VSAB v Minister for Immigration

[2004] FMCA 520

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VSAB & ANOR v MINISTER FOR IMMIGRATION [2004] FMCA 520

MIGRATION – Appeal from the Refugee Review Tribunal decision – threshold jurisdictional fact – country of reference – Macedonia.

Administrative Decisions (Judicial Review) Act 1977(Cth), s.5
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36, 65, 91R, 414, 474, 475A, 477, 478, 479

Applicants in V 722 of 2000 v Minister for Immigration & Multicultural Affairs [2002] FCA 1059
Craig v South Australia (1995) 184 CLR 163
Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Savic v Minister for Immigration & Multicultural Affairs [2001] FCA 1787
SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231

Applicant: VSAB & VSAC

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: MZ 1011 of 2003

Delivered on: 20 August 2004

Delivered at: Melbourne

Hearing date: 12 August 2004

Judgment of: Connolly FM

REPRESENTATION

Counsel for the Applicant: Mr J. Gibson

Solicitors for the Applicant: Erskine Rodan & Associates

Counsel for the Respondent: Mr Horan

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. THAT the appeal be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ1011 of 2003

VSAB & VSAC

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

1. This judgment arises from an application filed by the first applicant (the ‘applicant wife’) and the second applicant (the ‘applicant husband’) on 14 August 2003 seeking judicial review of the decisions of the Refugee Review Tribunal made on 24 May 2002 which affirmed the decisions of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to refuse to grant protection visas.

The applicants’ claims

1. The applicant wife is a citizen of the Former Yugoslav Republic of Macedonia (‘FYROM’), who arrived in Australia on 13 December 2000 accompanied by her two children.  She held a Macedonian passport with an Australian visitor’s visa.  The applicant husband arrived on 3 January 2001, and lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs (‘the Department’) on 25 January 2001.  The applicant wife and their two children were included on his application, which was refused by a delegate of the Department on 12 April 2001.  A valid application for review of that decision was received by the Refugee Review Tribunal on 17 May 2001. 

2. The applicant wife lodged a separate application for a protection visa on 31 May 2001, in which she was the principal applicant with the applicant husband and their two children included.  This application was refused by a delegate of the Department on 15 November 2001, and an application for review of that decision was lodged with the Refugee Review Tribunal on 3 December 2001.  Pursuant to the provisions for the issue of a protection visa in respects to applicants who are members of the same family unit, it is enough if one family member is a person to whom Australia has protection obligations. 

3. The applicant wife is an ethnic Macedonian of the Orthodox faith, and was born in FYROM.  The applicant husband is a Bosnian Serb, originally from Bosnia-Herzegovina where he still has family.  Before they came to Australia they lived with their children in Skopje, the capital city of FYROM.  Prior to that, they had lived for periods of time in Bosnia-Herzegovina. 

4. The applicant wife claimed that she feared persecution by reason of the following:

   a)that there was widespread ethnic violence in FYROM and a risk of an uprising by the minority Albanian population against ethnic Macedonians; and

   b)that she feared discrimination against her husband in FYROM as he is a Bosnian Serb, and discrimination against herself because of their mixed marriage.  Their mixed marriage exacerbated the risk of the rising ethnic tensions in FYROM.

5. The applicant husband claimed that he feared persecution if he returned to either Bosnia-Herzogovina or to FYROM.  In respect to Bosnia-Herzegovina, he feared he would be persecuted because of his opposition to Serbian nationalist policies and his avoidance of fighting for the Serbian cause.  His fears in respect to FYROM were that he faced discrimination as a Bosnian Serb and due to their mixed marriage, and that he feared an uprising by ethnic Albanians.  The applicant husband holds a Macedonian passport, but claimed this passport was obtained using bribery and that he is not a citizen of FYROM.

6. Both applicants claimed to fear for the safety of their children in the context of rising ethnic tension in FYROM.

7. Both applications for review by the Refugee Review Tribunal for the applicant wife and the applicant husband were decided on 24 May 2002 and handed down on 7 June 2002, and both Tribunal decisions affirmed the decisions of the delegate/s of the Department not to grant protection visas. Specially, the Tribunal held that the applicants were not persons to whom Australia had protection obligations under the Refugees Convention (as amended by the Refugees Protocol). Consequently, the applicants did not satisfy the criterion set out in section 36(2) of the Migration Act 1958 (Cth) (‘Migration Act’).

