SZMKF v Minister for Immigration and Citizenship

[2009] FCA 173

FEDERAL COURT OF AUSTRALIA

SZMKF v Minister for Immigration and Citizenship [2009] FCA 173

SZMKF v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1870 of 2008

SIOPIS J
3 MARCH 2009
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1870 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMKF
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	3 MARCH 2009
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The appeal is dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1870 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMKF
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE:	3 MARCH 2009
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The appellant is a citizen of Latvia who arrived in Australia on 28 March 2007.  On 11 December 2007, the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship.  A delegate of the first respondent refused the application for a protection visa on 18 February 2008.  On 12 March 2008, the appellant applied to the Refugee Review Tribunal for a review of that decision.

   THE TRIBUNAL DECISION

2. The appellant claimed to fear persecution in Latvia arising from his son having applied for, and being granted, a protection visa by Australia.  The appellant claimed that after his son obtained a protection visa in 2006, the appellant was subjected to a pattern of threatening conduct including telephone calls and arson and was detained by persons purporting to be police officers.  He claimed that he was told that he and his family were “humiliating” Latvia and should be eliminated.  According to the appellant, the local police were unable to act after he complained due to a lack of evidence of his alleged detention.

3. The Tribunal accepted the appellant’s claims regarding the incidents of harassment and the inability of the local authorities to assist him.  However, it found that the appellant had provided “very limited information” regarding the people who had harassed him, and that this was the probable cause of the failure of police to effectively react to his complaints.  It was not satisfied that he was denied protection by the police in Latvia.  The Tribunal stated at [44] of its reasons as follows:

   The Tribunal is satisfied, after considering information from external sources, in the US Department of State, Country Reports on Human Rights Practices ‑ 2007, released 11 March 2008, that the citizens of Latvia have access to a reasonable level of protection by the state.  The Tribunal is satisfied that the [appellant] will have access to a reasonable level of state protection if he returns to Latvia.  Accordingly, the Tribunal finds that the [appellant] does not have a well‑founded fear of persecution in Latvia for a Convention reason.

4. The Tribunal then went on to find that because the appellant was a citizen of Latvia, the appellant had “a legally enforceable right to enter and reside” in any of the European Union (EU) countries.  However, the Tribunal said that the appellant had not taken all possible steps to avail himself of that right.  The Tribunal also observed that countries of the EU provide high quality state protection to all citizens living in the EU.

5. The Tribunal affirmed the decision of the delegate of the first respondent to refuse the appellant a protection visa.

   THE FEDERAL MAGISTRATES COURT

6. On 16 June 2008, the appellant sought judicial review in the Federal Magistrates Court.  The grounds of the application covered 16 paragraphs and were summarised by the Federal Magistrate as claiming that the Tribunal was wrong in coming to the conclusion that the appellant had the right to enter and reside in other countries of the EU.

7. The Federal Magistrate said that the Tribunal had dismissed the appellant’s application on the ground that the appellant would receive a reasonable level of state protection from harassment of the kind complained of in Latvia.  The Federal Magistrate observed that this was an entirely separate ground to the appellant’s complaint that the Tribunal erred as to the extent of the entry and residency rights in EU countries enjoyed by citizens of Latvia.  The Federal Magistrate found that this was a sufficient basis for the Tribunal to have dismissed the appellant’s claim.

8. However, the Federal Magistrate went on to consider the appellant’s contention as to the Tribunal’s error in relation to the appellant’s right to enter and reside in EU countries.  The Federal Magistrate found even if the Tribunal was mistaken as to the substance of the entry laws of particular EU countries as they applied to the appellant, such a mistake would have been an error of fact and would not amount to a jurisdictional error.

9. As regards the Tribunal’s finding in relation to s 36(3) of the Migration Act 1958 (Cth) (the Act) ‑ namely, that the appellant had not taken all possible steps to avail himself of the right to enter and reside in another EU country, the Federal Magistrate approved the observations of Graham J in SZLAN v Minister for Immigration and Citizenship (2008) 171 FCR 145 at [158], at [53] (SZLAN) to the following effect:

   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.

