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Federal Court of Australia - Full Court Decisions |
Last Updated: 8 November 2005
FEDERAL COURT OF AUSTRALIA
QAAX v Minister
for Immigration and Multicultural and Indigenous Affairs
[2005] FCAFC
182
MIGRATION – judicial review – protection visa application
– Israeli national – married to Australian Muslim
of Iranian birth
– alleged fear of harm by family in Israel – alleged former service
in Israeli Military Intelligence
– stated opposition to national policies
– alleged fear of harm at hands of military if returned to Israel –
judicial
review application and appeal involving attempted merits review and
wide-ranging allegations of official impropriety – no
merit in appeal
– appeal dismissed
Migration Act
1958 (Cth)
QAAX OF 2004 v MINISTER FOR
IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
QUD 135 OF
2005
FRENCH, FINN AND HELY JJ
30 AUGUST
2005
PERTH (HEARD IN BRISBANE)
On Appeal from a Single Judge of the Federal
Court of Australia
|
BETWEEN:
|
QAAX of 2004
APPELLANT |
|
AND:
|
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS
AFFAIRS
RESPONDENT |
|
DATE OF ORDER:
|
|
|
WHERE MADE:
|
THE COURT ORDERS THAT:
1. The time limited for the filing of the notice of appeal be extended to enable the appellant’s appeal to be heard and determined.
2. The appeal be dismissed.
3. The appellant pay the respondent’s costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order
36 of the Federal Court Rules.
On appeal from a Single Judge of the Federal Court
of Australia
|
AND:
|
REASONS FOR JUDGMENT
THE COURT:
Introduction
1 The appellant is an Israeli national who became married in November 2001 to an Australian citizen who is of Iranian birth and is a member of the Muslim religion. She was unable to obtain a spouse visa to remain in Australia. She then applied, in January 2002, for a protection visa. She did so on the basis that she had a well-founded fear of persecution were she to return to Israel. The fear of persecution was said to be based variously upon her marriage to an Iranian Muslim, her opposition to Israeli national policies and her previous membership of an Israeli Military Intelligence Service. Her application for a protection visa was rejected by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister) on 31 May 2002. She applied to the Refugee Review Tribunal (the Tribunal) for review of the delegate’s decision. In a decision delivered on 16 April 2004, the Tribunal affirmed the decision of the delegate to refuse the appellant a protection visa.
2 The appellant sought judicial review of that decision in the Federal Court. Dowsett J dismissed her application on 28 April 2005. On 26 May 2005 she sought an extension of time within which to appeal. Her application for an extension of time came on for hearing on 22 August 2005. The extension was allowed at that time and argument on the merits of the appeal proceeded.
3 The appellant, who represented herself, was unable to demonstrate any basis upon which the Court should interfere with the decision of the learned primary judge. Much of what she argued constituted an invitation to the Court to engage in merits review and/or raised matters which had not been raised before the primary judge. She made many sweeping assertions of official impropriety in the course of her oral and written submissions. For the reasons which follow, the Court is of the view that her appeal should be dismissed and that she should pay the respondent’s costs of the appeal.
Factual and Procedural Background
4 The appellant is an Israeli citizen. She travelled to Australia on 12 August 2000 on a temporary subclass 686 visa. She departed Australia on 23 November 2000. She re-entered Australia on a subclass 676 visa on 2 November 2001. That visa is broadly described as a ‘three month multiple travel visa’. It had a ‘no further stay’ condition attached to it.
5 On 8 November 2001 the appellant married an Australian citizen who was born in Iran and is a Muslim. It appears that the ‘no stay’ condition on her visa prevented her from applying for a spouse visa while still in Australia. She applied for a waiver of the condition, but waiver was refused. She and her husband were so informed on 14 January 2002.
6 On 24 January 2002 the appellant lodged a protection visa application. In that application she said that she had left Israel to ‘escape anyone in Israel knowing I was going to marry a non-Jew’. She claimed that she would be socially and racially victimised if returned to Israel. A second protection visa application was lodged on 14 March 2002 apparently because of a mistaken view that the first application was incomplete or invalid. In this application she claimed to have served as a member of Israel’s ‘internal intelligence’. She had formed the opinion that she could no longer be part of any political, religious or military organisation in Israel. She opposed racism and fighting in the cause of ‘nationality and independence’. She did not want to be a part of Israeli society any further. Since coming to Australia she had given a ‘red alarm’ to some people in Israel. If she returned she would be arrested. These represent elements of the concerns expressed in her second application. Their formulation in that application was difficult to follow.
7 On 31 May 2002 a delegate of the Minister refused the grant of a protection visa. He was satisfied that the appellant was not a person to whom Australia had protection obligations under the Refugees Convention. The appellant then applied to the Tribunal for review of the delegate’s decision. A hearing before the Tribunal took place in April 2003. In a decision dated 24 March 2004, but which it appears may not have been handed down until 16 April 2004, the Tribunal affirmed the decision of the delegate to refuse the appellant a protection visa.
8 On 24 December 2004 the appellant filed an application in the Federal Court seeking judicial review under the Judiciary Act 1903 (Cth) of the Tribunal’s decision. She contended, inter alia, that the decision was not delivered to her until some considerable time had elapsed after it was handed down. Nothing turns on that delay for present purposes. But because the application was not filed within 28 days of the Tribunal’s decision, the Minister lodged an objection to competency.