8. On 14 August 2003, the applicants lodged an application in the Federal Court of Australia, being V646/2003, pursuant to section 39B of the Judiciary Act 1903 (Cth) and section 5 of the Administrative Decisions (Judicial Review) Act 1977(Cth) (‘Administrative Decisions (Judicial Review) Act’) for review of the Tribunal’s decisions. The applicants claimed that the Tribunal’s decision was attended by jurisdictional error and as such does not constitute a privative clause decision as defined by section 474(2) of the Migration Act. Accordingly, the applicants claimed that the decision is not excluded under Schedule 1 of the Administrative Decisions (Judicial Review) Act, and that the decision was not a privative clause decision for the purposes of section 474 of the Migration Act.

9. On 8 September 2003, the respondents filed a Notice of Objection to Competency, objecting to the jurisdiction of the Federal Court of Australia trying the application on the grounds, summarily, that:

   a)the application was not filed within the time required by sub-section 477(1) of the Migration Act; and

   b)relief under the Administrative Decision (Judicial Review) Act was not available to the decisions under review.

10. The matter was transferred from the Federal Court of Australia to the Federal Magistrates Court of Australia, being ML1011/2003, pursuant to an order of Justice Kenny dated 11 September 2003.

11. On 25 November 2003, the applicants lodged an amended application in the Federal Magistrates Court of Australia pursuant to section 39B of the Judiciary Act and sections 475A, 477, 478 and 479 of the Migration Act for writs of prohibition and certiorari and for a declaration. In the applicants’ contentions of facts and law, which was filed on 25 November 2003, it is claimed, summarily, that:

    a)the Tribunal failed to properly consider a threshold jurisdictional fact of whether the applicant husband was a national of Bosnia-Herzegovina, and failed to assess his claims of feared persecution in relation to that country;

    b)the Tribunal made a jurisdictional error in finding that the applicant husband was a national of FYROM without considering foreign laws in this regard, and that the Tribunal “misunderstood” and did not provide sufficient legal basis for the finding of his nationality;

    c)the Tribunal erred in treating FYROM as the country of reference for both applicants.

12. The applicants’ arguments were rebutted in the first respondent’s contentions of fact and law, filed on 16 April 2004.  In summary, the respondent argued that:

    d)unless the applicants are able to establish jurisdictional error, their application for review should be dismissed on the basis that it was not filed within 28 days of notification of the Tribunal’s decisions;

    e)the issue of the applicant husband’s nationality was not a material issue in the Tribunal’s decision on the applicant wife’s application, and therefore there are no grounds to demonstrate jurisdictional error in relation to her application;

    f)the issue of the applicant husband’s nationality was a question of fact which was not governed by legal principles or “minimum evidentiary requirements”;

    g)the Tribunal’s finding that the applicant husband was a national of FYROM, meant that it was unnecessary to determine whether he had a well-founded fear of persecution in Bosnia-Herzegovina. 

The law

1. Section 36 of the Migration Act provides for the class of visas known as protection visas. The relevant protection obligation is defined in Article 33 of the Convention relating to the status of refugees which is required to be read in light of the definition of refugees in Article 1A. The Convention, which as amended, applies to a person who:

   Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

2. The term “well-founded fear of persecution” is affected by the provisions of section 91R of the Migration Act which provides as follows:

   (1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

   (a)  that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

   (b)  the persecution involves serious harm to the person; and

   (c)  the persecution involves systematic and discriminatory conduct.

   (2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)  a threat to the person's life or liberty;

   (b)  significant physical harassment of the person;

   (c)  significant physical ill-treatment of the person;

   (d)  significant economic hardship that threatens the person's capacity to subsist;

   (e)  denial of access to basic services, where the denial threatens the person's capacity to subsist;

   (f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.

3. Following the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 a Tribunal decision would be reviewable if it were to be established that the Tribunal had exceeded its jurisdiction or constructively failed to exercise its jurisdiction. Section 474 of the Migration Act does not exclude consideration by the Court of decisions which involve a failure to exercise jurisdiction or which involve an excessive jurisdiction as such decisions are not decisions made under the Act for the purposes of section 474. Section 474 does not apply to decisions which involve jurisdictional error whatever the scope or extent of the jurisdictional error; see for example Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323 (‘Yusef’) at 351.

