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MIGRATION - Application to review decision of Refugee Review Tribunal - whether Tribunal under obligation to accept documentation produced by applicant - whether applicant precluded from making further application - no jurisdictional error.

NAXG v Minister for Immigration [2004] FMCA 912 (8 December 2004)

NAXG v Minister for Immigration [2004] FMCA 912 (8 December 2004)
Last Updated: 13 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAXG & ORS v MINISTER FOR IMMIGRATION
[2004] FMCA 912




MIGRATION - Application to review decision of Refugee Review Tribunal - whether Tribunal under obligation to accept documentation produced by applicant - whether applicant precluded from making further application - no jurisdictional error.




Migration Act 1958

Migration Regulations 1994

Australian Postal Corporation Act 1989 (Cth)

Minister for Immigration & Multicultural Affairs, Ex parte Durairajasingham (2000) 168 ALR 407

Dranichnikov v Minister for Immigration (2001) 109 FCR 397

Jaswal v MIMIA [2004] FCA 787

Kirk v MIMA (1998) 87 FCR 99

Braganza v MIMA (2001) 109 FCR 364

Potier v MIMIA [2000] FCA 252

Yilmaz v MIMA (2000) 100 FCR 495

NAHI v MIMIA [2004] FCAFC 10

Applicant:
NAXG & ORS




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG168 of 2004




Delivered on:


8 December 2004




Delivered at:


Sydney




Hearing date:


23 August 2004 (final submissions

4 September 2004)




Judgment of:


Barnes FM




REPRESENTATION

Counsel for the Applicant:


Nil




Solicitors for the Applicant:


Nil




Counsel for the Respondent:


Mr J. Potts




Solicitors for the Respondent:


Clayton Utz




ORDERS

(1) That the application is dismissed.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG168 of 2004

NAXG & ORS



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 8 October 2003 affirming a decision of a delegate of the respondent not to grant the applicants protection visas. The applicants are a couple from Macedonia and their daughter who was born in Australia in 2001. The background to this application is that prior to the commencement of their relationship the applicant wife arrived in Australia on 20 June 1997. The husband arrived on 2 August 1997. They began a relationship in 1998 and became de facto husband and wife. Their daughter was born in 2001.

2. The applicant wife originally lodged an application for a protection visa in February 1998. That application was refused and the decision affirmed by the Tribunal in April 1999. A request was made to the Minister under s.417 of the Migration Act 1958 but the then Minister did not exercise his discretion.

3. On 28 September 2001 all three applicants lodged an application for protection visas. The applicant husband was the principal applicant and the applicant wife and child applied as members of his family unit. Despite her prior application, the applicant wife was permitted to make a further application for a protection visa, but only as a member of the applicant husband's family unit.

4. Their applications were refused by a delegate of the respondent on

23 April 2002 and on 20 May 2002 the applicants sought review by the Tribunal. On 5 June 2003 the applicant husband and applicant wife attended a hearing before the Tribunal.

5. In the Tribunal reasons for decision the Tribunal pointed out that only the applicant husband made specific claims under the Refugees' Convention and that his de facto wife and child were relying on their membership of his family unit. The Tribunal stated that under s48A of the Migration Act 1958 as in force when the application was lodged, the applicant wife was, because of her prior application, unable to make a further application for a protection visa while in Australia. However as had been held in Dranichnikov v MIMIA (2001) 109 FCR 397, she could apply for a protection visa on the basis of family membership and not as a refugee. Hence her application was valid. The Tribunal noted that amendments to the Migration Act of 1 October 2001 did not apply to the present applications.

6. The claims of the wife were considered by the Tribunal in assessing the applicants' claims as they were central to such claims. The applicant husband had made a number of claims, first in the protection visa application, then in a statement provided to the Department in response to a request for comments on information that might form the basis of the delegate's decision and finally in evidence at the hearing before the Tribunal. In particular the wife claimed that she was of Macedonian ethnicity and Orthodox religion but some years ago had married a man of Albanian ethnicity and Islamic religion. They had a son. They separated and the ex-husband took the child to Denmark where the paternal aunt provided day to day care. Subsequently they divorced and the applicant wife came to Australia in 1997. The wife described these events to the Tribunal in stronger terms - referring to the ex-husband's custody of the child as "kidnapping". She did not provide dates for relevant events. The applicant wife claimed that her ex-husband learned of the relationship she had formed with the applicant husband through her mother. She claimed that he sent messages and threats to her mother (in Macedonia) that she should return to him and that he assaulted her mother and grandmother in December 2002 with a group of men wearing Albanian Liberation Front uniforms. The police did "absolutely nothing" (although they interviewed the women).

