AZAAL v Minister for Immigration & Anor [2009] FMCA 23 (23 January 2009)

Last Updated: 29 January 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AZAAL v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 23

MIGRATION – Protection visa – Refugee Review Tribunal finds that Albanian applicant has not availed himself of the right to enter and reside in Italy – no jurisdictional error – application refused.

Migration Act 1958 (Cth), ss.36, 357A, 420, 422B, 424, 424A, 474 & 476 Border Protection Legislation Amendment Act 1999 (Cth) Convention relating to the Status of Refugees 1951 Protocol relating to the Status of Refugees 1967

Craig v The State of South Australia [1995] HCA 58 Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 NBLC v Minister for Immigration [2005] FCAFC 272; (2005) 149 FCR 151 Applicants A105 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 214 Minister for Immigration & Multicultural Affairs v Thiyagarajah (1998) 80 FCR 543 NAGV and NAGW of 2002 v Minister for Immigration & Multicultural and Indigenous Affairs [2005] HCA 6; (2005) 222 CLR 161 SBLF v Minister for Immigration & Citizenship [2008] FCA 1219 Minister for Immigration & Multicultural Affairs v Lay Lat (2006) 151 FCR 214 SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62 SZIFI v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCA 63

Applicant:

AZAAL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

ADG 133 of 2008

Judgment of:

Lindsay FM

Hearing date:

23 September 2008

Date of Last Submission:

23 September 2008

Delivered at:

Adelaide

Delivered on:

23 January 2009

REPRESENTATION

Counsel for the Applicant:

Mr Winter

Solicitors for the Applicant:

Winters Solicitors

Counsel for the Respondents:

Mr D’Assumpcao

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

(1) The Application for Judicial Review filed on 2 June 2008 be refused.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE

ADG 133 of 2008

AZAAL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. These proceedings arise out of an application under s.476 of the Migration Act 1958 (“the Act”) seeking a review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 15 May 2008.
2. The wife and children of the applicant did not make any claims for a protection visa themselves but apply as members of the applicant’s family upon the basis that he is entitled to a protection visa.
3. Protection visas are granted to persons who satisfy the Minister that they are refugees to whom Australia owes obligations under the Convention and Protocol relating to the Status of Refugees. In this case the applicant, who is a citizen of Albania says that he is at risk of persecution if he is returned to Albania on account of his religion. The delegate of the Minister refused the application on 8 January 2007, which led to the application to the Tribunal.
4. The decision of the Tribunal is a privative clause decision according to s.474 of the Act and is final and conclusive unless it can be demonstrated that it has been vitiated by jurisdictional error. Jurisdictional error is a concept best explained by the High Court decision of Craig v The State of South Australia [1995] HCA 58. In the context of applications under the Act it is best explained by the High Court decision of Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476.
5. The applicant arrived in Australia with his family on 25 September 2006. His application for a protection visa was lodged on 14 November 2006.
6. The essence of the claim for refugee status was that the applicant’s life had been threatened in Albania on account of his being a practising Catholic by persons of the Muslim faith. Very extensive and detailed material was filed by the applicant and by persons on his behalf explaining the events in Albania that gave rise to the applicant’s fear of persecution. It is clear that the Tribunal considered that there were significant issues relating to the credibility of this material but ultimately the application was determined without specific findings having been made as to these matters. The application was refused because the Tribunal was satisfied that the applicant had not taken all possible steps to avail himself of a right to enter and reside in Italy. In other words, the Tribunal took the view that, pursuant to s.36(3) of the Act, Australia was not to be taken to have protection obligations to the applicant. Moreover, the Tribunal found that sub-ss.(4) and (5) of s.36 of the Act did not apply to the applicant in that he did not have a well-founded fear that he would be persecuted in Italy on account of his religion or for any other Convention reason and nor did he have a well-founded fear that Italy would return him to Albania where he would be persecuted for a Convention reason.
7. It was not ultimately a matter of dispute that the applicant had first travelled to Italy in 1994 nor that he lived in and worked in Italy from July 1997 until June 2006.
8. There was nothing inappropriate in the Tribunal determining the matter under s.36(3) of the Act without having first determined whether the applicant had a well-founded fear of persecution for a Convention reason in Albania. (See the decision of Graham J in NBLC v Minister for Immigration [2005] FCAFC 272; (2005) 149 FCR 151 at [48]; see also the decision of Mansfield J in Applicants A105 of 2003 v Minister for Immigration & Multicultural Affairs & Indigenous Affairs [2004] FCA 214, which remarks are not depleted of their authority on account of the reliance in the earlier part of the judgment upon the principle arising from the decision of Minister for Immigration & Multicultural Affairs v Thiyagarajah (1998) 80 FCR 543, which principle was overruled by the High Court in NAGV and NAGW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 6; (2005) 222 CLR 161. The instant case, of course, is to be determined under the provisions of the Act as modified by the Border Protection Legislation Amendment Act 1999 (Cth)).
9. It is expedient to set forth the provisions of sub-ss.(3) to (5) of s.36 of the Act before proceeding further:
   • (3) 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.
   • (4) However, if the non-citizen has 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, subsection (3) does not apply in relation to that country.
   • (5) Also, if the non-citizen has a well-founded fear that:
     • (a) a country will return the non-citizen to another country; and
     • (b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion;
     • subsection (3) does not apply in relation to the first-mentioned country.
10. The first complaint is that the Tribunal fell into jurisdictional error in making the following finding at CB 271:
    • The Tribunal is satisfied, as a question of fact, based on the authoritative information before it, that the applicant has not taken all possible steps to avail himself of a legally enforceable right to enter and reside in Italy by right of both the applicant and his wife holding Italian Carta Di Soggiorno Per Stranieri (Foreigner’s Permit of Stay) permits. The Tribunal bases the finding that the applicant has an existing right to enter and reside in Italy on the information which the Department of Foreign Affairs and Trade (DFAT) provided in response to two information requests from the Tribunal.
11. The Tribunal had two letters before it from the Department of Foreign Affairs and Trade (“DFAT”) in relation to the applicant’s entitlements pursuant to a document issued to him by the Italian Government called a ‘Carta Di Soggiorno Per Stranieri’ or a ‘Foreigner’s Permit of Stay’. The first letter was dated 22 October 2007 (or possibly 18 October 2007-there is an inconsistency in the date referred to by the Tribunal as the date on which the response was received from DFAT between CB 185 and CB 271 but nothing turns on this) and the answers contained in that letter found their way into the first of the two s.424A letters the Tribunal sent the applicant on 20 November 2007. The second s.424A letter was sent on 2 January 2008 and contained further information provided by DFAT to the Tribunal in a letter of 27 November 2007.
12. The cumulative effect of the information provided by DFAT was that the applicant had an ongoing right to enter and reside in Italy. The document had no expiry date. It was issued to long term residents. It was valid until such time as the holder leaves Italy definitively. If the holder leaves definitively the documents needed to be returned to the frontier police as they left Italy. The same matters pertained to the documents held by the applicant’s wife and children. The documents gave the holders of them eligibility for all social services not reserved exclusively to Italian citizens and that was the vast majority of social services, including unemployment benefits, housing assistance and health care.
13. The applicant’s response to the s.424A letters was to acknowledge that the documents allowed him and his family to return to Italy but that he was not a citizen of Italy and that his permit could be cancelled at any time, especially if he was not employed. Furthermore, he said that he would not be safe in Italy but would continue to be a target of those persons who had threatened him in Albania prior to his departure. He would be highly anxious if he returned to Italy and unable to support himself.
