VWAD v Minister for Immigration
[2006] FMCA 25
•24 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VWAD v MINISTER FOR IMMIGRATION | [2006] FMCA 25 |
| MIGRATION − Refugee visa claim − whether Tribunal considered claim of fear of persecution on grounds of ethnicity − whether Tribunal considered claim of fear of persecution by non state agents − whether Tribunal rejected claim supported by evidence without having contrary evidence − whether order dismissing for non appearance should be set aside. |
| Migration Act 1958 (Cth) |
| WAIJ vMinister for Immigration & Multicultural Affairs [2004] FCAFC 74 |
| Applicant: | VWAD |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG314 of 2004 |
| Judgment of: | Phipps FM |
| Hearing date: | 5 August 2005 |
| Last Submission: | 5 August 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 24 January 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Condliffe |
| Solicitors for the Applicant: | Ryan Carlisle Thomas |
| Counsel for the Respondent: | Ms MacDonell |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant pay the respondent’s costs fixed at $7,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG314 of 2004
| VWAD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicants are husband and wife, and their daughter and son. They are citizens of Moldova. They applied for protection visas on the basis that they feared persecution in Moldova by state and non state agents because of their Russian ethnicity and language. The applications were rejected and the rejection confirmed by the Refugee Review Tribunal. They applied to the Federal Magistrates Court for review of the Tribunal decision. On the original hearing date, the application was dismissed for non-appearance. They have applied for reinstatement of the application.
By agreement, the hearing before me was conducted on the basis that full argument was heard on the question of jurisdictional error, so that if the application was reinstated, the substantive issue would be dealt with in the same judgment.
Chronology
The applicants’ arrived in Australia on 28 March 2001. They applied for refugee visas on 23 April 2001. A delegate of the Minister refused to grant the visas on 17 July 2001. They applied for review to the Tribunal. By decision dated 2 September 2003, the Tribunal affirmed the decision not to grant protection visas. The application for review of that decision was filed in the Federal Magistrates Court on
19 November 2003. The dismissal for non-appearance was ordered on 3 May 2005. The application for reinstatement was filed on 8 June 2005.
The applicant's arguments
The husband and daughter submitted their own claims to be refugees. The wife and son relied on membership of the husband's family unit. The daughter is also a member of the husband's family unit.
They claim that they were discriminated against in Moldova because of their Russian language and ethnicity, and that discrimination will continue if they return.
The husband is an ethnic Russian. He moved to Moldova in 1994 and lived there until he left in 2001. He travelled to Australia as a tourist between 14 January and 1 March 1999. He spent about two months in the Ukraine, between June and August 2000 on business, and travelled to Romania on three occasions in 1999 and 2000.
The husband claimed he was the director and owner of a company between February 1994 and April 1999. He worked in a cardboard box production company from April 1999 until he left Moldova.
He claimed that he left Moldova because of discrimination against him for reasons of his Russian ethnicity. He had to forfeit his rights as owner and director of his company because he could not pass a Moldovan language test. He claimed his office was robbed. He received threatening telephone calls and letters. He was told he should return to Russia. He was assaulted on a few occasions; once he was beaten by a crowd so that he required medical attention. He claimed he received constant threats and abuse.
The daughter’s claim was completed by the wife. The daughter's claim is that she was discriminated against, at school and elsewhere, because of her Russian ethnicity. She was assaulted in the street because she was overheard speaking Russian. Her parents claimed she was ill treated in hospital because she was Russian.
The Tribunal’s findings
The Tribunal found that the husband was not a credible witness. The Tribunal said his evidence was inconsistent with independent information in relation to the treatment of ethnic Russians and Russian language speakers in Moldova. The Tribunal said that the husband's evidence was inconsistent, rehearsed and evasive in significant respects. The Tribunal found that the wife was not a credible witness. Her evidence at the hearing had been rehearsed and was inherently unconvincing.
The independent information the Tribunal referred to was United States Department of Human Rights reports on human rights practices in Moldova, in particular, the 2001 report. That report said that Russian speakers in Moldova are not discriminated against in practice.
The applicants’ arguments and discussion
The applicants argued jurisdictional error on two grounds.
The first concerns the use by the Tribunal of independent information, namely the United States State Department reports. The Tribunal used the information in the reports as part of its reasons for rejecting the husband and the wife as credible witnesses.
The applicants claimed they were persecuted because of their Russian ethnicity, their Russian language and they also claimed that they were persecuted by non state agents. Their argument is that the State Department reports refer to non discrimination against Russian speakers. The argument is that the reports say nothing about discrimination on the grounds of Russian ethnicity and do not deal with persecution by non state agents.
In relation to the first claim of ethnicity, the Tribunal (CB 288) says that it accepts as authoritative the 2001 US State Department report, and accepts its observations to the effect that ethnic Russians and Russian speakers do not face discrimination in Moldova. The applicants’ argue that the report refers only to Russian speakers and not ethnic Russians, and therefore the Tribunal has not addressed the question of ethnicity.
The argument fails because the Tribunal was entitled to interpret the report in the way it did. A particular extract that the Tribunal relied on is taken from a section headed, "Discrimination Based on Race, Sex, Religion, Disability, Language, or Social Status”. The paragraph which says that Russian speakers are not discriminated against in practice, commences with the words "Minority rights and the language question are related closely, particularly in the perceptions of the Russian speaking minority and the Moldovan/Romanian speaking majority”.
A reasonable interpretation of the extract from the report as a whole is that it deals with both discrimination on the grounds of language and discrimination on the grounds of ethnicity. Even if this is only a possible interpretation, it was the Tribunal's task to decide what use it would make of the report in its fact finding exercise. The Tribunal has expressly addressed the question of discrimination on the basis of Russian ethnicity. It has interpreted the report as referring to discrimination on the basis of both ethnicity and language, and it was entitled to make that interpretation.
The second criticism of the use of the report is that the Tribunal used the fact that there was no evidence in the US State Department reports, that non-government parties have discriminated against ethnic Russians or Russian speakers as a basis for rejecting evidence or giving little weight to evidence. The argument is that this was a jurisdictional error because what the tribunal had was evidence put forward by the applicants, and it could not use the absence of evidence from a particular source as a basis for rejecting the evidence.
The argument misinterprets the use that the Tribunal made of the reports. A fair reading of the Tribunal's reasons is that the Tribunal considered the absence of evidence in the reports of discrimination by non-government parties as positive evidence that it did not occur. This is a reasonable interpretation, and one the Tribunal was entitled to make. The reports deal with discrimination generally, not government discrimination only. Therefore, the absence of evidence of a particular form of discrimination can be taken as positive evidence that that form of discrimination does not exist, or does not exist to a significant degree.
The second ground of jurisdictional error argued is that the Tribunal did not consider relevant evidence. The applicants submitted that the Tribunal did not, in effect, consider evidence contained in a witness statement which referred to discrimination on the basis of language and persecution within Moldova, and a statement from the husband's lawyer about matters on which the husband had consulted him, and descriptions of discrimination on the grounds of language and ethnicity and a newspaper report that the Moldovan government has discriminated against Russian children.
The Tribunal referred to these documents and the evidence in its reasons. It said it gave little weight to them because of the evidence contained in the US State Department reports. It describes the evidence in the two written statements as vague and unsubstantiated. It said it gave little weight to the newspaper report.
The applicants’ argument referred to WAIJ vMinister for Immigration & Multicultural Affairs [2004] FCAFC 74. In that case, the majority judgment of the Full Court of the Federal Court said that there had been jurisdictional error because the Tribunal did not consider information contained in two documents. The documents tended to corroborate the appellants account. The majority judgment considered that the Tribunal appeared to have considered it could disregard documents, that it was otherwise bound to consider, if it surmised that it was possible that the documents could have been fabricated.
The present case is not one where the Tribunal has not considered the documents. It has. It gave the evidence contained in the documents little weight and it gave its reasons for doing so. One of the reasons, possibly the most significant, is that they were inconsistent with the information contained in the US State Department reports.
The applicants’ arguments depend, to a large extent, on interpreting the reports as dealing with discrimination on the basis of Russian language only, and in particular, not dealing with discrimination on the basis of Russian ethnicity and discrimination by non state agents. The Tribunal did not interpret the reports in that way and was entitled to do so.
This case is not the same as WAIJ. The Tribunal has not rejected the evidence contained in the two statements and the newspaper report without any reason, and in particular without contrary evidence. The Tribunal considered that the US State Department reports are evidence, that in Moldova, there was not discrimination on the grounds of Russian ethnicity, and there was not discrimination against Russians by non state agents. The two statements and the newspaper report contained contrary evidence. The Tribunal was therefore in a position of having conflicting evidence. It was not in a position of having evidence only one way.
Given conflicting evidence, the Tribunal as part of its fact finding exercise was required to decide which evidence it accepted. The position is therefore different to WAIJ. There is no jurisdictional error.
There remains the question of whether the judgment for non-appearance should be set aside. I consider that a satisfactory explanation for non-appearance has been given. The circumstances are unusual. The applicants’ solicitor appeared before me on 3 May 2005 and sought leave to withdraw as solicitors for the applicant for the reason that they had been unable to contact the client. I gave leave for them to withdraw, although that may not have been necessary. That means that the application was dealt with on the basis of non-appearance.
The husband has filed an affidavit in which he says that he had changed address and failed to notify his solicitors. He had also discontinued his mobile phone.
The second matter which has to be considered in an application to reinstate, is whether there are arguable grounds. I have decided that there are no jurisdictional errors, and so, no grounds for setting aside the Tribunal's decision. This has required consideration of the arguments. There was sufficient in the arguments to say that the applicant was entitled to a hearing on the merits.
I will set aside the order of 3 May 2005 dismissing the application for non-appearance including the costs order. The application filed on
19 November 2003 is dismissed. I will deal with the question of costs of 3 May 2005 when dealing with the costs of the application as a whole.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Phipps FM
Associate: Sherryn Kwong
Date: 24 January 2006
0
0
1