SZDGM v Minister for Immigration and Multicultural Affairs

REASONS FOR JUDGMENT 1 This is an appeal against a judgment of a Federal Magistrate given on 7 July 2006 dismissing applications for mandamus, prohibition, certiorari and injunctions with respect to a decision of the Refugee Review Tribunal given on 2 March 2004 and handed down on 23 March 2004. The Tribunal had affirmed a decision of a delegate of the Minister to refuse to grant a protection visa to the appellant. 2 The appellant was born in the Ukraine when it was part of the Soviet Union, but was habitually resident in Latvia before coming to Australia on a Latvian passport. The appellant claimed to be stateless, as she never applied for citizenship in Latvia. The appellant belongs to the Jewish ethnic group and her religion is Russian Orthodox. She is the mother of two children, a son and a daughter. Her son previously arrived in Australia and made his own claim for protection, whilst her daughter arrived with the appellant and also made a claim for protection. The appellant has a husband who lives in Latvia, but at the time of the Tribunal's decision the appellant had not lived with her husband for 10 years. 3 Before the Tribunal the appellant claimed to have a well-founded fear of persecution because she was the mother of her son and her daughter. She claimed that her son was persecuted by the authorities due to his charity activities for the Russian Orthodox Church and that he was seen as a threat to Latvian independence. Consequently, her son was forced to flee Latvia in 2001. The appellant claimed that her daughter was subject to threats and intimidation by the authorities relating to the daughter's involvement in a paedophile case. The appellant claimed that by reason of family association she too feared this kind of persecution. 4 The Tribunal accepted that the appellant was stateless and, for the purposes of the Refugees Convention, assessed her claims against Latvia as her country of former habitual residence. The Tribunal accepted that the appellant was unable to return to the Ukraine where she had no family or friends. However, the Tribunal found no country information suggesting that mothers of children who suffered harm in Latvia we are persecuted or harmed. The evidence before the Tribunal did not suggest the appellant suffered any harm in Latvia. 5 The Tribunal also considered whether the appellant had suffered discrimination as a Ukrainian of Jewish ethnicity who is Russian Orthodox, but found that it was not satisfied that the appellant suffered, since she was able to travel, work and own an apartment. Furthermore, there was no country information which suggested that there was discrimination against Russians or Ukrainians in Latvia. The Tribunal noted the existence of requirements to obtain citizenship in Latvia but found that the inability to pass the language test for citizenship was not discrimination. The Tribunal was satisfied, on the country information, that the appellant, as an ethnic Ukrainian Jew of Russian Orthodox faith, was able to return to Latvia. 6 The appellant sought to review the Tribunal's decision before the Federal Magistrates Court. She filed an amended application on 1 February 2005 which, amongst other things, asserted that (1) the Tribunal found the appellant was not a refugee because the violence inflicted upon her was not for a Convention reason; (2) the matter was similar to Voitenko v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 355 where the appellant exposed corruption and suffered as a result and (3) the Tribunal erred in law by failing to consider the appellant's actual or imputed political opinion. 7 At the hearing before the Federal Magistrates Court, the appellant relied on written submissions which asserted, amongst other things, that the Tribunal found no evidence of discrimination yet accepted that some Russians did suffer discrimination; that the appellant's claims did not relate to discrimination but related to membership of a particular social group due to the persecution of the appellant's children; that the Tribunal failed to take into account the harm to the appellant's children; that the Tribunal misconstrued the concept of persecution; and that the decision was illogical. 8 The Federal Magistrate referred to a passage from the judgment of Kirby J in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [78], to a passage from the judgment of Gummow and Hayne JJ in Abebe v The Commonwealth (1999) 197 CLR 510 at [187] and to a passage from the judgment of Hely J in SZATG v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 215 ALR 358 and concluded at [6]: The effect of these decisions is that the responsibility for satisfying the Tribunal of a claim lies with the applicant and in the absence of evidence the Tribunal is unlikely to achieve the necessary state of satisfaction. This is what occurred. 9 The Federal Magistrate observed that the appellant's claim was based not on her own Russian ethnicity, but on her connection with the suffering of her son and her daughter. The Federal Magistrate said at [10]: The applicant has argued that the sufferings of a child are imposed upon the parent and to the extent that her children suffered persecution she did too. This is an understandable contention but I think that in order to be made good the applicant would have to satisfy the Tribunal of two things. The first is that her children truly were persecuted. The second is that the nature of the harm to her feelings was serious enough in itself to constitute persecution. The Tribunal, on the same day as it heard the applicant's claims, had decided that neither the son nor the daughter were persons deserving of the protection of Australia and this would appear to make it difficult for the applicant to satisfy the Tribunal of the first requirement. In regard to the second requirement, and these requirements must be cumulative, no evidence at all was presented other than an assertion. 