QAAK OF 2004 v Minister For Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 237 (10 November 2005)

Last Updated: 22 November 2005

FEDERAL COURT OF AUSTRALIA

QAAK OF 2004 v Minister For Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 237

Statutes

Migration Act 1958 (Cth)

Judiciary Act 1903 (Cth)

Cases

QAAH of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 136 Explained, Distinguished

Minister for Immigration & Multicultural & Indigenous Affairs v VFAY [2003] FCAFC 191 Considered

Other Authorities

Convention Relating to the Status of Refugees, 189 UNTS 150 (Geneva, 28 July 1951) Articles 1A(2), 1C(5)

Protocol Relating to the Status of Refugees, 606 UNTS 267 (New York, 31 January 1967)

Convention on the Rights of the Child, 1577 UNTS 3 (New York, 20 November 1989)








QAAK OF 2004 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
QUD 212 of 2005




KIEFEL, JACOBSON AND GREENWOOD JJ
BRISBANE
10 NOVEMBER 2005

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 212 OF 2005

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	QAAK OF 2004 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	KIEFEL, JACOBSON AND GREENWOOD JJ
DATE OF ORDER:	10 NOVEMBER 2005
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. 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.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 212 OF 2005

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	QAAK OF 2004 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	KIEFEL, JACOBSON AND GREENWOOD JJ
DATE:	10 NOVEMBER 2005
PLACE:	BRISBANE

REASONS FOR JUDGMENT

THE COURT:

1 The appellant was born in Romania and is of the Baptist faith. His wife and two of his children were also applicants below but were not parties to the appeal. The outcome of their applications follows that of the appellant. The children were born in Australia following the appellant’s arrival on 4 February 1997 as the holder of a visitor visa. He had left Romania in 1988 when that country was under the rule of Nicholae Ceasescu, who was subsequently overthrown in 1989. He was assessed by a representative of the United Nations High Commissioner for Refugees in Yugoslavia as a political refugee. He subsequently entered the United States of America on an entry permit for permanent residency but left there for Australia ahead of a deportation order.

2 The appellant’s claim is to refugee status. A refugee is defined under Article 1A(2) of the Convention Relating to the Status of Refugees, 189 UNTS 150 (Geneva, 28 July 1951) (‘Refugees Convention’) and the Protocol Relating to the Status of Refugees, 606 UNTS 267 (New York, 31 January 1967) as 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.’

3 The Refugee Review Tribunal (‘the Tribunal’), in its decision of 1 June 2004, affirmed the delegate’s decision not to grant a protection visa under the Migration Act 1958 (Cth) (‘Migration Act’). Nicholson J dismissed the application brought under the Judiciary Act 1903 (Cth) and the Migration Act for the reason that no jurisdictional error was shown.

4 The appellant provided a number of articles and documents to the Tribunal concerning human rights in Romania and the Tribunal referred itself to information concerning Romania including some available on an internet website. The Tribunal’s reasons in relation to the appellant’s claims may be summarised as follows:

1. It did not accept that the appellant had lost his Romanian citizenship. In accordance with the internet information, it found that as a result of a law passed in 1991 there are no grounds for involuntary loss of Romanian citizenship.
2. The government following the Ceasescu regime was independent of and different from that regime. The country is now a constitutional republic with a multiparty system and an elected President. It has a Constitution which provides for freedom of speech. The Tribunal did not accept that the appellant would be punished for escaping from the former regime. No independent evidence supported such a conclusion.
3. If the appellant returned to Romania he would not suffer persecution as a member of the Baptist Church. The Romanian government officially recognises the Church and he would be able to practise his religion. There was no evidence to support his claim that he would be discriminated against in employment because of his religion.
4. Whilst there have been criticisms of the Romanian government for excesses by the police force and for abuse of psychiatric patients, these breaches of human rights were indiscriminate and not for Convention reasons. The evidence did not suggest a pattern of persecution.
5. Moreover, there is a functioning police force, an Ombudsman, human rights groups and an independent judicial system including an appellate system. If the appellant was harmed because of his religion or political opinion there were avenues of complaint and protection.

5 In his Amended Notice of Appeal the appellant argued that he had a well-founded fear of persecution because Romania is still not democratic; some members of the police and judiciary are from the former regime; the government does not support human rights; and young girls are sexually abused by persons in positions of power. The latter is a new allegation and one not raised before, and considered by, the Tribunal. It cannot therefore be said that it failed to address it. The balance of these contentions are contrary to the Tribunal’s findings of fact, which were based upon evidence before it. The Court does not have jurisdiction to determine findings of that kind.

6 The appellant also refers to the fact that he has been assessed as a political refugee by the United Nations Commissioner in Yugoslavia. The Tribunal accepted that he was. He refers to the decision of a Full Court in QAAH of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 136 (‘QAAH of 2004’). He relies upon that decision as authority for the proposition that the onus is upon the Minister to prove that asylum-seekers would be safe in their country of origin if forced to return. That is not correct. The majority there held that a determination by the Minister or delegate that a person was a refugee, in connexion with a temporary visa, pertains when consideration is given to Article 1C(5) of the Refugees Convention. The Article provides, in summary, that the Refugees Convention shall cease to apply to any person if the circumstances in connexion with which they have been recognised as a refugee cease to exist. In their Honours’ view there is no requirement for a de novo hearing. The decision is the subject of an application for special leave.

7 The decision in QAAH of 2004 concerns the construction of provisions of the Migration Act concerning Australia’s obligations and the Refugees Convention. It arises in a circumstance where a decision has been made by the Minister under the Migration Act concerning the status of an applicant for a protection visa and where Article 1C(5) may be relevant. The appellant does not suggest that that Convention provision applies here. QAAH of 2004 cannot, in any event, apply in the present case where the determination as to refugee status was made by another body. Their decision cannot bind the Tribunal, although it may be taken into account. The Tribunal here was aware of it but also clearly considered that the situation which now prevails is different from that which existed at the time of that decision.

8 The appellant further argues that the Tribunal and his Honour should have taken into account that he is the father of Australian-born children. He refers generally to the Convention on the Rights of the Child, 1577 UNTS 3 (‘the CRC’), which was signed by Australia on 22 August 1990, entered into force on 2 September 1990 and was ratified by Australia on 17 December 1990. It does not form part of the domestic law. This point has not been argued before. It was put as a humanitarian ground, but the appellant was unable to connect it, or the CRC, to the Refugees Convention.

9 There have been some cases, where the interests of children in connexion with a decision under the Migration Act are required to be taken into account, in which the Courts have considered whether there was an obligation to consider the CRC. It is not necessary to detail them and the debate which has ensued. This is not such a case. It has not been suggested that the Australian-born children here form a particular social group in Romania, as is necessary for the purposes of considering the application of the Refugees Convention: see Minister for Immigration & Multicultural & Indigenous Affairs v VFAY [2003] FCAFC 191. As was there pointed out, in argument, the CRC and the obligations Australia has assumed thereunder, do not require it to recognise such children as a particular social group. The CRC does not affect the construction of the Refugees Convention or the Migration Act.

10 The appeal should be dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Kiefel, Jacobson and Greenwood.

Associate:

Dated: 10 November 2005

Counsel for the Applicant:	Mr S Nguyen
Solicitor for the Applicant:	Butts & Barkley
Counsel for the Respondent:	Mr P Bickford
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	10 November 2005
Date of Judgment:	10 November 2005