14. As noted above, the first complaint is that the Tribunal made these findings when there was insufficient evidentiary material entitling it to do so. I do not think there is any substance in this complaint. The Tribunal is entitled to, “get any information that it considers relevant” in conducting the review (see s.424(1) of the Act). The information obtained was plainly relevant and the Tribunal adhered to its obligations pursuant to s.424A of the Act in putting the applicant upon notice of the significance of the information. Where the two s.424A letters deal with the DFAT information they plainly put the applicant upon notice of the fact that the information is capable of grounding a finding that the applicant has an existing right to enter and reside in Italy and that this may lead to a decision affirming the decision that Australia has no protection obligations to him. Moreover, the second letter raised squarely the possibility that the information as to the applicant’s entitlement to benefits in Italy may also lead to those conclusions.
15. True it is that the applicant made a series of assertions that his entitlement to reside in Italy was temporary and could be cancelled at any time. No basis was given for these assertions. It will be recalled that the applicant did not dispute that he had lived and worked in Italy for some nine years prior to his return to Albania in 2006. He did not contend that he had returned his card at the time of his departure from Albania to the Italian authorities. There was nothing put forward by him to suggest that his return to Albania in 2006 was regarded by the Italian authorities as him leaving Italy definitively. Rather the applicant’s response was to ventilate his apprehensions that his card might be cancelled and especially so if he was unable to secure employment. This evaluation of the DFAT information and the applicant’s response is part of the fact-finding responsibility of the Tribunal and is not something with which this Court should interfere unless a failure to consider relevant material or a reliance upon irrelevant material or an irrational consideration of such material can be demonstrated. That is not the case here. The Tribunal evaluated the detailed information received from DFAT together with the responses of the applicant (generalised as such responses were) and accepted the DFAT information. In my view, they were entitled to do so.
16. The second complaint was that the Tribunal fell into jurisdictional error by not informing him that the question of his ability to reside in Italy may be determinative of the application and that it did not ask him questions specifically addressed to the issue of the date on which his permit had issued, whether it had been stamped and whether he had definitively left Italy. In the written submission filed on behalf of the applicant this submission was originally couched in terms of a failure to afford natural justice but at the hearing before me was promoted as a failure to comply with s.424A of the Act.
17. Section 422B of the Act provides:
    • (1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
    • (2) Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
    • (3) In applying this Division, the Tribunal must act in a way that is fair and just.
18. The effect of that section as, as with s.357A of the Act as it applies in respect of reviews before the Migration Review Tribunal, is that the common law natural justice hearing rule is excluded. Notwithstanding the doubt expressed by Gray J in SBLF v Minister for Immigration & Citizenship [2008] FCA 1219 at [33], there is now binding Full Court authority to this effect (see Minister for Immigration & Multicultural Affairs v Lay Lat (2006) 151 FCR 214 and SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62).
19. As noted above, the s.424A letters squarely put the applicant upon notice of the way in which the DFAT information may be determinative of the application. The applicant had ample opportunity, for example, to adduce his own evidence as to the status of his certificate by way of information from the Italian government or otherwise. Instead he was content to rely upon his own assertions as to the susceptibility of his document to withdrawal by the Italian government either because he would be taken to have left Italy definitively in 2006 or because, if he returned to Italy, he would not be able to find work. He was entitled to ask the Tribunal to take into account his assertions. The Tribunal did consider them but chose to rely instead on the factual accuracy of the DFAT information. In so doing, the Tribunal did not fall into jurisdictional error.
20. I pause here to re-examine the contention just made that the Tribunal took the applicant’s assertions into account. What the Tribunal in fact says at CB 273 is this:
    • This information was put to the applicant for comment in two 424A letters dated 20 November 2007 and 2 January 2008. In response the applicant stated “I understand that my Italian permit will allow me and my family to return to Italy ... I am not a citizen of Italy. I am simply a temporary permit holder. My permit card could be cancelled at any time and would be likely to be cancelled if I was not employed ... it may be correct that I could return to Italy but, as I say, I would be highly anxious about that for the reasons that I have already stated. Further, because of the nature of my permit, unless I am able to sustain myself and my family by self employment my visa would be cancelled and I would be required to return to Albania”.
    • The applicant’s comments support the Tribunal’s finding that he has a right to return and reside in Italy although the Tribunal places no particular weight on the comment of the applicant rather choosing to rely on the factual content of the DFAT information. It does this because the statement in which the applicant made these comment (sic) was not signed and his adviser raised doubts as to his ability to give instructions.
21. The Tribunal could have expressed itself with more clarity in this passage. It is plain that it does take the applicant’s assertions into account but gives them no weight, instead relying upon the DFAT information. It says it does so because the applicant’s statement was not signed and the applicant’s advisor had raised issues (supported by medical reports) as to the applicant’s capacity to provide instructions. These matters are set out in the applicant’s advisor’s letter of 15 January 2008 set out at CB 257. That letter then encloses the applicant’s unsigned response to the s.424A letters which includes his assertions in relation to the Italian document.
22. Pursuant to s.420(2)(a) of the Act, the Tribunal is not bound by the rules of evidence. Evidence does not need to be sworn. There is no specific requirement that statements relied upon have to be signed. Ordinarily, one would expect a statement to be signed before an invitation is extended to rely upon it but the Act is silent as to any specific procedural requirements that need to be fulfilled before a statement can be relied upon. The Tribunal was certainly not entitled to disregard the applicant’s written response to the s.424A letters. This was the error (or one of the errors) which Gray J found the Tribunal had fallen into in SBLF v Minister for Immigration & Citizenship (supra). In that case, the Tribunal had disregarded an unsigned statement of the applicant’s mother notwithstanding that the applicant’s solicitor had explained that the statement had been obtained from her with the assistance of an interpreter but had yet to be checked or signed by her. The Tribunal in that case said, as set out at [16] of His Honour’s decision:
