessed in the sum of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1529 of 2008

SZMKF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Latvia who arrived in Australia on 28 March 2007.  He applied for a protection (Class XA) visa on 11 December 2007.  On 18 February 2008 a delegate of the Minister refused to grant a protection visa and on 12 March 2008 the applicant applied for a review of that decision by the Refugee Review Tribunal.  The applicant attended a hearing before the Tribunal which, on 2 May 2008, determined to affirm the decision under review and handed that decision down on 22 May. 

2. The applicant claimed that he was a person to whom Australia owed protection obligations because he had been persecuted in Latvia on the grounds that he had been party to the humiliation of the prestige of independent Latvia because his son had successfully applied for a protection visa in Australia.  The applicant claimed that he was detained by the police at his home on 22 February 2007 and then taken to an office for investigation.  A man in civilian clothes told him that people like him and his son were humiliating the Republic of Latvia and should be eliminated.  A few days later someone set his apartment door on fire.  He said that he reported these matters to the police on 27 February 2007 but his complaint was not accepted.  On 2 March 2007 he received a threatening telephone call and then suffered a heart attack.  He did not think that anyone in Latvia would help him so he came to Australia and applied for protection. 

3. In its findings and reasons at [CB 99] the Tribunal says:

   “The Tribunal accepts that the applicant is a citizen of Latvia.  It accepts his claim that he was threatened and harassed by persons who objected to his views.  The Tribunal accepts that on one occasion he was unlawfully detained, by unknown persons, who threatened to kill him if he persisted in expressing his views.  The Tribunal accepts the applicant's claim that the police were unable to assist him. 

   However, the Tribunal has formed the view that the applicant has very limited information regarding the persons who harassed him in Latvia.  The Tribunal is not satisfied by the applicant's evidence that he was denied protection by the police.  The Tribunal has formed the view that the applicant had such limited information regarding the persons who harassed him that he could not provide to the police any useful information on which they could act.  The Tribunal is not satisfied that the applicant was denied protection by the police in Latvia.

   The Tribunal further finds that it is mere speculation on the applicant's part that the police or the authorities in Latvia were implicated in the harassment he suffered.  The Tribunal has formed the view that the applicant does not have enough information on which he can logically reach a conclusion that State agents or the police were involved in the harassment.  The Tribunal is not satisfied that the applicant was targeted by the state in Latvia or that the persons who harassed him were state agents.  The Tribunal finds that the applicant was targeted by non‑state agents for reasons of real and imputed political opinion.”

4. The Tribunal then went on to find, with the aid of independent country information, referred to at [CB 100], that citizens of Latvia had access to reasonable levels of protection by the state.  And so, consistent with the views expressed by the High Court in MIMA v Respondents S152/2003 (2004) 222 CLR 1 a reasonable standard of protection was provided in Latvia so that the applicant was not a person to whom Australia owed protection obligations.

5. It was open to the Tribunal, having come to this conclusion, to cease its deliberations at that point. It did not do so. It decided that it should investigate with the applicant and opine upon the applicant's rights to enter and reside in, whether temporarily or permanently and however that right arose or is expressed in any country apart from Australia. These words are taken from s.36(3) of the Migration Act 1958 (the “Act”). The Tribunal concluded from its investigation of independent country information, in this case the information referred to at paragraph 39 of [CB 99], "Living in Europe:  Right of Permanent Residence and Entry Procedures in Another EU Country", that as a citizen of an EU country, Latvia, the applicant had rights to enter and reside in other EU countries. The applicant had not established that he had taken any steps to avail himself of those rights and therefore he had not satisfied the Tribunal that the provisions of s.36(3) of the Act did not apply. In the course of the Tribunal hearing reference was made to the applicant's right to enter and reside in the United Kingdom as an example of the existence of such rights within the EU generally.

6. On 16 June 2008 the applicant filed an application with this court seeking judicial review of the Tribunal's decision. The grounds of the application cover three pages and 16 paragraphs. It is fair to say that in none of those paragraphs does the applicant cavil with the finding by the Tribunal that state protection was available in Latvia. The gravamen of all 16 of the points is that the Tribunal was wrong in coming to a conclusion that the applicant had the rights ascribed to him to enter and reside into other countries of the EU.