10 I should say that the reference by the Federal Magistrate to possible or potential harm to the appellant's feelings must be taken not simply as a reference to the natural feelings that a mother would have towards her children when they were in danger, but also to the case which was then conducted by the appellant before the Federal Magistrate in which, according to what the Federal Magistrate said elsewhere in his judgment, the appellant claimed to live in constant fear of being targeted by those who targeted her children. It is clear that the Magistrate recognised that the appellant's case was based not only upon motherly affection but also upon a claimed fear that the persons who had it in mind to persecute or to inflict harm upon her son and her daughter might likewise entertain the same intentions towards herself. 11 The appellant's son's application for a protection visa was made in conjunction with a like application by his wife and by his daughter, that is to say, the appellant's daughter-in-law and grand-daughter respectively. That group of applications was refused by the delegate and by the Tribunal. 12 On 30 June 2006 the son, the daughter and the granddaughter secured the benefit of a judgment by the Federal Magistrates Court granting them orders in the nature of certiorari and mandamus quashing the decision of the Tribunal to affirm the decision of the delegate and ordering the Tribunal to determine in accordance with law the review applications which had been made to it: (SZDGH v Minister for Immigration and Multicultural Affairs [2006] FMCA 943) The basis upon which the parties in that case secured those remedies was a finding by the Federal Magistrate that in its original decision the Tribunal had failed to make any finding as to the nationality or statelessness of the appellant's son's daughter. In the view which the Federal Magistrate took, a finding as to such a subject was fundamental under s 36 of the Migration Act 1958 (Cth) ("the Act"), and the Tribunal's omission to make such a finding was a jurisdictional deficiency. 13 The Federal Magistrate's judgment in that matter was given seven days before a different Federal Magistrate gave judgment in the appellant's own matter. In the present matter the Federal Magistrate adverted to the earlier matter in the following terms at [8]: Before me today the applicant was represented by her son. His application for protection had also been turned down by the same Tribunal but he produced to me a copy of a judgment of Scarlett FM which indicated that because the Tribunal had not considered the nationality of his daughter it had fallen into jurisdictional error. The judgment commented in no way upon the decision of the Tribunal in relation to any alleged persecution purportedly suffered by the son. 14 According to a submission made today on behalf of the appellant and read out from a document in the preparation of which the appellant had participated by her granddaughter: Few days ago there was Tribunal hearing of mine, my father's and my mother's case which as I believe you know was sent back for Tribunal rehearing by Magistrates Court. Can we please ask you to postpone the court hearing until the decision will be made by Tribunal about mine and my father's case. 15 The first submission which has been made to me today by the appellant is that I should adjourn this appeal pending the outcome of her son's reheard application before the Tribunal. I do not believe it would be correct for me to do that. This is an appeal from the Federal Magistrate, and my first function is to consider whether the Federal Magistrate was in error in any way. The judgment in the matter of the appellant's son occurred before the Federal Magistrate gave his judgment in the appellant's own matter and the Federal Magistrate was well aware of it. It does not appear whether the appellant asked for the hearing of her matter to be deferred upon the ground that her son had succeeded in his matter. If she had made such a request then it seems that the Federal Magistrate rejected it and nothing has been put before me which would show that he was in error in proceeding in that way. If she did not make such a request, then that would have been the appropriate place to make it. Whether or not she made such a request the fact is that she challenges the decision which the Federal Magistrate actually made in her case and that challenge should stand or fall according to whether it has substantial grounds. Any consequence of the Tribunal's reconsideration of the appellant's son's circumstances is something which would need to be dealt with as and when that occurs. 16 The Federal Magistrate was concerned, and I am concerned, with one question only - whether there was a jurisdictional defect in the way the Tribunal actually dealt with the application for review in the case of the appellant. It is not the function of this court to provide a general superintendence over the progress of the applicant's attempts to get a protection visa and the similar attempts made by other members of her family. 17 I will turn then to the grounds of appeal upon which the applicant relies in her Notice of Appeal dated 27 July 2006. The applicant contends that the Federal Magistrate was in error in three respects. It is first said that he should have held that the Tribunal member who affirmed the decision of the delegate was biased against her, or at least that it is apparent from the reasons which she gave that bias might reasonably be apprehended on her part. A submission of this nature is a serious one. It was not raised before the Federal Magistrate. It was not the subject of the appellant's outline of submissions filed in this court on 14 November 2006 and it was not the subject of any oral submission made to me in this court. It remains only as a ground stated in the Notice of Appeal. In the circumstances the only proper thing for me to do is to find that it is entirely unsubstantiated and I will not therefore uphold that ground. 18 The second basis upon which the applicant says the Federal Magistrate fell into error was that he did not hold that the Tribunal misconceived the definition of "harm" in the Act. The concept of "harm" is defined in s 91R of the Act for the purposes of giving meaning to what amounts to persecution within the terms of subs (1)(b) of that section. As the matter was developed in the written and oral submissions on behalf of the appellant, the suggestion seems to be that the Tribunal did not recognise that the appellant herself did not have to be persecuted or that it was sufficient for the appellant to be in fear of persecution. 