4. An administrative Tribunal exceeds its power, and thus commits a jurisdictional error, if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material, or, in some circumstances, makes erroneous findings or makes a mistaken conclusion in a way that affects the exercise, or purported exercise, of the Tribunal’s power (Craig v South Australia (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179). This is not exhaustive. Those kinds of errors may well overlap (see Yusef).

Conclusions and findings

1. Ground one of the applicants’ claim contends that the Tribunal failed to determine whether the applicant husband was a national of Bosnia-Herzegovina as an essential precondition to, or an inviolable limitation or restraint for the existence of the satisfaction required by section 65 of the Migration Act to grant or refuse the application and its powers to conduct a review under section 414 of the Act.

2. There was no authority provided by Counsel to support the proposition that the issue of the applicant husband’s Bosnian nationality should be determined as some sort of threshold issue.  Indeed what the Tribunal did was (Court Book (‘CB’) 305) to find that the applicant husband was a national of FYROM and further that as a national of FYROM he did not have a well-founded fear of persecution in the event that he returned to FYROM.  In those circumstances, the Tribunal was not required to determine whether the applicant husband was a national Bosnia-Herzegovina nor whether he had a well-founded fear of persecution in Bosnia-Herzegovina.  To the extent that the applicants’ first ground disputes the finding that the applicant husband is a national of FYROM, it is canvassed in grounds 1(II) & (III) of the applicants’ claim. 

3. The question of whether the applicant was a national of FYROM is a question of fact which the Tribunal was required to determine on the evidence and the material available to it.  The Tribunal found as follows (CB 304-5):

   The applicant lived in a country that is now known as FYROM, from 1991 until he departed Australia, apart from periods spent in Bosnia, where he comes from and went to in order to check his property, and significant time spent on the road in Europe, pursuing his livelihood.  He travelled with a passport issued by FYROM authorities in 1998, a passport that replaced another than had been issued in 1995.  His new passport showed his usual family address in Skopje as his residential address.  He was equivocal about his nationality, stating that he paid bribes for the passport and had never attended a citizenship ceremony.  His wife stated that he had the right to enter FYROM with that passport.

   The applicant had been married to a citizen of FYROM since 1986 and has lived in that country for many years.  His children are Macedonian nationals, including one child who was born in Serbia and the applicant owned property and conducted his business from Skojpe without trouble.  He has been the recipient of two passports issued by FYROM authorities and has habitually developed and re-entered that country using his FYROM passport without hindrance.  The Australian Department of Foreign Affairs and Trade (DFAT) advised in 1994 that:

   “More stringent requirements for acquiring Macedonian citizenship were introduced and the fee was raised from 50 to 5000 US dollars with effect from 10 November.  In addition to 15 years’ residence or 3 years marriage, applicants must provide a medical certificate, a certificate of fluency in the Macedonian language, confirmation that they have no criminal record, and proof of residence” [cx2432: “FYR Macedonia, November – December 1993” Cable BG 61260, 14 January 1994].

   At that stage, the applicants had been married for seven years.  The applicant speaks Macedonian and his application form states he has no criminal record.  His spouse suggests he has the right to enter and reside in FYROM.

   Then having regard to all those circumstances the Tribunal indicated it was satisfied that he was a national of FYROM as evidenced by the issue of the passport to him, notwithstanding that he may have paid some bribes when it was issued.  The Tribunal then went on to say that it was plausible that he was also a national of Bosnia-Herzegovina.

4. The factual question as to the applicant husband’s nationality was not governed by legal principles that are distinct or different to those governing the determination of any other question of fact.  It was the applicants’ submission that because the Tribunal accepted that the applicant husband may have paid some bribes with respect to the issue and the renewal of his passport, the fact that he held a FYROM passport can not provide any evidentiary basis at all for the finding which the Tribunal made with respect to his nationality.  I do not accept that proposition.  The fact that he may have paid bribes is not necessarily inconsistent with the validity of the passport.  He may well have been entitled to the issue of the passport but ignorant of that fact.  Equally the bribes might merely have facilitated the acceleration of the issue and/or the renewal of the passport.

