Adrian Dan v Minister for Immigration & Multicultural Affairs [1998] FCA 20 (23 January 1998)

FEDERAL COURT OF AUSTRALIA

IMMIGRATION - refugee status - protection visa - refusal - application for judicial review - whether any permissible ground for review - ship's deserter from Romania - relevance of Romanian Penal Code - whether Tribunal failed to take certain Articles of the Romanian Penal Code into account - whether Tribunal failed to observe procedures - whether substantial justice accorded.

Migration Act 1958 (Cth), ss 5, 31, 36, 45, 65, 420(2)(b), 466(3)(e), 476, 476(1)(a), 476(1)(d)

Migration Regulations, regs 2.03, 2.04, 2.05

Romanian Penal Code, Articles 251 and 253

Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1996) 169 CLR 379 referred to

Commissioner of Taxation v Brixius (1987) 16 FCR 359 followed

Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621 referred to

Minister for Immigration and Ethnic Affairs v Respondent A (1995) 57 FCR 309 referred to

Sloan v Minister for Immigration, Local Government and Ethnic Affairs [1992] FCA 414; (1992) 37 FCR 429 followed

ADRIAN DAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

WAG 62 of 1997

R D NICHOLSON J

PERTH

23 JANUARY 1998

GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIAN DISTRICT REGISTRY	WAG 62 of 1997

BETWEEN:	ADRIAN DAN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	r d nicholson j
DATE:	23 JANUARY 1998
PLACE:	perth

THE COURT ORDERS THAT:

. The application be dismissed.

. The applicant pay the respondent's costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIAN DISTRICT REGISTRY	WAG 62 of 1997

BETWEEN:	ADRIAN DAN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	r d nicholson j
DATE:	23 JANUARY 1998
PLACE:	perth

REASONS FOR JUDGMENT

HIS HONOUR: The applicant seeks review of a decision by the Refugee Review Tribunal ("the Tribunal") made on 7 May 1997 whereby the Tribunal decided it was not satisfied the applicant is a refugee and accordingly affirmed the decision not to grant to him a Protection Visa. The decision so affirmed was made on 21 February 1997 by a delegate of the respondent under the Migration Act 1958 (Cth) ("the Act") and was to the effect the applicant was "not a person to whom Australia has protection obligations under the Refugees Convention and therefore does not meet a prescribed criterion under clause 866.221 of the Migration Regulations for the grant of a Protection Visa."

Tribunal's reasons

The Tribunal described the applicant and his circumstances as follows:

"The applicant is in his late twenties and is a national of Romania. He is a seaman by occupation. His home town is the city of Galati. He arrived in Australia at the beginning of June 1996 on a Greek chartered ship on which he was a crewman and stayed behind when it left Australia. He was travelling on a Romanian passport issued in late 1995. He spent some time in detention until being released. The applicant applied to the Department of immigration and Multicultural Affairs (the Department) for a protection visa on 21 June 1996.

It described his claims and evidence in the following terms:

"Prior to leaving Romania in April 1996 the applicant spent six months from November 1995 to April 1996 living there before joining his ship. From 1992 he had spent only about eight months in total in the country. The rest of the time he was working on ships.

The Panamanian registered ship which he left in Australia was chartered by a Greek shipping company; his contract was with this company. It had predominantly Greek officers and a Romanian crew.

Conditions on board the ship are bad and often unsafe. The applicant says he had been a member of the international maritime union but if he complains he will be blacklisted. In the hearing he acknowledged that he had not done so. He does say that his name will be on the agent's black list because he jumped ship and therefore he will not get any more employment. He said in the hearing that as a Romanian seaman in the past he had to wait for a long period to get work with the Greek ship. When he left the ship the Greek company would have informed the Romanian maritime authorities. In his application the applicant says that there was a dispute on his ship which he expected would result in higher wages and better conditions but would lead when the ship returned to Romania to its crew being placed on a black list and not being permitted to serve on ships again.

In the application he stated that by taking part in an economic mutiny against the interests of the Romanian state he could face imprisonment under appalling conditions. This would be because he did not fulfil his contract. As a `ships' deserter he will be detained and questioned on return.

He spoke about Romanian deportees from certain European countries being taken away and treated differently when they arrived back in Romania.

In his application he claims to have spoken out publicly against the Romanian regime only to be advised by the authorities that such behaviour was a poor example to others and could seriously affect his future employment prospects. This claim was not repeated at interview or hearing nor mentioned as a factor why the applicant felt he would have difficulties if he returned to Romania.