9 The application was heard by Dowsett J in Cairns on 26, 27 and 28 April 2005. On 28 April 2005 his Honour made orders striking out the objection to competency, dismissing the application and ordering that the appellant pay the respondent’s costs of the application. On 26 May 2005 the appellant filed an application for an extension of time within which to appeal. A notice of appeal setting out what were described as ‘amended grounds of appeal’ was filed, exhibited to an affidavit filed on 27 June 2005.
10 At the hearing of the appeal on 22 August 2005 the Court granted the application for an extension of time having regard to the short delay and the absence of any prejudice to the Minister. The Court proceeded to hear and deal with the appeal on its merits.
The Reasons for Decision of the Tribunal
11 In its reasons for decision the Tribunal set out the procedural background leading up to the application for review before it.
12 After referring to the relevant provisions of the Migration Act 1958 (Cth) (the Act) and the Refugees Convention the Tribunal set out the appellant’s claims and the evidence relating to them. The Tribunal referred to her first application of 24 January 2002 in which her husband, an Australian citizen, had been wrongly included. The Tribunal noted that in support of her original application the appellant said she left Israel because she feared that her family and other Israelis would come to know that she intended to marry a non-Jew.
13 The Tribunal referred to her claims in support of the original application that her husband would never have been allowed to enter Israel for the marriage to take place there and that if she had remained in Israel she would have been socially and racially victimised. She claimed that her family is politically powerful in Israel and that uncles and other family members had already threatened her husband because of his Iranian birth.
14 The Tribunal referred to the appellant’s unsuccessful attempt to secure a waiver of the ‘no further stay’ condition on the three month multiple travel visa under which she had entered Australia. That application had been accompanied by a copy of her birth certificate, her husband’s Australian citizenship certificate, their marriage certificate and supporting letters. There was a statutory declaration from her husband which supported his wife’s reasons for coming to Australia for their marriage and their ignorance of the ‘no further stay’ condition attached to her visa.
15 The Tribunal then turned to the second application lodged by the appellant. In support of that application she had made the new claim that she had tertiary training in military matters and that she had worked in military intelligence while undertaking compulsory military service in Israel. She had claimed that she was ‘well trained in military intelligence Force with the access to highly confidential documents’. Since she had entered Australia there had been ‘a red alarm’ among some people in Israel. She had not mentioned this in her first application as she had been wary of divulging information which could hurt others and she wanted to ensure confidentiality. A statutory declaration of 10 June 2002, which was also before the Tribunal, had outlined each step taken by the appellant to regularise her residence in Australia. She stated in the declaration that she had alluded strongly to security matters in her first protection visa application.
16 The Tribunal briefly set out the delegate’s decision of 31 May 2002 noting that he had rejected as implausible the appellant’s claim to have been significantly involved in Israeli military intelligence. It referred to a number of submissions made by the appellant concerning her husband’s Iranian background, the problems which led him to flee from Iran and other related matters.
17 The Tribunal then turned to a statutory declaration of 27 December 2002 sent to the Australian Federal Police who sent it on to DIMIA informing the appellant that as it appeared to relate to an immigration matter it was not their concern. In that statutory declaration the appellant described an incident of 10 June 2002 when, she said, her husband was shot while on the balcony of their apartment. Her account appeared to link this incident with matters relevant to her husband’s circumstances but not relevant to her claim for a protection visa. She also said in the declaration that on 20 December 2002 a house in which her husband’s mother was living was broken into and a knife left stabbed through a photograph of the appellant. She did not see it herself. Her husband’s mother told her it had been taken away by the police. She claimed that a friend of her husband found a photograph of her dropped around the side of the house. She realised soon afterwards that a number of photographs of her had disappeared in previous weeks.
18 The Tribunal then considered the application for review before it which included information already sent to DIMIA. That information was before the Tribunal. Among materials attached to the application was a letter from her legal representative, AC Wrenn, suggesting that the attempt on her husband’s life could be linked to the application to remain in Australia. The Tribunal referred to further submissions put to it by the appellant including a letter dated 11 January 2003 in which she expressed her fear she would be killed if she returned to Israel. She attached photographs of damage done to her and her husband’s possessions in the raid on her husband’s house on 20 December 2002. There was also reference to threats.
19 The Tribunal summarised evidence given by the appellant at an oral hearing. Amongst other things, according to the Tribunal, she and her husband were convinced that there was a conspiracy against them which involved departmental officers, migration advisers and people involved in the legal profession. The Tribunal had explained in the course of the hearing that many of the issues which they were raising were not relevant to her claim for a protection visa. It asked the appellant about the option of returning to Israel and applying from there to rejoin her husband. She replied that she was afraid of being questioned by the military as a friend of hers had been. She said that she had been interviewed by the military on her previous return from Australia and that it was dangerous for her in Israel. Her uncle was a senior figure in military intelligence and her family would be extremely upset that she had formed a relationship with an Iranian. She feared they would do her harm and believed that she had already been traced and was the target of threats and assassination. Both she and her husband had changed their names and addresses in an attempt to keep safe.
20 The Tribunal canvassed with the appellant, at the hearing, incidents which she and her husband claimed were evidence that they were at serious risk of harm. In the course of that exchange the husband made comments about a conspiracy which involved the judiciary and lawyers.