5. The applicants further submitted that the findings that were made relying on the secondary information from DFAT citing inter alia requirements that a person acquiring a Macedonian citizenship have either 15 years’ residence or 3 years marriage and satisfy other criteria (which on the evidence the second-named applicant could) were made without any reference to the terms of the relevant nationality law of that State and accordingly that was not a proper basis for a finding that as a matter of law he was a national of FYROM.  In support of that contention, the applicant referred to the decision of Mansfield J in Savic v Minister for Immigration & Multicultural Affairs [2001] FCA 1787 at [14]:

   the content of foreign law is a question of fact about which evidence is receivable. 

6. The applicants’ Counsel also relied on the decision of Applicants in V 722 of 2000 v Minister for Immigration & Multicultural Affairs [2002] FCA 1059 (‘Applicants in V 722/2000’) where Ryan J said as to the question of proof of foreign law, at [32]:

   It is a trite proposition that the state and effect of the law of a foreign country are questions of fact; see eg. Phipson on Evidence, 15th edn p 974.  As such, they are susceptible of proof by expert evidence from a witness suitably qualified to express an opinion about the laws of the relevant foreign State: see eg. Re Duke of Wellington [1947] Ch 506 at 514.

   And at [33]:

   However, it is not necessary for a court or tribunal to resort to expert evidence of that kind in order to make a finding as to the effect of a relevant law of a foreign country.  If, for example, the text of a presumably relevant statute of that country or an authoritative statement in a legal text book or other authority appears to suggest with sufficient precision the effect of the law in question, the court or tribunal is entitled, in the absence of contradictory expert evidence, to make a finding accordingly (Evidence Act (Cth) 1995, s. 174(1)).

7. In any event the Tribunal’s finding was not based solely on the possession and use of a FYROM passport but also on the applicant husband’s background and connections to Macedonia and upon country information concerning the requirements for acquiring Macedonian citizenship (CB 304-5). 

8. Further, as the respondent Counsel submitted, the judgment of Ryan J in Applicants in V 722/2000 does not establish that questions of foreign law can only be established by expert evidence, by the text of the relevant statute, or by an authoritative statement in a legal textbook or other authority.  This is made clear by the following paragraph of Ryan J’s reasons for judgment:

   In the present case, the Tribunal identified Article 4 of Law No 40 of 6 March 1998 as the source of the applicants’ entitlement under Italian law to remain in, or re-enter, Italy.  It was not required to go that far because the fact that the first applicant had resided and worked in Italy since 1986 and had been joined there by the second applicant in 1993 raises a presumption that the Italian authorities would not peremptorily preclude them from returning to Italy after travelling to this country on valid Italian passports endorsed with Australian visitors’ visas.  That presumption is strengthened, if anything, by the fact that the applicants had unexpired Italian temporary residence permits and had pending applications for permanent residence permits. No attempt was made on behalf of the applicants to rebut that presumption…

1. In any event the country information contained in the DFAT document was relevantly an authoritative statement in a legal textbook or other authority.  This evidence was not contradicted by any other material available to the Tribunal.  There was therefore clearly some evidence upon which the Tribunal could make a finding that the applicant husband was a national of FYROM.  Indeed apart from the applicant husband’s assertions that he was not a citizen of FYROM and had no right of residence in FYROM, there was no evidence to the contrary. 

2. Accordingly I am satisfied that it cannot be said the Tribunal’s finding was ‘Wednesbury’ unreasonable, nor that the material on which it relied was so inadequate that the only inference was that the Tribunal applied the wrong test.  As the Full Court went on to emphasise in SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 at [20]:

   On the other hand, if there is sufficient evidence or other information before the Tribunal on which it could reach the conclusion it did then it is for the Tribunal to determine what weight is given to that evidence.  Indeed, unless the relevant fact can be identified as a ‘jurisdictional fact’, there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36. It is for the Tribunal to determine the merit of the claim. The line between merit review and jurisdictional error may not be a ‘bright line’, but it is nevertheless an essential one: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

3. Indeed there are strict limits on the Court’s role on judicial review particularly in relation to findings of fact.  Insufficiency of evidence does not of itself constitute jurisdictional error, and does not provide a foundation for a ground of review.  In all the circumstances of this case I am satisfied that there has been no jurisdictional error made out.  Accordingly the appeal should be dismissed and I propose to order that the applicants pay the respondent’s costs.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Connolly FM

Associate:  J. O’Brien

Date:  20 August 2004