In the interview he said that he wanted to leave Romania because existence there is awful. Living conditions have not improved since the fall of the Communists. The Communists are still in control. At the beginning of 1996, he had already inquired about immigrating to New Zealand.

He says that his mother had received a phone call from (sic) in August 1996 asking for the applicant but the person did not who say it was (sic). The applicant thinks that it cold be someone from the SRI (the Romanian Information Service-the principal Romanian intelligence service). She was also visited by two persons in October or November 1996 asking about his whereabouts. He thought it would have been someone from the intelligence Service which would mean that he would have problems if he were to return to Romania."

The Tribunal concluded the applicant asserted a claim on grounds of persecution for reasons of political opinion or membership of a particular social group but that the facts disclosed no Convention nexus to his claims. It said that "what he fears will take place should he return to Romania is purely a personal matter and bears no relationship to the Convention".

In relation to the consequences in the law of Romania to the applicant having jumped ship the Tribunal said:

"Even if I were to accept that a person who jumped ship could face certain civil consequences for his actions, he would not face any criminal or penal sanctions as a result. The Department of Foreign Affairs and Trade has stated the following on this subject:

`...ship-jumping [from a non-military vessel] is not a offence under the Romanian penal code. It could be a ground for a civil action if the captain or owner of the ship elected to initiate proceedings for breach of contract...there is no particular pattern of treatment in respect of ship jumpers who return to Romania. It would depend on the circumstances of the case, including the factors [referred to above]...there is no legal bar to state-owned or any other shipowners employing a person who has jumped ship...'

Comment. Our impression from discussing the applicant's claims [a combination of ship jumping and breaches of the penal code] with UNHCR and a private lawyer is that he would be unlikely to face consequences for the conduct he describes significantly different from those which would apply in most other countries. Statements critical of working conditions may affect his employment prospects with his previous employers but they are not legally a bar to his re-employment by them or any other employer...(DFAT cable O.BG63510 of 26.06.96).

There can be no basis for an argument that his act of jumping ship has consequences which are Convention-related or which would entail persecution at a Convention standard, nor that he would through this act be imputed with a political opinion by the Romanian authorities leading to persecution. Whatever may have been the position under the Communist regime prior to 1990, there is simply no support for any contention that ship jumping is an act of desertion, treason or in some respect is treated as a political statement with Convention implications."

With regard to the interest of the Romanian Intelligence Service in him, the Tribunal concluded:

"On the evidence before me, I am unable to find who the people were who rang his mother or paid a visit to her inquiring about his whereabouts; they did not disclose their identity and may well have been from the state shipping authority or another body. I can find no grounds for his assertion that they were SRI operatives as there is no reason on the material he has presented why this or a similar security organisation would be interested in him; he has not done anything wrong or illegal or against the interests of the Romanian state to arouse their interest."

Concerning his claim the Government in Romania remained Communist, the Tribunal concluded:

"Moreover, the applicant has drawn no link between his assertion that even the present recently-elected government is Communist including President Constantinescu and a fear of persecution on return. In any event I can find no support in any of the country material for the proposition that the (sic) the Democratic Convention of Romania, the centre-right alliance which won the legislative elections and whose candidate Emil Constantinescu triumphed in the presidential elections in November 1996, is anything other than anti-Communist, pluralistic and pro-western (see for example Romania starts to rebuild, the Economist, May 3rd 1997)"

The conclusion of the Tribunal was as follows:

"No (sic) only do I not see the applicant facing any harm of a persecutory standard but if he encounters difficulties on account of his ship-jumping and thus his failure to fulfil the terms of his contract with the ship charterers then this is purely a civil matter which has no Convention significance for the reasons I have already expressed. The risk of harm which the applicant perceives he will face should he return to Romania is not by reason of his political opinion, his membership of a particular social group nor is it for any other Convention ground. The applicant's claims are not Convention related. Consequently he does not face a real chance of persecution for a Convention reason. He is not a refugee or a person to whom Australia has protection obligations."

Grounds of review

In the application seeking the order of review the applicant claimed the Tribunal was in error because it had failed to take into consideration the provisions of the Romanian Penal Code ("the Penal Code") which provided severe penalties to be accorded to ship deserters with a consequent inability for the applicant to be employed in his profession following his return to Romania.

At the hearing the applicant sought to add the additional ground that he had been denied substantial justice before the Tribunal because the hearing had taken place without him being provided with copies of a certain cable, some security documents and the article in "The Economist".