21 The Tribunal gave comprehensive consideration to the various matters raised by the appellant. It found that she was an Israeli national. Although she had married an Australian citizen she had not thereby acquired either Australian nationality or permanent residency. The Tribunal said:
‘At this point, it is worth emphasising that the Applicant’s original intention in coming to Australia was to achieve the residential rights necessary to maintain her marriage. The original intention was not to seek protection as a refugee. The implications of this for her protection visa application will be further considered below.’
22 Under the heading ‘Fear’ the Tribunal found that the appellant’s family was well aware that she was making a second trip to Australia. She was anxious about being allowed to marry the man of her choice and that she had expressed that anxiety as fear. The Tribunal noted also her claims to be fearful because of the events already referred to which occurred in Australia after her marriage.
23 Under the heading ‘Persecution’ the Tribunal considered the appellant’s claim that she would be subjected to questioning and investigation by Israeli Intelligence and might even be seriously harmed or killed by members of her family or others linked with Israeli Intelligence. The Tribunal did not accept that questioning and investigation by her country’s authorities would in themselves be persecutory. It referred to her claims of anonymous threats, the alleged shooting of her husband and property destruction and accepted that if these had occurred there might be circumstances in which they could be deemed persecutory.
24 Turning to the grounds, under the Refugees Convention, upon which a well-founded fear of persecution could attract protection obligations, the Tribunal observed that much of the material submitted to it was not relevant to the appellant’s claim that she had such a well-founded fear of persecution. She had raised various matters which did not involve any of the Convention grounds. These included accusations directed at departmental officials and various migration advisers as being involved in a conspiracy against her and her husband and/or impeding their rights in relation to her application for residency in Australia.
25 The Tribunal referred to the appellant’s claim that she feared persecution by members of her family and other citizens of Israel and agents of the Israeli State. In her second protection visa application she had expressed herself in terms of her dislike of extremism and racism in any form and stated that she regarded her government as being involved in actions of that kind. The Tribunal accepted that this could be regarded as the expression of a political opinion contrary to that held by the current government of Israel and contrary to that of her family members, some of whom allegedly had senior positions in agencies of government. Although the appellant had not advanced Convention grounds in terms of religion, ethnicity and political opinion, the Tribunal determined that her claims could be assessed within a framework of such overlapping grounds.
26 In determining whether the appellant’s fear of persecution for Convention reasons was well-founded, the Tribunal observed that it was significant that her claim for protection followed from her inability to change the visa basis on which she was in Australia. The chronology of events relating to her application for a protection visa undermined her claim that she feared persecution for a Convention reason at the time she made her application. Her application followed from her failure to secure a visa to remain in Australia on other spouse grounds. This was consistent with the claims made in her first application for a protection visa, that she left Israel in order to marry and that she tried to prevent her family from finding out her intentions. The Tribunal could not rule out that her reluctance to return to Israel and apply for a visa to enter and remain in Australia in the appropriate manner was a result of a fear that she held and that her family would try to stop her marriage. However it rejected her claim that her family could arrange for her to suffer serious physical harm. The appellant had given evidence that she was in touch with her mother weekly and also that she greatly missed her family. Indeed her description of her upbringing had indicated a close, supportive family. Allied with this was a comment that her family was observant in religious matters making it more implausible that they would harm her in contradiction of their religious and moral beliefs.
27 The Tribunal referred to the appellant’s claims that some members of her family are highly placed in the Intelligence Service and in the Israeli Government Department which controls the issuing of passports and her claim that they have the power to harm her. The Tribunal said that it did not have access to any complete list of senior Intelligence officers. It found it plausible that the appellant’s uncle was in such a post. It also accepted that her aunt is a senior person in the section which issues passports. The Tribunal said:
‘However, it does not follow that either of them are in a position to, or would have the intention to, harm the Applicant.’
In the event the Tribunal concluded that the claimed fear of well placed family members and their capacity to persecute the appellant was not well founded. The Tribunal was obviously not persuaded by the appellant’s claim in support of her second protection visa application based upon service with Military Intelligence. In support of her first visa application she said that she had spent her time in the army learning and doing accounting. It was only in the second application that she stated that her occupation was related to ‘access codes’ and her qualifications were ‘military second degree commando, intelligence and emergency unit, Sergeant’. She repeated in both applications that her next occupation, post-army, was that of accountant. The Tribunal found that her private sector employment as an accountant supported the inference that the information in her first application form was true, namely that she did accountancy while undertaking her military service. It found it implausible that she would have been trained in security to such an extent that she would be regarded as a security risk by marrying an Iranian Muslim. She was in military training for only 18 months and had no further military obligations. It was implausible that a military organisation as professional as that of the Israeli Army would initiate such a temporary recruit into matters of serious intelligence. The Tribunal found her claim ‘not to be true’.