19 It was submitted on behalf of the appellant that albeit that she may never have suffered persecution herself, the circumstance that, if it were the fact, the appellant had a fear of persecution based on the way other family members had been treated ought to have been regarded by the Tribunal as sufficient in this regard, and the Tribunal's failure to do so ought to have been treated by the Federal Magistrate as a jurisdictional defect. In a submission read to me today by her grand-daughter the appellant said: Also in our submission I would like to underline that the previous judge didn't pay attention to the Tribunal's application which goes against section 33 of Convention. The Tribunal ruled that because my grandmother wasn't persecuted personally she didn't have a substantial reason for her fear. But, it is also known, that the fear of a person need not necessarily be based on the applicant's own personal experience. What happens to one's relatives and other members of the same social or political group may show that one's fear that sooner or later he or she will become a victim as well is well-founded. 20 The Federal Magistrate himself dealt with this submission in the paragraphs of his judgment to which I have referred above. The Tribunal dealt with the relationship between the appellant's fears of persecution for herself and the circumstances of other members of her family in the following passages in its decision: The applicant travelled to Egypt in March 2000, Ukraine in September 2000 & 2001, Turkey in May 2002. She has also visited Crete and Cyprus with a previous passport. She claims she suffered persecution because her son was forced to flee from Latvia in 2001. She was in constant fear of being targeted. Her daughter was subject to numerous threats, intimidation and physical assault because of her involvement in a paedophile case. She decided to leave Latvia because all her family members were targeted and the possibility of her being harmed by those who had already harmed her son and daughter. At a hearing held on 3 July 2003 the applicant stated that her husband remains in Latvia. They have not lived together for 10 years. She did not live with her children in Latvia. She fears being harmed because her children were persecuted. The authorities can persecute her in order to threaten her children and the children thought so too. As for her son he was trying to do his best and was involved in charity activity. She noticed he was experiencing some problems. He changed his phone numbers but the situation became worse when one of his colleagues disappeared. Before his disappearance the colleague had received threatening calls. Nothing happened to her in Latvia but something could happen to her children and she was scared as she is their mother. 21 A little later in that section of its decision which dealt with its findings and reasons the Tribunal said: Whilst the applicant did not live with either her son or daughter, nevertheless she fears being harmed in Latvia because her son and daughter, presently in Australia, suffered harm in Latvia. I have found no independent evidence to suggest that mothers of children who suffer harm in Latvia are persecuted or harmed. The evidence does not suggest the applicant suffered any harm in Latvia. I find the applicant did not suffer Convention related harm in Latvia. 22 In another part of its decision in which it dealt with legal aspects of the issues which were before it, the Tribunal gave careful attention to the requirements of s 91R of the Act and particularly to the significance of the various criteria set out in subs (2) of that section. It is manifest that the Tribunal took into account that dimension of the appellant's case which was based upon the fear she had, or the apprehension she had of harm to which she might be subject, and which arose out of the more immediate circumstances of her son and her daughter. 23 Although the Tribunal found that the appellant herself did not suffer any harm in the relevant sense, that was not all it found. The whole structure and thrust of its decision makes it clear that it was aware that the appellant's case on the matter of harm was an apprehensive one, as it were, and that her apprehensions were based upon the way that she claimed her son and her daughter had been treated. Insofar as the statutory requirements of the concept of harm are concerned, the Tribunal referred to them in its decision and appears to have instructed itself appropriately in accordance with the Act. 24 The third ground in the appellant's Notice of Appeal is that the Tribunal ignored relevant information, being the appellant's daughter's and son's matters, and took into account irrelevant information, being the general country report on Latvia to which the Tribunal referred. I take it that the ground implies also that the Federal Magistrate erred in not so finding. Insofar as the first aspect of this ground is concerned, it would be obvious from what I have already said that this ground cannot succeed. Manifestly, the Tribunal took into account what the appellant was saying as to her daughter and her son and their particular circumstances, and the significance of those circumstances to her own claim. Insofar as the Tribunal's consideration of general country information is concerned, it is true that the Tribunal did proceed in that way, but this is a specialised Tribunal which is charged with processing the claims of applicants for protection visas. Not only is it appropriate that the Tribunal should take proper account of broad and relevant information with respect to the country to which a particular applicant fears to return: for my own part, I find difficulty in seeing how the Tribunal could adequately discharge its important obligations without some such information at its disposal. The propriety of the Tribunal proceeding in this way was, of course, upheld by the Full Court in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]. 25 For those reasons I propose to dismiss the appeal.