7. The wife claimed to have discovered that her ex-husband was a commander of a terrorist group because people her family knew had seen him in a UCK uniform and her parents had received a photograph of their grandchild in Denmark dressed in a UCK uniform. The wife claimed that her former husband had a criminal record and had been in custody in Denmark and would harm them in the future in Macedonia and that the authorities would not be willing or able to assist them. She claimed that he had also directed threats towards her daughter (the child she had had with the applicant husband).

8. In essence the applicant husband claimed that he feared, by reason of his Macedonian ethnicity, and perhaps also as a member of a particular social group as a lieutenant in the army reserves (namely Macedonian army officers) that he would be persecuted by Albanian terrorists, including the applicant wife's ex-husband whom it was alleged was an Albanian terrorist leader and whom it was said had made specific threats against all three applicants. The applicant husband also claimed to be at risk if he returned to Macedonia because he was now on the Albanian terrorists "wanted list" due to his ethnicity as a Macedonian and his relationship with his partner. It was claimed that the authorities could offer no protection to the applicants as they themselves were targeted by Albanian terrorists, that they were afraid to act and had previously failed to help the applicant wife in Macedonia.

9. As the Tribunal put to the applicant, the central element of the claims was that the applicant husband feared that he and his family unit would be harmed by the applicant wife's ex-husband or his agents if they returned to Macedonia. It was claimed that this was a matter beyond a mere domestic dispute because the ex-husband was a known Albanian terrorist commander and would target the applicants for reason of their ethnicity. They claimed that the authorities would be unable or unwilling to assist because of the power in parliament and in other government instrumentalities of the Albanian terrorists themselves. It was also claimed that the applicant husband would be known to these Albanian terrorists in general because of his military activities in the past while undertaking compulsory military service.

10. The Tribunal accepted that the applicant husband and wife were Macedonian citizens. The Tribunal had regard to independent country information about the situation in Macedonia. The applicants had referred to a large number of press cuttings apparently from local (that is, Australian) Macedonian language newspapers (clipped in such a way as to exclude the date and the source) and given their views about the situation in Macedonia. However the Tribunal found that the situation suggested by the applicants was diametrically opposite to that described by agencies such as the UK Home Office, the US Department of State and the Human Rights Watch Organisation. It was satisfied that the applicants had greatly exaggerated the situation in Macedonia (for example claiming that the terrorists were in control of the government) and indeed found that much of their evidence was exaggerated as was the language in which they couched their statements (for example, the wife's description of her ex-husband "kidnapping" their son and their characterisation of all ethnic Albanians as criminals and terrorists). The Tribunal described a number of inconsistencies in the applicants' evidence which it concluded appeared to be more "the result of saying anything they thought of rather than a deliberate concoction of deceit" (for example, about contact between the applicant wife and her mother and her ex-husband). The Tribunal found that the exaggeration of the evidence and the lack of any factual detail led it to conclude that neither of the applicants was a reliable witness. Moreover the story they put forward was not supported in any way by the independent evidence referred to by the Tribunal.

11. The Tribunal saw no reason to believe that the ex-husband (from whom the wife was divorced prior to mid-1997) should suddenly demand the return of his ex-wife after hearing of her forming a relationship in 1998 or after that relationship resulted in a child in 2001. Moreover the applicants had been away from Macedonia during the period of Albanian insurgency and the assertion that the ex-husband was a "terrorist commander" was based on stories that people, presumably known only to the wife, had seen him waving an Albanian flag and wearing a UCK uniform. The Tribunal had regard to the fact that the UCK did not emerge until 2001 and had largely disbanded before December 2002 the time at which the wife's mother and grandmother were allegedly bashed. This was more than a year after the end of hostilities, and contrary to the assertion that the police did nothing, at that time concrete steps were being pursued to enforce the rule of law. These claims were found implausible.

12. The Tribunal also found it unlikely that any harassment of the wife's family from the time she left Macedonia was for the sole or significant reason of her ethnicity as initially the inter-ethnic conflict was yet to emerge and as after 2001 it would be surprising if threats made for reason of ethnicity were couched in such personal terms and instructed the wife's return.

13. The Tribunal was satisfied that the applicant wife's assertion that she and the applicant husband and child would be harmed by her ex-husband if they returned to Macedonia was an exaggerated assertion based on the ill-will between herself and her ex-husband. It followed that the applicant husband's claimed fear that he and his family unit would be harmed by his partner's ex-husband on the basis of their ethnicity was not well founded. Moreover the Tribunal was satisfied on the basis of independent evidence that the State would be willing and able to offer protection if threats of either a personal or racial nature were made. The applicants' fears to the contrary were not well-founded. The Tribunal was not satisfied that the claims about the ex-husband being the commander of a terrorist group and threatening the applicants for reason of their ethnicity (or other Convention reason) were well-founded. It noted that the alleged commander of the ex-husband had formed a political party which became part of a coalition government in 2002 and had instructed his followers to choose legal political means to achieve their aims rather than guerilla warfare and other terrorist tactics.