The hearing before me proceeded on the basis the additional ground formed part of the application.

Statutory framework

Section 45 of the Act requires a non-citizen wanting a visa to apply for a visa of a particular class. Provision is made for classes of visas in s 31 of the Act which provides that the regulations may prescribe criteria for a visa or visas of a specified class. Section 40 authorises the regulations to provide that such visas may only be granted in specified circumstances. Section 65 of the Act requires the Minister (or a delegate of the Minister appointed under s 496 of the Act) to grant a visa if satisfied the criteria prescribed by the Act or the regulations have been met.

Section 36 of the Act provides for a class of visas known as a protection visa. The criterion for that visa is "the applicant for the visa is a non-citizen in Australia whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol'. These terms are defined by s 5 of the Act as follows:

" `Refugees Convention' means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951

`Refugees Protocol' means the Protocol relating to the Status of Refugees done at New York on 31 January 1967"

Migration Regulations 2.03, 2.04 and 2.05 provide the criteria applicable to classes of visa, the circumstances in which visas may be granted and the conditions applicable to such visas are as set out in sch 2 to the Regulations. In that schedule item 866 prescribes criteria for protection visas. Item 866.211 prescribes as a criterion that an applicant claims to be a person to whom Australia has protection obligations under the Refugees Convention and makes specific claims under that Convention or claims to be a member of the same family unit as a person making such claims and applying for a protection visa. Item 866.111 provides that `Refugees Convention' means the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.

Article 1A(2) of the Refugees Convention (`the Convention') as amended by the Protocol defines `refugee' 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, is unable or, owing to such fear, is unwilling to return to it."

In its reasons the Tribunal referred to the five grounds of persecution specified in this Article as "Convention reasons". It found the applicant met the requirement of being outside his country of nationality. It set out its understanding of the requirements of the phrase "well-founded fear of being persecuted" and said the applicant must satisfy the Convention definition upon the facts as they exist when the decision is made.

Romanian Penal Code

The applicant put this ground in the following ways.

Firstly, he said the Department of Foreign Affairs cable upon which the Tribunal had placed reliance should not have been relied upon because its true source was information from the Romanian Government which could not be trusted.

Secondly, he said the Penal Code had been amended in 1968, 1978 and 1982 and the same Penal Code had remained in force since 1982. His submission was that Articles 251 and 253 of that Code showed the position to be different than that found by the Tribunal. Contrary to the Tribunal's finding, examination of those Articles would show that ship jumping was an offence.

The applicant claimed to hold a copy of Articles 251 and 253 of the Penal Code which he had translated. He said he had referred the Tribunal to these Articles but had not been asked for a copy of them.

The applicant had previously been provided with the opportunity of providing a supporting affidavit by 26 November 1997 deposing as to these matters and annexing the Articles of the Penal Code on which he sought to rely. Although he had failed to take advantage of that opportunity, the Court, given that the applicant is unrepresented although articulate in the English language, thought it just the applicant be provided with a further opportunity given the centrality of these Articles to the principal ground in his application for review. The resulting affidavit of the applicant exhibited the uncertified English translation of the Articles (to which no objection has been taken) and as is as follows:

"ART 251 - The Disclosure of Some Secrets Regarding the Public Interest

The disclosure of the country secrets, if it doesn't fall under Art 169, as well as the disclosure of facts or information which may not be considered secrets of the (sic) national importance, are not due to be published if the action is of such a nature that it will affect the public interest it is punishable with a prison sentence from 6 months to 5 years.

ART 253 - The Refusal to Return Back to the Country

The action of a Romanian citizen who while undertaking a state mission or in the public interest in a foreign country, does not return back at the end of the mission is punishable with a prison sentence from 1 to 7 years. The cancellation of some of his rights and a partial confiscation of his assets.

The same sentence is applicable to the Romanian citizen who has access to strict secret of a major importance, information, facts and documents and after going to a foreign country does not return back at the end of the term for which he was granted the visa."

The applicant's submission that these Articles state penalties for those convicted of jumping ship is not made out on examination of the text of the Articles. The Articles do not therefore assist his case in any way and, in particular, were not a relevant consideration.