7. In these circumstances it is probably not necessary to discuss at any length the grounds put forward by the applicant. That is because even if the Tribunal had made a jurisdictional error in the way in which it considered s.36(3), it had made an entirely independent decision concerning the applicant's claims for protection which were that the applicant did not fall within the definition of a refugee as that definition has been interpreted by the Act and the courts of Australia: SZBYR v Minister for Immigration 235 ALR 609. He was not the subject of state persecution and the persecution which he did suffer was capable of being alleviated by state authorities.

8. It must be arguable that it is not necessary to invoke s.36(3) of the Act unless a Tribunal comes to the conclusion that apart from the existence of that subsection, an applicant would have a right to protection in Australia, but I shall assume for the purposes of these reasons that this is not a condition precedent to the consideration of the sub-section.

9. When considering the sub-section the Tribunal's responsibility is to decide firstly whether the right to enter and reside in another country exists. If it comes to the conclusion that such a right exists it is obliged to consider whether or not an applicant has availed himself of that right. It is a two step process. It seems to me that the overall requirement set out in s.65 for the Tribunal to be satisfied that the other criteria prescribed in the Act or Regulations have been satisfied includes a requirement to be satisfied that s.36(3) does not apply. Whilst it has frequently been said that there is no "onus" upon an applicant, it is equally as frequently said that an applicant must advance his own case. In Abebe v The Commonwealthof Australia (1999) 197 CLR 510 at [187] Gummow and Hayne JJ said:

   “The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of contradictor.  It is for the applicant to advance whatever evidence or argument he wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason.  The Tribunal must then decide whether that claim is made out.”

10. In ApplicantS214/2003 v The Refugee Review Tribunal [2006] FCAFC 166 Allsop, Jacobson and Graham JJ said at [26]:

    “Proceedings before the Tribunal are inquisitorial rather than adversarial. A Tribunal member conducting an enquiry is obliged to be fair, however, the Tribunal is not in the position of a contradictor of a case being advanced by an applicant. In a case such as that brought by the appellant under his application for review to the Tribunal, it was for him to advance whatever evidence or argument he wished to advance and for the Tribunal to decide whether his claim that he was a refugee, within the meaning of the Convention … had been made out.”

11. The applicant in this case, being aware from the decision of the delegate that the question of his rights to enter and reside in EU countries was an issue, was obliged to satisfy the Tribunal that s.36(3) did not apply to him. The applicant raises arguments against the findings by the Tribunal concerning his rights to enter and reside in EU countries. But he did not do this with the same degree of thoroughness before the Tribunal. Given that the applicant is a man of 70 years of age it may well be that his rights to enter and reside are more limited than those that the Tribunal considered. But if the Tribunal was in error in its views, it was an error of fact, being an error concerning the law of a foreign state, VHAJ v Minister for Immigration [2002] 131 FCR 80 per Moore J at [11]; Applicants in V 722 of 2000 v Minister for Immigration [2002] FCA 1059 per Ryan J at [32-33]. A mistake of fact is a mistake within jurisdiction.

12. For the sake of completeness I would also indicate that I fully accept the views expressed by Graham J in SZLAN & SZLAO v Minister  for Immigration [2008] FCA 904 at [53] where his Honour says:

    “Section 36(3) of the Act directs attention to taking steps to avail oneself of a right to enter and reside in a country. It is not directed to the consequences of entering and residing in a country. The relevant right in respect of which a non-citizen must take all possible steps to avail himself is the bare right, if it exists, to enter and reside in a country, not a right to enter and reside comfortably in a country.”

13. It follows from what I have said above that I am of the view that the Tribunal did not fall into jurisdictional error in the manner in which it reached this particular decision.  In those circumstances the application must fail.  I dismiss the application.  I order that the Applicant pay the First Respondent’s costs which I assess in the sum of $4,000.00.

14. Finally, I note that the applicant tells me that he is the only surviving relative of his son in Latvia and that he receives a pension which may result in him being considered to be a person of indigence and thus may be a person to whom provisions of the Act could possibly apply for the grant of another type of visa albeit one which can only be obtained from outside Australia.

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

Associate: 

Date: