VWOV v Minister for Immigration
[2005] FMCA 751
•13 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VWOV & ANOR v MINISTER FOR IMMIGRATION | [2005] FMCA 751 |
| MIGRATION – Dual nationality – effective and formal nationality – effective protection – obligation of Tribunal to enquire re: effective nationality. |
| Migration Act 1958, ss.36 & 474 |
| Koe v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 508 Minister for Immigration and Multicultural Affairs v Applicant C [2001] FCA 1332 Applicants in V722 of 2000 v Minister for Immigration and Multicultural Affairs [2002] FCA 1059 Abebe v The Commonwealth (1999) 197 CLR 510 |
| Applicants: | VWOV & VWOX |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 1188 of 2004 |
| Judgment of: | O’Dwyer FM |
| Hearing date: | 19 May 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 13 October 2005 |
REPRESENTATION
| Counsel for the Applicants: | Mr. Gibson |
| Solicitors for the Applicants: | Phillip Zalman Shulman |
| Counsel for the Respondent: | Ms. Macdonnell |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application for Review filed on 21 July 2004, and amended in the Amended Application filed on 12 April 2005, is dismissed.
The Applicant pay the Respondent’s costs fixed in the sum of $6,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1188 of 2004
| VWOV & VWOX |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
From the applicants’ perspective, central to this application to review are the issues of dual nationality and the distinction to be drawn between effective and formal nationality. An ancillary issue is whether the Refugee Review Tribunal (the Tribunal), once alerted to the issue of effective and formal nationality, is obligated to make its own enquires to ensure it takes into consideration relevant information in order to properly determine whether applicants for a protection visa can avail themselves of protection in the other country of nationality.
The applicants contend that the Tribunal failed, in light of the factual matters put to it, and matters which it should have taken into account which were readily available to it, to consider and determine whether there was effective nationality of the other country which would ensure the applicants protection from persecution. As a consequence of that failure, the applicants contend, the Tribunal failed to exercise jurisdiction and its decision is thereby infected by jurisdictional error. In developing their contention, the applicants relied on the Full Court’s decision in Koe v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 508.
From the Respondent’s perspective, s.36(3) of the Migration Act 1958 (the Act), which was added to the Act after the decision in Koe’s case, in the context of the Tribunal’s findings, is a complete answer to the application for review.
Background
The applicants are nationals of, and were residents in, Moldova. In the applicants’ own material filed in support of their protection visas, and in evidence before the Tribunal, the applicants claimed nationality of both Moldova and Romania. Evidence before the Tribunal also indicated that they had travelled to, and stayed in Romania for short times (variously said to be between 7 to 11, for periods of 2 days up to a month, in 2000), without any impediments as to border crossing and accommodation. Both applicants had, or held, Romanian passports.
The applicants arrived in Australia on 29 September 2000 on visitor visas as official Moldovan representatives to the Olympic Games.
In February 2001 an application was lodged for protection visas claiming they suffered persecution of a Convention nature, the details of which are set out in the Tribunal’s decision.
The Tribunal found that the applicants had dual citizenship of Moldova and Romania, and that they were afforded effective protection in Romania. It then found that the applicants did not have a well–founded fear of Convention based persecution in Romania and that, pursuant to ss.36(3) and 36(4) of the Act, Australia is taken not to have protection obligations to them because they had not taken all possible steps to avail themselves of a right to enter and reside in Romania.
Court’s decision and reasons
Section 36 has always contained s.36(2), which provides the criteria for a protection visa if the applicant for the visa is a non‑citizen of Australia to whom the Minister is satisfied Australia has protection obligations under the Article 1A(2) of the Refugee Convention, as amended by the Refugee Protocol. Subsections 36(3) to (7) were not in the Act at the time of Koe's case. Section 36(3) is the critical provision in this proceeding. It states:
“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.”
From that it is immediately apparent that the applicants in this proceeding did not even need to be nationals of Romania, provided that they had not taken all possible steps to avail themselves of any right to enter and reside there, whether temporarily or permanently, and however the right arose or is expressed. That was the proper question posited by the legislation to the Tribunal which it had to ask itself.
It did not have to ask itself what is their effective nationality. What it had to ask itself was, in my view, had the applicants taken all possible steps to avail themselves of a right to enter and reside in Romania, whether temporarily or permanently. In my view, the Tribunal clearly addressed this question.
The only thing that could displace the operation of s.36(3) is s.36(4) and that would be if the non‑citizen had 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, then s.36(3) does not apply in relation to that country. Only if the applicants had a well–founded fear of being persecuted for a convention reason in Romania would s.36(3) not apply. The clear finding of the Tribunal was that on the evidence presented, including country information and information submitted by the applicants, there was no basis for the applicants to fear persecution in Romania.