14. The Tribunal also considered the applicant husband's other claims and found his fears to be not well founded. It was satisfied that the chance that he would be persecuted by Albanian terrorists for reason of his membership of a particular social group or for any other Convention reason was remote as there was no current or ongoing armed activity between ethnic Albanians and Macedonians (including those in the reserve forces). In any event the Macedonian State had shown itself willing and able to protect its citizens from such actions based on independent evidence. The Tribunal noted that the applicant husband had made no claims and nor did the evidence suggest that harm, let alone harm amounting to persecution, had befallen him in the past for a Convention reason. It found the chance that such harm would befall him in the reasonably foreseeable future to be remote. The Tribunal was satisfied that the applicant husband's fear of persecution for a Convention reason was not well founded. He was not a refugee. Hence his wife and child, relying on their membership of his family unit, could not succeed.

15. The applicants sought review by application filed in the Federal Court on 5 November 2003. The matter was subsequently transferred to this court. The only ground of review advanced was as follows:

I was trying to get to do [sic] whaterer [sic] it takes to protect my self and my family

16. This is not a proper ground of review and the applicants did not provide written submissions prior to the hearing.

17. In the hearing the applicants contended that the documentation they produced in support of their case was not accepted by the Tribunal. They referred to material which they said they had produced in the hearing from local, (that is, Australian) Macedonian newspapers and that they claimed to have told the Tribunal in the course of the Tribunal hearing that information they had read had been confirmed by the Macedonian news as broadcast on SBS radio. The only evidence before the court of what occurred in the Tribunal hearing is the Tribunal reasons for decision. The reasons record that during the hearing "the applicants had a large pile of newspaper clippings in front of them, unfortunately clipped in such a way as to exclude the date and the source" and that the Tribunal put to the applicants that the information appeared to be exaggerated and suggested that the local Macedonian language newspaper might itself not be quite correct. The applicants then said, according to the Tribunal, that the information they read was confirmed by the Macedonian news as broadcast on SBS radio. The Tribunal put to them that they were indicating that the Macedonian government was unable to govern and also respect the rights of the majority ethnic Macedonian population. The applicants commented. The Tribunal recorded their comments (to the effect that they understood what the situation in Macedonia was and that when the applicant wife came to the Tribunal on the last occasion she had discussed the situation in Macedonia and all her predictions had come true). The Tribunal went on to put to them that the harm they feared was in fact a fear of the applicant wife's ex-husband and that this was a domestic dispute. Again the applicants had an opportunity to comment on this suggestion.

18. In the findings and reasons part of the Tribunal reasons for decision the Tribunal noted that when reviewing the evidence, in face of the large number of press cuttings from local Macedonian language newspapers referred to by the applicants, the Tribunal had sought reliable independent evidence about the current situation in Macedonia. The Tribunal went on to refer to such independent evidence.

19. The weight to be given to particular independent information is a matter for the Tribunal. The applicants' complaint that the Tribunal did not accept the evidence which they put about the situation in Macedonia does not establish a jurisdictional error. It was open to the Tribunal to take into account the exclusion of the date and source of the material on which the applicants sought to rely in support of their claims in considering the evidential value of such material. The Tribunal reasons for decision reveal that the Tribunal had regard to the substance of the information put by the applicants which it described as appearing to be exaggerated. It has not been established on the material before the court that the Tribunal simply refused to look at the material. There was no obligation on the Tribunal to make copies of such material.

20. As to the claim by the applicants that there was corroborative confirmation of their views by news broadcasts on SBS radio, there is no material suggesting that any further evidence about such broadcasts was put forward, whether by way of transcript or otherwise, but it is clear from the reasons for decision that the Tribunal had regard to the applicants' evidence that there was confirmation from that broadcast. It put to them the effect of their views as to what was established by such material and noted their response.

21. Reading the Tribunal decision as a whole it is clear that, having considered independent evidence in relation to the situation in Macedonia which is referred to in the Tribunal reasons for decision, the Tribunal felt itself unable to place any significant weight on the newspaper material produced by the applicants and their claims about the situation in Macedonia. The weight to be attributed to particular items of evidence is a matter for the Tribunal and no jurisdictional error is established.

22. The applicant husband also contended that the suggestion that he and the interpreter at the Tribunal hearing had had some discussion about how to help his case in fact never happened. There is however no mention of any such suggestion in the Tribunal reasons for decision. No jurisdictional error is established by this claim.