10. The Federal Magistrate found that the Tribunal had not erred in applying that section of the Act to the appellant’s circumstances.

    THE APPEAL

11. On 3 December 2008, the appellant filed a notice of appeal in which he claimed that the Federal Magistrate should have concluded that the Tribunal was in error in stating that citizens of Latvia could freely enter and reside in any of the other EU countries, because there is different legislation in place for citizens of new member states.

12. The appellant contended that the Tribunal ignored the fact that there were limitations upon the right to reside and work in other EU countries on citizens of Latvia.  This was because there were transitional rules in operation in respect of citizens of the new EU countries.  Thus, for example, said the appellant, some EU countries had imposed restrictions on the period of time that a citizen of Latvia could reside in that country, before having to obtain a residency permit.  Also, other EU countries had imposed restrictions on access to employment on citizens of Latvia and other new EU countries.  These restrictions, said the appellant, imposed a substantial practical impediment upon him being able to enter and reside in another EU country because of his advanced age and ill health.

13. The appellant contended that the error which the Tribunal had made in failing to take into account these limitations in respect of its finding that the appellant had a “legally enforceable” right to reside in other EU countries, was a legal error going to jurisdiction, and not an error of fact made within jurisdiction ‑ as the Federal Magistrate had found.

14. The appellant contended that given the fact that as a citizen of Latvia there were restrictions on his right to enter and reside in other EU countries, the Federal Magistrate should have concluded that s 36(3) of the Act had no application to the appellant’s case.

15. In my view, the appellant’s appeal should be dismissed for the following reasons.

16. First, the decision of the Tribunal can be supported on a ground entirely independent of the matters raised by the appellant.

17. The question raised by the appellant related to the Tribunal’s appreciation of the quality and extent of his entitlement to reside in another EU country.  However, prior to embarking upon a consideration of the appellant’s entitlement to reside in other EU countries, the Tribunal had already concluded that the appellant had access to a reasonable level of protection from the state authorities in Latvia, and had rejected his claim for a protection visa, on that ground alone.

18. It was strictly unnecessary, therefore, for the Tribunal to have considered the question of the appellant’s right to enter and reside in any country of the EU, other than Latvia.  There was no error in the Federal Magistrate’s approach in this respect.

19. Secondly, even if the Tribunal had erred in its appreciation of the restrictions imposed on the right of citizens of Latvia to reside in other EU countries, that error would be an error of fact within jurisdiction and, therefore, not a jurisdictional error in respect of which a judicial review remedy was available before the Federal Magistrate.  In my view, the Federal Magistrate did not err in characterising any such error as an error of fact within jurisdiction (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]‑[13]).

20. Thirdly, applying the observations of Graham J in SZLAN, the Federal Magistrate held that s 36(3) of the Act directs attention to the existence of the right to enter and reside in another country, and whether the visa applicant has taken “all possible steps” to avail himself or herself of those rights. The Federal Magistrate did not err in so holding. Section 36(3) is not concerned with the extent of the right to enter and reside. It is apparent that the section will apply even where the visa applicant has a right to enter and reside in another country temporarily. The consequence is that there will be no protection obligation on Australia in respect of that visa applicant, if the visa applicant has not taken “all possible steps” to avail himself or herself of even that limited right to enter and reside temporarily. In this case, the appellant had taken no steps to avail himself of the right to enter and reside in any other country in the EU.

21. The appeal is dismissed.

I certify that the preceding twenty‑one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated:        3 March 2009

Counsel for the Appellant:	The Appellant appeared in person.
Counsel for the First Respondent:	Mr Y Shariff
Solicitor for the First Respondent:	DLA Phillips Fox

Date of Hearing:	17 February 2009
Date of Judgment:	3 March 2009