The Full Court in Minister for Immigration and Multicultural Affairs v Applicant C [2001] FCA 1332 at [65] dealt with s.36, after s.36(3) had been inserted, and it also dealt with the doctrine of effective protection which had been developed by the courts in relation to the correct interpretation of Article 1A. The Full Court concluded that:
“The combination of the amendments to s36 and the doctrine of effective protection leads to this position. Australia does not owe protection obligations under the Convention to:
(a) a person who can, as a practical matter, obtain effective protection in a third country; or
(b) to a person who has not taken all possible steps to avail himself or herself of a legally enforceable right to enter and reside in a third country.”
It is sufficient, in my view, to remove, or to prevent, Australia owing protection obligations even if that right is only to reside temporarily in the third country (see Applicants in V722 of 2000 v Minister for Immigration and Multicultural Affairs [2002] FCA 1059).
There can be no doubt, in my view, that the Tribunal’s finding that the applicants had dual citizenship was open to it. The evidence was, which the Tribunal was entitled to accept, that the primary applicant holds both Moldovan and Romanian citizenship and that the other applicant is currently a Romanian citizen.
It was implicit, if not explicit, in the applicants’ position before me that the Tribunal had erred in accepting the citizenship of Romania without also enquiring as to whether it was effective. There is simply no basis, no authority that has been cited to me, in support of the proposition that the Tribunal was not entitled to except the applicants’ own evidence that they had Romanian citizenship and what usually flows from citizenship in respect of the rights to entry and residence (see ApplicantsinV722 of 2000 v Minister for Immigration and Multicultural Affairs). The Tribunal is not required, as a matter of law, to obtain evidence to refute a claim of an applicant. A tribunal, not being required to obtain evidence to refute a claim is certainly not required to obtain evidence before it accepts one (see Abebe v The Commonwealth (1999) 197 CLR 510 at [187]).
The Tribunal put to applicants that there was a key issue to be considered; namely whether effective protection was afforded the applicants in Romania because of their Romanian citizenship.
The Tribunal went on to discuss with them the extent of the times they had visited Romania and allow them to respond to the notion that Romania afforded effective protection to them. The applicants made various assertions as to why effective protection could not be afforded them in Romania. The applicants were asked whether they could provide documentary evidence and were afforded the opportunity of providing information after the hearing to support this aspect of their claims, which they did.
The Tribunal considered each one of their assertions and made findings of fact that in effect amounted to a rejection of their contentions in these regards. There is no need, for the purpose of this decision, to canvass each of those assertions and the Tribunal’s corresponding findings. The assertions are covered in the Respondent’s Contentions of Fact and Law and in verbal submissions made at the hearing. Suffice to say, in my view, the findings were open to the Tribunal on the evidence and exhibit probative logic. It is clear, in my view, that what the applicants are complaining of before me is that the Tribunal dealt with each of their assertions adversely.
Having regard to the above, there was no need for the Tribunal to consider effective nationality, as the applicants contend, when it accepted there own claims that they were citizens of Romania. Effective nationality is no more than the capacity to enter Romania and avail themselves of the protection of Romania. There is no other magic involved and those were the issues that the Tribunal grappled with. Koe’s case predated s.36(3) and, in any event, involved the case of Indonesian nationals, who may have obtained Portuguese nationality depending on when they were born, and whether they in fact had any means of actually entering Portugal to avail themselves of residency and resultant protection. The applicant there did not, for instance, have a Portuguese passport. A factual situation significantly different from the one before me in this proceeding. Koe’s case may have been a Full Court decision but it is not authority for anything to do with the proper application of s.36 of the Act as it presently stands, in the factual context of this proceeding.
In any event, s.36(3) is not confined to countries of which the applicant is a national. Embarking, therefore, on an inquiry regarding nationality, whether effective or formal, would be of no relevance. It is sufficient for the purposes of s.36(3) that there be “any country” into which an applicant has a right to enter and reside. The findings of the Tribunal established that there was a country into which the applicants could enter and reside, that country being Romania.
Conclusion
There was not an obligation on the Tribunal to engage in an assessment of whether the applicants’ Romanian citizenship was effective or formal. Nor was there an obligation on the Tribunal to make further enquiry to determine the extent and effect of the applicant’s claims concerning nationality. The Tribunal was entitled to accept their evidence in that regard and further entitled to find on the evidence presented that they had a right of entry into, and a right of residence (whether temporary or permanent) in Romania, which rights were manifest by the numerous exercising of them in the year they came to Australia.
The reality of the applicants’ position is that they seek in this proceeding an impermissible merits review of the Tribunal’s decision.
I cannot find any jurisdictional error on the part of the Tribunal. The Tribunal’s decision is a privitative clause decision and, as such, is afforded protection under s.474 of the Act. Accordingly, the application for review must be dismissed.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM
Associate:
Date: 13 October 2005
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