QAAE of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia (Full Court)|2003-03-17|Before: Cooper J, Dowsett JJ

INTRODUCTION 1 This is an appeal from a decision of Cooper J, declining to review a decision of the Refugee Review Tribunal (the "Tribunal"). The appellant sought review of three alleged decisions, namely: ® decision of the respondent not to grant a protection visa; ® decision of the respondent not to grant a visa under the "Stateless Persons Convention"; and ® decision of the respondent not to grant working rights for the period of judicial review. 2 The grounds of review were said to be: (a) the Department of Immigration and Multicultural and Indigenous Affairs (the "Department") made a decision on 18 April 2000 relying on a document described as "CX 40319", which is said to be fraudulent; (b) the Department rejected the grant of a visa under the "Convention for Stateless Persons"; (c) the Minister's decision not to grant working rights for the period of judicial review breaches the International Convention on Economic, Social and Cultural Rights; (d) The decision of the Tribunal not to grant a protection visa was based in bad faith. 3 It is not clear whether, in ground (a), it was the decision or the document which was said to be fraudulent. The Tribunal found that the document was not authentic. The appellant complained about that finding. 4 There are at least two conventions (the "Stateless Persons Conventions") concerning stateless persons. They are the "1961 Convention on the Reduction of Statelessness" and the "1954 Convention relating to the Status of Stateless Persons". Neither has been incorporated into Australian municipal law. There was no evidence before his Honour of any application by the appellant for a visa under the so-called "Convention for Stateless Persons", or at least of any such application made prior to the application to this Court for review, which application was filed on 10 May 2002. There was also no evidence that the appellant had, prior to that date, sought permission to work. A delegate of the Minister had, on 18 April 2000, declined an application for a protection visa under the Migration Act (1958) (Cth) (the "Act"). That decision was confirmed by the Tribunal. The application proceeded before Cooper J as an application to review the Tribunal's decision. The hearing and determination of the matter at first instance preceded publication of the recent decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 and depended upon the decision of the Full Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228.

BEFORE THE TRIBUNAL 5 The appellant was born in Moldova whilst it was still part of the Union of Soviet Socialist Republics. He claims that he left Moldova for the Ukraine on 1 July 1992 and remained there until he came to Australia. In March, 1996, he attended at the Moldovan Embassy in Kiev and there renounced Moldovan citizenship. He applied for Ukranian citizenship but this had not been granted by the time he left for Australia. He claimed to fear persecution in Moldova because he served with the Dniester militia in secessionist fighting against Moldovan government forces. He served for two months in May-June 1992, during which time he was captured and beaten by the Moldovan police. He said that he was the subject of outstanding criminal charges arising out of such service. He said that if he returned to Moldova, he would be imprisoned. The Tribunal addressed the question of whether the appellant was 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, … 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." 6 The Tribunal accepted that the appellant was born in Moldova, was a national of that country until 1996 and is now a stateless person. In support of his claim to a protection visa, the appellant provided certain documents, of which the Tribunal said: "16. The applicant provided a document dated 8 October 1992, which the applicant said was obtained by his mother, who pretended to the police not to know the applicant's whereabouts in order to obtain information about the confession the applicant had signed. That document states (in translation) that on 19 August 1992, the public prosecutor of the city of Bendery instituted criminal charges against the applicant related to his activities in the Dniester militia. The applicant provided a second document, dated 15 October 1992, which stated (in translation) that the investigation into the crimes for which the applicant was charged had been suspended because his whereabouts could not be established. 17. On 3 April 2001 I directed that these documents be sent to the Document Examination Unit (DEU) of the Department for an opinion as to their authenticity. On 19 July 2001 the DEU provided an opinion that, based on information obtained from overseas sources, the documents were fraudulent. Specifically, DEU advised that inquiries were made of the agencies referred to in the documents, which revealed that the documents did not bear a stamp of the police office at the top, as required, that there [sic] were signed by an individual who is a 'search investigator' rather than an 'investigator', as required, and that the signatures on the documents were not that of the officer named in the documents. I put this information, in summary, in a letter to the applicant for his response, and again at the hearing. 18. In written submissions and at the hearing, the applicant denied that the documents are fraudulent, stated that the lack of required formalities did not mean that they are fraudulent, and stated that because he uses three different signatures, there is no significance in the fact that the signatures on the documents are not those of the officer named. 19. At the hearing the applicant stated that he did not agree with the DEU report and gave as an example his 'internal passport' (a document, very like a passport, which was in use by the former USSR and some time after the independence of the former Soviets such as Moldova), which he said lacked a seal on his photograph and contains another anomaly in the Moldovan stamp in the passport, yet this document was authentic. I put to the applicant that there is a difference between an authentic document which contains a mistake in the formalities, and a document deliberately signed as authentic but where the signature is not that of the person named as signatory. The applicant then stated that he has three different signatures on official documents (his internal passport, his NSW driver's licence, and his application to the Tribunal) but that each signature was nevertheless his own. I put to the applicant that DEU's inquiries revealed that the signatures in the two documents were specifically checked and found not to be that of the officer named. The applicant stated that he was unable to explain the conclusions of DEU. He stated that he wanted to obtain another opinion from a lawyer in Russia about police documents from Moldova, but when I pointed out that any such general opinion would not resolve the problems with his particular documents, especially as regards the signatures, the applicant did not request time to obtain such an opinion." 7 The Tribunal relevantly found: "48. I do not accept the applicant's claim to be the subject of criminal proceedings in Moldova as a consequence of his participation in the Dniester conflict in 1992. I accept the conclusion of DEU that the two documents which the applicant provided to support the claim that he has outstanding criminal proceedings awaiting him in Moldova are not genuine documents. I am not persuaded to disregard that conclusion on the basis of the applicant's explanations, which I have set out above and which I reject, of how such documents could lack the features of genuine documents yet still be genuine. In particular, I accept the information provided by DEU from inquiries made with the Moldovan agencies concerned that the purported signature of the officer on those documents is not that of the officer identified on the documents, and I accept the conclusion by DEU that the documents are fraudulent. 49. Accordingly, I reject as a fabrication the applicant's claim that he was charged with treason and other crimes as a result of participation in the Dniester conflict. I reject as a fabrication the applicant's claim that if he were to return to Moldova he would suffer persecution as a result of an imputed political opinion in the course of a prosecution for treason. 50. It is possible that the applicant was a participant in the Dniester conflict in 1992, on the part of the Dniester secessionists. Given that I am satisfied that the applicant has fabricated the evidence supporting his claim to have been the subject of criminal charges for any such participation, I decline to make any firm finding on whether he was involved in the conflict in any capacity. For the sake of completeness, however, I am satisfied by the independent information which I have set out above that all participants in that conflict, who were fighting on the Dniester side, were pardoned under a general amnesty announced by the Moldovan government in July 1995, some three years after the applicant's claimed participation. Even if the applicant had been involved in fighting against Moldova in 1992, he would not now be at any risk of harm for that involvement due to the general amnesty implemented. I have rejected the applicant's claim to have been charged with treason and accordingly any ambivalence which may arise in the independent information concerning participants in the conflict who were charged with treason is irrelevant to the applicant's claims." 8 The Tribunal concluded that the appellant was not outside his country of former habitual residence (whether Moldova or Ukraine) as a result of Convention-related persecution or fear thereof. It also held that statelessness was not itself sufficient to establish refugee status under the Act, relying upon the decision of the Full Court in Minister for Immigration and Multicultural Affairs v Savvin & Ors (2000) 98 FCR 168.

before cooper j 9 The appellant asserted that a staff member of the Tribunal had told him that its practice was to send suspect documents to the relevant Australian Embassy for assessment. He challenged the Tribunal's rejection of his documents, alleging that as Australia did not have an embassy in Moldova, such decision could not have been made in good faith or be valid. This argument overlooked the possibility that another mission may look after Australian interests in Moldova or that the Tribunal had consulted another source. It had not claimed to have consulted the Australian Embassy in Moldova. Secondly, the appellant asserted that bad faith was demonstrated by the Tribunal's conclusion that he enjoyed the benefit of an amnesty concerning his conduct whilst serving with the Dniester militia. He claimed that the Tribunal had not set out in its reasons some aspects of the material upon which it relied in reaching that conclusion. However the appellant did not demonstrate any misuse or misunderstanding of such material by the Tribunal. Cooper J rejected both submissions. There can be no challenge to the correctness of that conclusion. There was simply no basis for suggesting that the Tribunal had acted other than in good faith.

the appeal 10 The appellant now attacks his Honour's decision on the following grounds: "(1) The respondent did not provide to the Court a copy of the full file in my case; (2) The Judge did not accept any arguments in regards of my statelessness and 'Stateless Convention'; (3) There is a wrong interpretation of the case: Theo v Minister for Immigration." [This is presumably a reference to Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273]. 11 The appellant can only succeed at this stage if he can show error by Cooper J. With all respect to the appellant, his grounds of appeal were not clearly enunciated in the course of the hearing. Although he relied upon the consequences of his service with the Dniester militia as justifying his claim to refugee status, he also seemed to assert an entitlement to be treated as a refugee simply because he is a stateless person. At times it seemed that he was advancing this argument in reliance upon the 1951 Convention relating to the Status of Refugees (the "Refugees Convention") and the 1967 Protocol relating to the Status of Refugees (the "Protocol"), in so far as those documents apply to stateless persons and have been incorporated into Australian municipal law At other times he seemed to rely upon the provisions of what he referred to as the "Convention for Stateless Persons", which we take to be a reference to either or both of the Stateless Persons Conventions. 12 The Tribunal applied the relevant provisions of the Refugees Convention and the Protocol, considering the appellant's claim to refugee status based upon his fear of persecution motivated by his previous military activities. That claim was rejected. The allegation that this decision was made in bad faith was without foundation. His Honour rightly rejected it. Before us, the appellant sought to revisit the factual questions of whether he was entitled to return to Moldova and whether the amnesty protected him. Those matters were resolved against him by the Tribunal. We can see no basis for revisiting such issues, even having regard to the grounds of review discussed in Plaintiff S157/2002. It may be that the appellant was advancing an alternative claim, (based upon the approach to the Refugees Convention which was rejected by the Full Court in Savvin. If so, then that decision is against him. We see no reason to revisit it, given that the appellant made no submissions concerning its correctness. As to any claim pursuant to the provisions of the Stateless Persons Conventions, we were referred to no particular provision which might be of assistance to the appellant. As we have observed, those conventions have not been incorporated into Australian municipal law. We can see no basis for invoking them in support of his case. 13 The appellant may have been seeking to advance arguments of want of procedural fairness. If so, he did not demonstrate any matter which was deserving of further consideration. That his Honour or the Tribunal did not accept the appellant's arguments cannot, itself, be a ground of review or appeal. Nor can the appellant derive any assistance from the decision in Teoh, given that he has not identified any particular provision of the Stateless Persons Conventions which may have created an expectation as to the way in which his application would be treated. 14 As to the alleged failure of the Department to put its entire file before Cooper J, it seems that the appellant is concerned particularly about two letters written by him to the Minister, both dated 20 May 2002. They canvass the appellant's many complaints about the Tribunal's decision. In them, he certainly raised the question of his entitlement to a visa because of his statelessness. One letter also dealt with his entitlement to work. Although the letters were not before Cooper J, his Honour was aware of much of their substance. See the reasons for judgment at [44]. Cooper J concluded that he was without jurisdiction to deal with any such decision of the Minister. The effect of the High Court's decision in Plaintiff S157/2002 upon his Honour's reasoning was not addressed in argument before us. Further, any decision of the Minister was made after the application for review and could not have been reviewed in these proceedings which seek review of decisions made prior to the date of filing, namely 10 May 2002. The letters of 20 May 2002 were irrelevant to the proceedings before Cooper J. 15 The appeal will be dismissed with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of The Court.

Associate: Dated: 17 March 2003 The Appellant appeared In Person.

Solicitor for the Respondent: Blake Dawson Waldron

Date of Hearing: 19 February 2003

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