    • I have not placed any weight when making this decision on the unsigned statement purporting to be a statement from the applicant’s mother as at the time of making this decision this statement has not been signed by the applicant’s mother and cannot be taken to be a true indication of her views or opinions.
23. Gray J found at [36]:
    • If the solicitor’s statement as to the way in which the information contained in the statement was obtained was to be accepted, then subject to any appropriate reservations about whether the statement was accurate in every single respect, it had probative value even in its unsigned form.
24. And at [37] His Honour said:
    • There is no ground for the Tribunal to reject evidence in this form out of hand. It must consider such evidence as it receives and give it such weight as it believes that the evidence merits.
25. In that case His Honour was plainly of the view that when the Tribunal spoke of giving the unsworn statement no weight he took that to mean that the Tribunal did not give consideration as to whether the unsworn document should be given any weight.
26. That is far removed from the circumstances here. Firstly, the applicant’s advisor squarely raises issues as to the applicant’s capacity to give instructions. Secondly, the response is plainly evaluated because it is set out in the findings with particularity. Thirdly, the response had to be evaluated against the background of the specific information provided by DFAT as set forth in the two s.424A letters. I do not think it is fair to characterise the Tribunal as indicating that the response is rejected out of hand or not considered at all. Rather, when it is weighed with the DFAT information and when it is borne in mind that it is unsigned and that the advisor has doubts as to whether the applicant has a capacity to give instructions, it is given no weight. The Tribunal did not fall into jurisdictional error in proceeding in this way.
27. Before leaving this second ground I should note the contention that the Tribunal fell into jurisdictional error in not asking the applicant specific questions as to whether the Italian permit document had been stamped within a particular period of its issue. This requirement for stamping within a particular period is said to have arisen from the DFAT material itself but I am unable to discern in the DFAT material such a contention. In any event, the two s.424A letters plainly put the applicant on notice of the significance of this information. If the applicant contended that absence of stamping or that the departure from Italy and return to Albania in 2006 vitiated the worth of the document, he had ample opportunity to adduce evidence that supported such contentions but did not do so.
28. The matters that I have just dealt with formed part of the third ground of review alleged and are rejected for the same reasons. But the third ground contained a separate contention related to the error which is contained at the commencement of the Tribunal’s Findings and Reasons at CB 269:
    • In order to be a refugee under the Convention, it is necessary for the applicant to be outside of his country of nationality and for him to hold a well-founded fear of persecution for at least one of the five grounds listed in the Convention. The applicant claims to be a citizen of Albania and of no other country. Although he and his family travelled to Australia on false passports purporting to be citizens of Italy the Tribunal is satisfied, based on the copies of the their (sic) Albanian passports which were subsequently provided to the Department and the Tribunal that they are citizens of Italy. Therefore for the purposes of the Convention the Tribunal has assessed the applicant’s claims against Albania as his country of nationality.
29. Patently, the applicant and his wife are not citizens of Italy as contended in the penultimate sentence of that paragraph. That the statement is made in error is emphasised by the paragraph that immediately follows:
    • However before the Tribunal makes findings on the applicant’s claims of religious persecution against his country of nationality, Albania, it is open for it to first consider whether or not Australia is taken not to have protection obligations to the applicant by reason of the operation of s.36(3).
30. Considerable reliance was placed by counsel for the applicant upon the decision of Greenwood J in the Federal Court of SZIFI v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCA 63. There the Tribunal, in evaluating a claim for a protection visa based upon fears of persecution alleged by the applicant who was a national of Pakistan if he was to return to Pakistan, made two fundamentally erroneous statements in its Findings and Reasons. The first was that the applicant had claimed to be a national of Indonesia and the second was that he was fearful of a real chance of persecution should he return to the People’s Republic of China (“PRC”). Not only was he not an Indonesian national, he of course did not hold any fears or any intentions in respect of a return to the PRC.
31. His Honour regarded the errors as jurisdictional. He said at [33] of his judgment:
    • Errors which misdescribe an applicant as an Indonesian and reach conclusionary observations that the Tribunal cannot be satisfied that the applicant holds a well-founded fear of persecution should he return to a country which is identified as other than the country of nationality, suggest that the deliberative process going to the merits of the Appellant’s case was infused with notions which are erroneous and thus irrelevant to the Appellant’s case and suggest that the Tribunal member may have had in mind facts, circumstances and considerations referable to other cases. An inference is open either having regard to the workload before the Tribunal or perhaps because of the proximity of determination of other cases involving nationals from Indonesia and the People’s Republic of China that the required immediacy of focus and deliberation of the specific claims of the Appellant and the justice and merits of the case were influenced by erroneous considerations.
32. He also said at [45]:
    • The references to these matters are neither merely typographical errors nor errors of fact at the margin of the Tribunal’s review. Since the errors go to the nationality of the Appellant and the source of nation state conduct or nation state tolerance of conduct by others giving rise to a claim of a well-founded fear of persecution, the errors affect the exercise of the power.
33. Here, in my view, the error was plainly typographical. In publishing its Findings and Reasons the Tribunal neglected to note that the word “not” had not been placed in front of the word “citizens” in the penultimate sentence of the first paragraph of the “Findings and Reasons”. The decision makes it clear throughout that the applicants are nationals of Albania but have a right to enter and reside Italy. That is the whole subject matter of the most important discussion which occurs in the Tribunal’s decision. It is a slip which runs against the entire tide of the Tribunal’s reasoning and should be disregarded. It does not constitute a jurisdictional error.
34. For the foregoing reasons, the Application for Review is refused.

I certify that the preceding 34Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !thirty-fourthirty-four (34) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Associate: Ms D. Ryder

Date: 23 January 2009