28 The Tribunal also ‘discounted’ the appellant’s claim that she and her husband had been subjected to ongoing threats in Australia emanating from Israel for any reason connected to State security. The word ‘discounts’ does not give guidance to the nature of the finding that the Tribunal was making in using it. The Tribunal referred to the alleged shooting on 10 June 2002. That matter was investigated by the police and there had been no arrest at the time of the Tribunal decision. The information given to the Tribunal by the appellant and her husband suggested, absent any other evidence, that it was ‘simply a random shooting, being linked to the latter’s business and legal dealings’. There was no convincing evidence that the appellant was a target or was the reason for the attack. The house break in which was described in some detail in a number of submissions was also found by the Tribunal to be linked to the husband’s problems and not to the appellant’s. It considered her claim that a photograph of her was found in the house slashed by a knife. A series of photos of damage caused to a house owned by her husband had been submitted to the Tribunal. The photographs indicated overturned furniture and doors pulled off cupboards. In contrast the photographs of the house at the time of the alleged ‘knife in the photo’ incident indicated an orderly background. The chairs were carefully placed around the table and ornaments on a glass topped small table were intact. It appeared posed, as did a photograph said to have been taken at the side of the house where a photograph of the appellant lay on top of leaves and other debris. The Tribunal did not find these to be genuine pieces of evidence supporting her claims to be a person in need of Australia’s protection.
29 The Tribunal found that the submissions made by the appellant and her husband indicated that the source of their current difficulties began prior to their meeting and their marriage and were part of the complex consequences of an industrial accident which her husband had suffered and a compensation payout related to it. He had given evidence that they were remaining in Cairns and that he had not been able to complete all the legal processing of his name change because he was involved in a pending court case. Such matters, according to the Tribunal, pointed to Australian-based problems facing the appellant and her husband rather than a threat from any agent of persecution from her country of nationality.
30 The Tribunal concluded the Findings and Reasons section of its reasons for decision as follows:
‘As indicated above, the Tribunal accepts that the marriage has caused a major rift for the Applicant with her family. It accepts that she connived to leave Israel in order to marry a person considered totally unsuitable by her parents and that such a view would be shared by many Israeli Jews. It rejects her claim that her family would harm her or cause anyone else to harm her for reasons of her marriage. It also finds that the Israeli government has no reason to treat her in a persecutory manner. It has given weight to the fact that she made an application for a protection visa at the point at which she was advised this was an avenue to solve the problem created by her visa limitation. Evidence before the Tribunal indicates that the Applicant has pursued a refugee claim believing it was the next course open to her in her anxiety to find a way to remain with her husband in Australia.
The Tribunal has viewed the video-tape, the CD, the T-shirts and the written submissions under the title ‘The Voice of Innocence’. These submissions are confusing in their content and contain appeals and demands to persons as diverse as the Pope, Queen Elizabeth II, the Prime Minister, the Chief Justice of the High Court, television channels and media personalties. While these demonstrate a high level of fear and anxiety, they do not contribute substance to the Applicant’s claim that she is a person who is in need of Australia’s protection.
After careful consideration, the Tribunal finds that the fears claimed by the Applicant are not well-founded in the context of a Convention claim. She is not a refugee.’
The Grounds for Review of the Tribunal Decision
31 The grounds for the review of the Tribunal decision were uninformatively stated. They were:
‘1. The Respondent’s decision was wrong in fact, in that, the applicant did satisfy the criteria set out in s 36(2) of the Migration Act 1958.
2. The Respondent’s decision took into account irrelevant considerations.
3. The Respondent’s decision took into account unreasonable considerations.
4. The Respondent’s decision to refuse the application failed to take into account relevant considerations.
5. The Respondent failed to take into account relevant facts in making the decision.
6. The Respondent’s decision was contrary to the evidence.
7. The Respondent did not provide the decision of the Refugee Review Tribunal, in compliance with the mandatory provisions of s 430B(6) of the Migration Act 1958.’
The Minister filed an objection to competency on
the basis that the application had not been made within 28 days of the
notification
of the Tribunal’s decision to the appellant.
The
Particulars of the Grounds for Judicial Review
32 Particulars of the grounds for judicial review were filed and were as follows:
‘1. The Respondent’s decision was wrong in fact, in that, the applicant did satisfy the criteria set out in s 36(2) of the Migration Act 1958.
a) The Tribunal was wrong in finding that the fears claimed by the Applicant were not well-founded in the context of a Convention Claim because;
i) The relationship and subsequent marriage is the essential and significant reason for the fear of persecution because of her race, religion, nationality, membership of a particular social group and/or political opinion;
ii) The applicant has suffered actual persecution and continues to suffer persecution involving serious harm because of the relationship and subsequent marriage to a person of different race, religion, nationality, membership of a particular social group and/or political opinion, which is contrary to her fundamental human rights traditionally guaranteed in a democratic society;
iii) The persecution was systematic; and
iv) The persecution was discriminatory;
v) The applicant’s family could arrange for her to suffer serious physical harm;
vi) The applicant’s well placed family members did have capacity to harm her;
vii) The applicant was in danger of being persecuted by the State of Israel because of her military service in conjunction with her marriage;
viii) The applicant and her husband had been subjected to on-going threats in Australia, emanating from Israel for reasons connected with state security;
ix) The husbands (sic) shooting which took place on 10th June 2002 was targeted at the Applicant’s marriage and the reason for the assault;
x) The Kuranda house break-in was linked to the Applicant’s marriage;
xi) There is substance in the claim that the Applicant and her husband arte at risk of persecution for reasons of their marriage; and
b) She is a refugee within the meaning of Article 1A(2) of the Convention as she is unable to, and/or unwilling to return to Israel with or without her husband because of the persecution and/or her fear of continued persecution.
2. The Respondent’s decision took into account irrelevant considerations. The irrelevant considerations that were taken into account were:
i) Although she has married an Australian, she has not by that fact acquired either Australian nationality or permanent residency;
ii) The applicants (sic) original intention in coming to Australia was to achieve the residential rights necessary to maintain her marriage;
iii) The original intention was not to seek protection as refugee;
iv) Rejecting her claim that she fled from Israel with no luggage and no documents except her passport and her birth certificate;
v) The applicant’s family did not have any right to cause any harm to the applicant;
vi) The source of their current difficulties began prior to their meeting and their marriage and are part of the complex consequences of the husband’s industrial accident and compensation payout;
vii) That she made application for a protection visa at the point at which she was advised this was an avenue to solve the problem created by her visa limitation and pursued a refugee claim believing it was the next course open to her in her anxiety to find a way to remain with her husband in Australia;
3. The Respondent’s decision took into account unreasonable considerations. The unreasonable considerations that were taken into account were:
i) The applicants (sic) original intention in coming to Australia was to achieve the residential rights necessary to maintain her marriage;
ii) Accepting the Departments (sic) assertion that the Applicant who is well educated, was given information in her own first language, Hebrew, which stated that there could be no change of status on the visa by which she entered Australia the second time;
iii) The chronology of events undermined the applicant’s claim that she feared persecution for a Convention reason at the time she made her application for protection;
iv) That is it was implausible that she would have been trained in security to such an extent that she would be regarded as a security risk by marrying as she has done.
4. The Respondent’s decision to refuse the application failed to take into account relevant considerations. The relevant considerations which the Respondent failed to take into account were;
i) The relationship and subsequent marriage is the essential and significant reason for the fear of persecution because of her race, religion, nationality, membership of a particular social group and/or political opinion;
ii) The applicant has suffered actual persecution and continues to suffer persecution involving serious harm because of the relationship and subsequent marriage to a person of different race, religion, nationality, membership of a particular social group and/or political opinion, which is contrary to her fundamental human rights traditionally guaranteed in a democratic society;
iii) The persecution was systematic;
iv) The persecution was discriminatory;
v) The applicant’s family could arrange for her to suffer serious physical harm;
vi) The applicant’s well place family members did have capacity to harm her;
vii) The applicant was in danger of being persecuted by the State of Israel because of her military service in conjunction with her marriage;
viii) The applicant and her husband had been subjected to on-going threats in Australia, emanating from Israel for reasons connected with state security;
ix) The husbands (sic) shooting which took place on 10th June 2002 was targeted at the Applicant’s marriage and the reason for the assault;
x) The Kuranda house break-in was linked to the Applicant; and
xi) There is substance in the claim that the Applicant and her husband are at risk of persecution for reasons of their marriage.
5. The Respondent failed to take into account relevant facts in making the decision. The relevant considerations that were not taken into account were;
i) that Departmental officials of and named migration advisers were alleged to have been in a conspiracy against them (the applicant and her husband) and/or impeding their rights in the matter of her application for residency in Australia;
ii) that the applicants’ (sic) husband’s legal difficulties were not relevant to the applicant’s matter, and no convention matter is raised by these elements in the submissions;
iii) that the applicant had information to access codes in her qualifications as a Military 2nd degree Commando, Intelligence and Emergency Unit, Sergeant;
6. The Respondent’s decision was contrary to the evidence, in that:
i) The relationship and subsequent marriage is the essential and significant reason for the fear of persecution because of her race, religion, nationality, membership of a particular social group and/or political opinion;
ii) The applicant has suffered actual persecution and continues to suffer persecution involving serious harm because of the relationship and subsequent marriage to a person of different race, religion, nationality, membership of a particular social group and/or political opinion, which is contrary to her fundamental human rights traditionally guaranteed in a democratic society;
iii) The persecution was systematic;
iv) The persecution was discriminatory;
v) The applicant’s family could arrange for her to suffer serious physical harm;
vi) The applicant’s well placed family members did have capacity to harm her;
vii) The applicant was in danger of being persecuted by the State of Israel because of her military service in conjunction with her marriage;
viii) The applicant and her husband had been subject to on-going threats in Australia, emanating from Israel for reasons connected with state security;
ix) The husbands (sic) shooting which took place on 10th June 2002 was targeted at the Applicant’s marriage and the reason for the assault;
x) The Kuranda house break-in was linked to the Applicant; and
xi) There is substance in the claim that the Applicant and her husband are at risk of persecution for reasons of their marriage.
7. The Respondent did not provide the decision of the Refugee Review Tribunal, in compliance with the mandatory provisions of s 430B(6) of the Migration Act 1958. The Applicant was notified, (through her husband and authorized person [name included]), of the decision that is subject of this application, on the 3 December, 2004, but otherwise has never received notification of the decision that is sought to be reviewed by the court.’ (sic)
The Reasons for Decision of the Primary Judge
33 The primary judge set out at some length extracts from the reasons for decision of the Tribunal which have already been summarised. His Honour also referred to the various grounds of the application for judicial review.
34 Ground 7, which concerned a delay in providing the decision of the Tribunal to the appellant, was not raised as a matter going to the validity of the decision. The appellant’s counsel did not argue it on that basis. It rather related to the question whether the application for judicial review had been filed within any relevant statutory time limit. As his Honour disposed of the case on the merits, he took the view that it was unnecessary for him to consider that issue which was raised by the objection to competency.
35 His Honour observed that the grounds of the application smacked strongly of ‘merits review rather than an allegation of jurisdictional error’. His Honour found the particulars of the grounds also suggested ‘merits review’.
36 In providing an overview of the submissions put to him his Honour said (at [9]):
‘In addition to the grounds of review identified in the application and the particulars, counsel for the applicant advanced two other grounds in written and oral submissions. Firstly, he submitted that the decision was bad for unreasonableness. Secondly, in his written submissions, and to some extent in oral argument, there was reference to a denial of procedural fairness. However, with one exception, counsel conceded that such references were to the issues identified above, namely failure to consider relevant material, consideration of irrelevant material and unreasonableness. In other words, each of these grounds was said to be a head of procedural fairness. Whether or not that is so need not concern me for the moment. In the end, counsel for the applicant conceded that all grounds of review depended upon one aspect of the case to which I now turn.’
37 The principal question debated before his Honour concerned the imposition of the condition on the appellant’s multiple travel visa, which condition prevented her from seeking to remain in Australia past the expiry date of the visa subject only to the possibility of her being granted a protection visa. The appellant asserted that she did not become aware of that condition until after she had entered Australia. Her application for its waiver was rejected on 14 January 2002. Since that time she had taken steps to find out why the condition was imposed and why it had not been waived. She subsequently applied for the protection visa. She said that she had raised her concern about the reason for imposing the condition with the Tribunal when it was considering her application for a protection visa. At some time after the Tribunal had refused her application she discovered that an officer of the Australian Embassy in Israel had given a statement of reasons for imposing the condition, which included the following:
‘Condition 8503 was imposed given the relatively high non-return rate for people in her circumstances and the fact that she was unemployed, unskilled and supported by parents. This added to her stated links in Australia (cousins) resulted in the decision maker having residual concerns that she may seek to remain.’
38 His Honour observed that the appellant’s complaint about this document focussed upon the paragraph quoted above and in particular upon the assertion that she was unemployed, unskilled and supported by her parents. The appellant contended that, to the contrary, she was employed, skilled and self-supporting. The condition had therefore been imposed on a factually incorrect basis. She sought to lead evidence before his Honour that her application for the relevant visa had contained information contrary to the factual basis upon which the officer claimed to have acted in imposing the condition. His Honour rejected that evidence because it was not before the Tribunal. Counsel had asserted that the appellant did not know of the reasons for the imposition of the condition on her multiple travel visa at any time prior to the Tribunal’s decision as she had not been given access to the document stating the reasons for it. It was also submitted that had she known of those reasons she could have demonstrated that they were incorrect and that the officer must have known that they were incorrect as the true position had appeared from her visa application. His Honour said:
‘It is then submitted that in those circumstances, the applicant would have asked the Tribunal to infer that the officer had imposed the condition for some ulterior purpose, in particular that he acted at the behest of a member of the applicant’s family who was, in turn, motivated by a desire to prevent her marriage. It is then said that this inference would have supported the applicant’s claim to fear persecution by her family for a Convention reason.’
39 It was submitted to his Honour that the Tribunal’s decision was flawed because:
‘. the document containing the officer’s reasons should have been disclosed to the applicant; or
. the Tribunal should, itself, have investigated the matter and established the true reasons for imposing the condition.’
40 His Honour found no evidence that the appellant had, at any time prior to the Tribunal’s decision, claimed a connection between the imposition of the visa condition and her family. Counsel had been given every opportunity to demonstrate the connection but could not do so. From the Tribunal’s perspective the statement of the officer as to his reasons for imposing the condition was irrelevant to its task. Its task was to determine whether Australia had a protection obligation to the appellant. Until the appellant made her allegation of the connection it was not apparently relevant. Whilst accepting that the appellant now asserted a connection with her family his Honour said that the allegation of an incorrect factual basis for the imposition of the condition did no such thing. The generalised comments by the officer may have honestly reflected his views of the material available to him, whatever that was. The appellant’s claims were purely speculative. In any event the information could not go to her fear of persecution as at the time of the decision. She did not then know about it.
41 His Honour observed that the appellant did not raise absence of procedural fairness as a ground in either the application or the particulars. A breach of the rules of natural justice was asserted, but the appellant’s counsel at the hearing before his Honour conceded that the reference was merely to the other grounds, namely taking into account irrelevant considerations, failure to consider relevant considerations and unreasonableness. It could not be said that the document containing the statement of reasons for the imposition of the condition on her multiple travel visa should have been disclosed to the appellant by the Minister for any reason akin to the discovery obligation in litigation.
42 His Honour regarded it as significant that the Tribunal had rejected the claim that the family desired to persecute the appellant. That conclusion was based on the appellant’s evidence about her relationship with her family and in particular her mother. Her conspiracy theory could not improve her case because it assumed what the Tribunal had rejected. There was no basis for the assertion that the decision was tainted with error because of the failure to give access to the officer’s statement.
43 His Honour noted that in the course of the proceedings the appellant had alleged serious misconduct by public servants and a conspiracy between the Israeli and Australian governments. She had alleged that her husband was shot at (inferentially by a government agency) and that she was raped while in immigration custody. His Honour observed (at [16]):
‘The latter claim arose after the Tribunal’s decision and is not relevant for present purposes, serious as it is. The allegation concerning her husband was dealt with by the Tribunal in its reasons.’