Even if the Articles applied to the applicant, there are two reasons why they would not assist his case in law. The first is that insofar as it can be said the Articles relied upon provide some criminal penalty for nationals who leave the country and stay outside the period of their visa, the penalty so arising is a general one for failure to return and is not directed to the applicant as a national. A similar issue arose before Carr J in Su Wen Jian v The Minister for Immigration and Ethnic Affairs (Federal Court of Australia, 24 April 1996, unreported). There it was submitted that Chinese laws applying sanctions against Chinese nationals for departure from China without permission, did so on the basis of nationality and thereby negated what was described as a fundamental right to leave and return to one's country of nationality so that there was persecution because of nationality. Carr J rejected the contention on three grounds. Firstly, there was no evidence from which to infer those who are not Chinese nationals are exempt from liability under the law. That cannot be the case in relation to Articles 251 and 253. Secondly, Carr J held that as a matter of law there is implicit in the word "persecuted" an idea of selective harassment: Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1996) 169 CLR 379 at 429. Thirdly, he referred to the observation by the Full Court in Minister for Immigration and Ethnic Affairs v Respondent A (1995) 57 FCR 309 at 319:

"Since a person must establish well-founded fear of persecution for certain specified reasons in order to be refugee within the meaning of the Convention, it follows that not all persons at risk of persecution are refugees. And that must be so even if the persecution is harsh and totally repugnant to the fundamental values of our society and the international community. For example, a country might have laws of general application which punish severely, perhaps even with the death penalty, conduct which would not be criminal at all in Australia. The enforcement of such laws would doubtless be persecution, but without more it would not be persecution for one of the reasons stated in the Convention."

The correctness of this view was not questioned on appeal to the High Court (see `Applicant A' & Anor v Minister for Immigration and Ethnic Affairs & Anor [1997] HCA 4; (1997) 142 ALR 331). It was referred to by Dawson J (of the majority) at 344 without expression of any disagreement.

It follows that even though the Articles apply on the basis of nationality, imprisonment or fines for their contravention would not amount to persecution for reasons of nationality within the meaning of the Convention. There is no other Convention reason arguably applicable.

Secondly, the applicant's right to seek review arises pursuant to s 476 of the Act. It is apparent from subs 476(1)(d) and 466(3)(e) that failure to take into account a relevant consideration in the exercise of the power to grant a Protection visa is not a permissible ground of review. The law does not therefore permit him to rely on the argument there was a failure to take into account the Articles as a relevant consideration.

The applicant contends there is a further possibility - namely, that the application brought by the applicant may fall for consideration pursuant to s 476(1)(a) on the ground procedures which were required by the Act to be observed in connection with the making of the decision were not observed when the Tribunal failed to take into account a consideration relevantly before it. That possibility is supported by reference to the majority judgments of Davies and Burchett JJ in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621 and by reference to s 420 of the Act. Whitlam J dissented from that view, relying instead on that point on the opinion of Lindgren J in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (Federal Court of Australia, 6 May 1997, unreported). The decision of the Full Court in Eshetu is subject to an application for special leave to appeal to the High Court. Even if argument based on Eshetu is open to the applicant, it cannot assist him because Articles 251 and 253 are not relevant considerations to his circumstances. There is no evidence he was involved in disclosure of national secrets, undertaking a state mission or had access to a strict secret within the terms of those Articles.

This position is reached on the assumption the Articles were part of Romanian law at the time of the Tribunal's decision but there is no evidence brought by the applicant to that effect.

In my opinion there is therefore no ground in law on which the decision to refuse the applicant a Protection visa can be reviewed in relation to the failure to take into account provisions of the Penal Code.

The applicant's contention the information on which the Tribunal acted was coloured as a consequence of having been received from the Romanian Government is met by the terms of the cable itself. As stated in the reasons of the Tribunal, the cable identifies the Department of Foreign Affairs' sources of information as the United Nations Commission on Human Rights and private lawyers. The cable commences with the words "We took up issues raised...with interlocutors in the UNHCR and a Bucharest Lawyer".

The applicant also sought to support his case by reference to a decision of the Tribunal in proceeding V96/04948 (30 September 1996). That was not a case which involved consideration of the provisions of the Penal Code. It was one in which an applicant from Romania was found to be a refugee based on application of the requirements of the Convention and Protocol to his personal circumstances. It does not assist the applicant's claim on this or other grounds.

Denial of substantial justice

Paragraph 420(2)(b) of the Act requires the Tribunal in reviewing a decision to act "according to substantial justice". Pursuant to par 476(1)(a) of the Act, as has been seen, a ground of review is that procedures required by the Act were not observed. However, that is subject to subs (2) which provides it is not a ground of review that a breach of the rules of natural justice occurred in connection with making of the decision. I proceed on the basis this latter provision does not exclude as a matter of law or in the particular circumstances of this matter the availability of the ground of review under par 476(1)(a).

(a) Availability of cable

The applicant claims he only received a copy of the cable which was relied upon by the Tribunal in relation to ship deserters when he received the affidavit filed to support the respondent's case on the hearing of this appeal. He accepted he had been made aware of the effect of the cable in a Departmental interview and before the Tribunal but his claim was he had not read it earlier.

So far as the non-provision of the cable to the applicant did not bring to his attention that Articles 251 and 253 were not addressed in it, that position has been remedied by the opportunity which the applicant has had before this Court on the appeal to bring affidavit evidence relating to those Articles. Those Articles could not have assisted the applicant. There was accordingly no denial of substantial justice in relation to the cable.

In the fourth question referred to in the cable it was asked whether it was plausible that a person convicted of crimes pursuant to Articles 208, 209 and 293 of the Penal Code and placed on probation would be re-employed on a State owned ship. The response was there was no legal bar to that occurring but that "it is for consideration whether a ship owner would judge a person convicted under those Articles, and known to be a ship jumper, as a good employment risk". In relation to this the applicant submitted he would not be allowed to work if he returned to Romania but he accepted he could not prove his case. His submissions in this respect were unsupported by affidavit evidence and are therefore not made out.

The applicant also claimed the Tribunal had failed to give sufficient weight to his evidence that as a ship's deserter he would be detained and questioned on return; he had seen deportees from other European countries being taken away and being treated differently; and that his mother had received a phone call and visit by two persons whom he suspected were from the Intelligence Service. It is apparent from the Tribunal's reasons these matters were taken into account. The fact the Tribunal gave more weight to the information from the Department of Foreign Affairs and Trade and gave less weight to the applicant's assertions as to the consequences he would face is not a basis for any of the grounds of review set out in s 476(1) of the Act. The weight to be given to any particular evidence is a matter solely in the discretion of the decision-maker: Sloan v Minister for Immigration, Local Government and Ethnic Affairs [1992] FCA 414; (1992) 37 FCR 429 at 440; Commissioner of Taxation v Brixius (1987) 16 FCR 359 at 366.

(b) Article in The Economist

As appears from the Tribunal's reasons, it relied upon the article in The Economist to support its conclusion that Romania was anti-Communist, pluralistic and pro-western. The applicant submits this is inconsistent with the knowledge which the Tribunal had from decision V96/04948, the same Tribunal member constituting that Tribunal. There the Tribunal addressed evidence to suggest political activities of former Securitate members continued, albeit by operating through different structures with different names. Additionally, the evidence there considered stated that the police were still organised along military lines and that the SRI, referred to in the reasons of the Tribunal above, had been tainted by links to its predecessor, the Securitate.

The applicant also asserted examination of the article in The Economist shows it does not support the proposition for which the Tribunal relied on it.

There are four answers to this claim of the applicant. The first is he brings no evidence as to the contents of the article in The Economist upon which the latter claim can be judged other than stating he has read it. Secondly, the reliance which the Tribunal expressed was solely in relationship to a link which the applicant sought to draw before the Tribunal between an assertion by him between the present recently elected Government of Romania, including the President, and, his fear of persecution. The Tribunal's conclusion in the present proceeding that the Government was anti-Communist, pluralistic and pro-western is not inconsistent with the reliance by the Tribunal in proceeding V96/04948 on the guises in which security forces presently appear in Romania. Thirdly, the evidence in matter V96/04948 was not evidence in the present proceeding before the Tribunal and no reliance was placed upon it. It was not the case that there was before the Tribunal in this proceeding any documents relating to the security situation in Romania. Fourthly, the finding of the Tribunal on the point to which The Economist article was directed was peripheral to the substance of the application. Accordingly, it cannot be concluded the Tribunal failed to act according to substantial justice in the way in which it referred to and relied upon the article in The Economist.

Conclusion

For these reasons I conclude the applicant's case does not establish any permissible ground of review and the application should be dismissed.

I certify that this and the preceding twelve (12) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice R D NICHOLSON

Associate:

Dated: 23 January 1998

Counsel for the Applicant:	In person
Solicitor for the Applicant:	None on record
Counsel for the Respondent:	P MacLiver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	4 December 1997
Date of Judgment:	23 January 1998