44 His Honour then referred briefly to the Tribunal’s general findings rejecting the appellant’s fears of persecutory conduct by her family and by Israeli security. He concluded that there was no jurisdictional error disclosed in the Tribunal’s findings and on that basis dismissed the application. He found it not necessary to deal with the objection to competency and decided that it should be struck out.
The Amended Grounds of Appeal
45 The amended grounds of appeal as set out in the appellant’s notice of appeal were in the following terms:
‘1. THE FEDERAL COURT ERRED IN LAW IN THAT JUSTICE DOWSETT ON 26 AND 27 AND 28 APRIL 2005 DID NOT ALLOW THE EVIDENCE TO BE ADMITTED IN THAT THE APPLICANT HAD BEEN DENIED PROCEDURAL FAIRNESS IN THE COURT BELOW: AND/THAT
1(a) His Honour erred in law in failing to take into account the evidence, which should have been admitted and/that the applicant was denied natural justice and without cross-examine (sic) the Applicant’s only application No: V02/14216 dated 20/-6/2002 before the Tribunal:
(i) And/that a breach of the rules of natural justice has occurred in connection with the conduct;
(ii) And/that the decision by Tribunal was induced and affected by fraud;
(iii) And/that the Applicant application No: V02/14216 constituted with the Applicant complaint in the statutory declaration sworn on 10 June 2002 against the decision by Scott Brawley acting as the delegate of the Minister for Immigration and Multicultural Affairs given on 31 May 2002 before the Tribunal was not heard;
(iv) Otherwise, under the Constitution, s 75(v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.
2. THE FEDERAL COURT ERRED IN LAW TO RELY ON THE ALLEGED DECISION OF JANET WOOD, MEMBER OF THE REFUGEE REVIEW TRIBUNAL GIVEN ON 24 MARCH 2004 WITHOUT PROVIDING A SUBSTANTIVE REASON:
(a) His Honour erred in law to rely on the alleged decision of JANET WOOD, Member of the Refugee Review Tribunal given on 24 March 2004 without providing a substantive reason and without considering Part V section 35A(a)(i) of the Judiciary Act 1903.
3. THE FEDERAL COURT ERRED IN LAW TO DENY THE APPLICANT NATURAL JUSTICE:
(a) His Honour erred in law to deny the applicant Natural Justice and to dismiss the applicant’s application without the opportunity for cross examination and/that not allowing counsel to be heard on submissions relating to the evidence before the court and/that as matter of Natural Justice and a matter of law the applicant would have been entitled to have merit as a basis on evidence before the court.
4. THE FEDERAL COURT FAILED TO TAKE INTO ACCOUNT RELEVANT FACTS IN MAKING THE DECISION:
(a) His Honour made the decision based the decision on the existence of a particular fact, and that fact did not exist.
5. THE FEDERAL COURT JUDGE DECISION INVOLVED AN ERROR OF LAW:
(a) His Honour erred in law and failed to consider that the denial of natural justice is jurisdictional error.
(b) His Honour erred in law to dismiss the applicant’s application without cross-examining the relevance of the Islamic Court warrant on the respondent’s file purposely made by Migrant resource centre in Australia on [12/08/1999] to hunt the applicant’s husband that lead to the applicant’s systematic persecution in Israel and/that the persecution is systematic and the persecution is discriminatory.
(c) His Honour erred in law to deny the applicant Natural Justice and to dismiss the applicant’s application without considering the constitutional grounds and without cross examining the relevance of the document depends upon an email of Australian Embassy officer Abdullah Azar in Israel [04/01/2002] on the respondent’s file which demonstrating the applicant’s fear of persecution and that such fear is well-founded.
(d) His Honour erred in law to dismiss the applicant’s application without cross-examining the relevant of the evidence before the court depends upon an email of Australian Embassy officer Abdullah Azar in Israel [04/01/2002] on the respondent’s file which the officer in Israel based on false and misleading statement and contrary to the Administrative Decisions (Judicial Review) Act 1977 (Cwlth) incited the respondent’s agent in Australia to refuse the applicant’s application in Australia.
6. THE MAKING OF THE DECISION INVOLVED A DENIAL OF PROCEDURAL FAIRNESS:
(a) His Honour erred in law in failing to take into account the evidence before the Court and not cross examining the relevance of the evidence depends upon the applicant complaint made on 10/06/2002 regarding Scott Brawly acting as the delegate of the Minister for Immigration and Multicultural Affairs and/that on the same date the 10/06/2002 at night the applicant husband being shot whilst standing on the veranda of their home in Cairns and/that on the same date the 10/06/2002 the Australian Embassy officer Abdullah Azar in Tel Aviv/Israel destroyed all records relating to the applicant including documents relates the code 8503 on the applicant visa and/that on 03/07/2002 the respondent agent Ross Smith from the same office of Scott Brawly in Sydney with no authority scanned the Applicant photographs and with no constitutional rights the respondent agent obtained the Applicant photographs to Queensland Police in Cairns and/that on 20/12/2002 the Applicant’s house in Kuranda North of Cairns was break in and damaged where a recent photo of the Applicant from Israel was found.
7. THE MAKING OF THE DECISION INVOLVED PERCEPTION OF BIAS:
(a) His Honour decision was an exercise of a personal discretionary power at the direction or behest of another person;
(b) His Honour erred in law and made discriminative statement to the Applicant that: if the Australian Government made crime, so how can the Applicant ask for protection from this court from this country, and/that;
(c) His Honour statement is exercise of a power in a way that constitutes abuse of the power.
8. THE DECISION WAS BASED ON AN IMPROPER EXERCISE OF POWER:
(a) His Honour erred in law by making a decision to dismiss the applicant’s application was an improper exercise of the power and/that breach of the rules of natural justice has occurred in connection with the conduct.
9. THE FEDERAL COURT JUDGE DECISION WAS CONTRARY TO THE EVIDENCE:
(a) His Honour erred in law in failing to take into account the evidence before the Court that on 24 March 2004 the Refugee Review Tribunal Member JANET WOOD made an alleged decision contrary to Administrative Decisions (Judicial Review) Act 1977 and the making of the Tribunal decision involved a denial of procedural fairness and the making of the Tribunal decision was not in keeping with the principles of Natural Justice and the alleged decision by JANET WOOD is contrary to the Applicant application constituted by the Applicant complaint in a Statutory Declaration sworn on 10 June 2002.
10. THE JUDGMENT TO DISMISS THE APPLICANT’S APPLICATION WAS INCORRECTLY MADE BECAUSE OF SOMEONE’S DECEIT:
(a) His Honour erred in law to deny the applicant natural justice and deny the Applicant application before the Refugee Review Tribunal that constituted by the Applicant complaint dated 10/06/2002 against Scott Brawley the delegate of the Minister for Immigration and Multicultural Affairs.
11. THE FEDERAL COURT’S DECISION TO DISMISS THE APPLICATION WAS AN UNREASONABLE EXERCISE OF THE COURT’S DISCRETION:
(a) His Honour erred in law in failing to take into account that the Applicant had been denied Natural Justice and/that did not receive the Refugee Review Tribunal decision and/that whilst the Applicant was waiting for respond from the Tribunal then on 6 October 2004 with unwarranted demands the Applicant was unlawfully arrested at the applicant’s residential address thereafter held in custody in the Cairns Police Watch-house subsequently held at women’s correction centre in Brisbane until her release on 30 December 2004 and with limited communication or access to the applicant, the Applicant then was notified (through her husband as authorized person) of the decision on the 03/12/2004, but otherwise the Applicant has never received the decision until her release from Women’s Correction Centre on 30/12/2004 and upon the Applicant return to Cairns/Queensland in early January 2005 the Applicant husband showed the Applicant the copy of the decision made in March 24, 2004 by RRT Member Janet Wood.
(b) His Honour erred in law to deny the applicant Natural Justice and to dismiss the applicant’s application without the opportunity for cross examination that the respondent did not provid (sic) the applicant the decision of the Refugee Review Tribunal allegedly made on 24 March 2004, and/that on 6 October 2004 the applicant was unlawfully arrested at her residential address by the respondent agents and/that under the care of Commonwealth and the Federal Jurisdiction in Australia whilst the applicant was detained at Cairns watch-house the applicant was brutally, psychologically, physically and sexually assaulted and seriously harmed.
(c) And/that its lawful Detention and Deprivation of Liberty.’ (sic)
An Appeal without Merit
46 The appellant appeared by herself by video link from Cairns. She had previously filed extensive written submissions which were read by the Court. In addition she was invited to comment on each of the grounds of appeal set out in the notice of appeal. Many of these grounds sought to raise matters going to the merits of the Tribunal decision and/or matters which were never raised before the Primary Judge. The Court explained to the appellant in the course of argument the limitations on the Court’s jurisdiction in respect of judicial review of Tribunal decisions. It explained to her that it was unable to enter upon merits review. Moreover, it would not at this stage entertain a raft of grounds of appeal on matters which were not raised before his Honour. In particular it could not entertain the serious allegation that the entire decision of the Tribunal was fraudulent. There were repeated references to ‘natural justice’ in the appellant’s oral and written submissions. These appeared to be based, to some extent, upon a misconception of the scope of natural justice. In particular there was reference to the appellant having been taken into immigration detention following the Tribunal decision but before she had been given a copy of that decision. This was a matter which did not go to the validity of the decision nor was it a matter which could properly be considered by the primary judge or by this Court.
47 The appellant alleged in ground 4 of the notice of appeal that the primary judge had made his decision based upon the existence of particular facts which did not exist. This was in truth simply advanced as a vehicle for expressing her disagreement with the findings of fact made by the Tribunal.
48 None of the submissions advanced by the appellant in her written or oral submissions disclosed any arguable ground for disturbing his Honour’s decision.
49 The appellant in her oral and written submissions made sweeping allegations of improper and criminal conduct by public officials, court staff and members of the judiciary. She alleged that there was ‘a perception of bias’ on the part of the primary judge and that he ‘persecuted’ her. She contended that his Honour abused his power. Moreover she contended that he acted at the behest of a third party. These allegations were not substantiated. They should never have been made.
50 Despite the appellant’s obviously passionate belief in the justice of her cause and the wide-ranging impropriety of almost every official she has ever dealt with, there is no legal basis upon which this Court could interfere with the primary judge’s decision. The appeal will be dismissed with costs.
Associate:
Dated: 30 August 2005
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The appellant appeared in person (via video link)
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Counsel for the Respondent:
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Mr M Bignall
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Solicitor for the Respondent:
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Clayton Utz
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Date of Hearing:
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22 August 2005
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Date of Judgment:
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30 August 2005
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URL: http://www.austlii.edu.au/au/cases/cth/FCAFC/2005/182.html