23. The applicant wife contended that the Tribunal erred in finding her evidence to be exaggerated or untrue. She proceeded to address the court in relation to incidents that had occurred concerning to her ex-husband and their child. In particular she complained about the character of her ex-husband and her risk of harm from him. However, as was explained to the applicants, these proceedings are not a rehearing and the Tribunal findings in relation to such matters were matters of fact for the Tribunal. Merits review is not available in this court. The applicant wife tendered a document which purported to be a translation of a certification by a municipal court in Yugoslavia of the sentencing of a person to three months imprisonment and stating that the person had not yet served his sentence. The applicant wife sought to rely on this document as relating to her ex-husband. However it was conceded that this document was not before the Tribunal and it does not establish any jurisdictional error by the Tribunal.

24. The applicants submitted that what they had said was the truth and could be checked. The Tribunal findings in relation to the credibility of the applicant are matters for the Tribunal (Minister for Immigration & Multicultural Affairs, Ex parte Durairajasingham (2000) 168 ALR 407). The Tribunal considered the applicants' claims and their evidence in detail. It had regard, as it was permitted to do, to independent country information. It is apparent from the Tribunal reasons for decision that it drew the substance of this information to the applicants' attention and invited their comments. It did reject the applicants' claims based at least in part on credibility grounds but it was open to the Tribunal to do so. Its rejection of the applicants' credibility were based on grounds which were logically probative and findings of credibility are the function of the Tribunal. As the Tribunal credibility findings were open to it no error is demonstrated in such conclusions (Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 558-559).

25. The applicants took issue with the merits of the Tribunal finding in relation to State protection. Again this does not establish any jurisdictional error. The Tribunal findings in relation to effective State protection, which were principally findings of fact, were open to it on the material before it. As is mentioned above and was reiterated to the applicants in the hearing, merits review is not part of the function of the court in these proceedings. Whatever be the boundaries of jurisdictional error, it does not comprehend errors of fact as to the merits of the case put to the Tribunal (NAHI v MIMIA [2004] FCAFC 10 at [10]). Moreover the applicants' disagreement with what the independent evidence relied on by the Tribunal said in relation to the situation in Macedonia does not establish a jurisdictional error. As set out above the weight to be given to such evidence was a matter for the Tribunal and the Tribunal findings were open to it on the material before it.

26. It was suggested that the Tribunal should have inquired as to the true situation in Macedonia and that this would have confirmed the applicant's view of the situation. However it is for the applicants to make their case. There is nothing in the material before the court or the circumstances of this case to establish that the Tribunal was under an obligation to inquire as suggested. The Tribunal did take into account a number of sources of independent evidence in relation to the situation in Macedonia to which it referred (including material from the UK Home Office, US Department of State Reports and information from the Human Rights Watch Organisation). The fact that this information, as the Tribunal put it, spoke of a situation diametrically opposite to that spoken of by the applicants does not establish error in the manner contended for by the applicants.

27. An ancillary issue was addressed by counsel for the respondent, that being the basis on which the applicant wife made the application to the delegate which was reviewed by the Tribunal in the proceedings which are presently before the court. She had previously made an application for a protection visa. The present application was made by her in her capacity as a member of the applicant husband's family unit, although she clearly sought to put forward her own claims of persecution in some of the documents submitted. Counsel for the respondent submitted that the Tribunal did not err in the manner in which it addressed her claims, that is on the basis of her family membership and not as a refugee.

28. The Tribunal addressed this issue at the start of its reasons for decision noting that the applicants were de facto husband and wife and that the applicant wife had made a prior application in February 1998 which had been refused, the decision having been affirmed by the Tribunal in April 1999. The Tribunal referred to s48A of the Act as in force on

28 September 2001 as it stated that this was the date on which the applicant wife lodged the further protection visa application on the basis of her membership of the applicant husband's family unit. At that time s48A provided, relevantly, that a non-citizen who had applied for a protection visa which had been refused may not make a further application for a protection visa while in Australia. However in Dranichnikov v Minister for Immigration (2001) 109 FCR 397 the Full Court of the Federal Court had held that this provision did not prevent a person who had been refused a protection visa from making a subsequent application for a protection visa on the basis of family membership and not as a refugee. Accordingly if the version of s48A in force on 28 September 2001 was applicable, the applicant wife was properly permitted to make a valid protection visa application but only as a member of her husband's family and the Tribunal consideration of her claim on that basis was not in error.

29. There was an issue about the precise date on which the application was made by the applicant, because while the application was received on 28 September 2001 the receipt for payment by money order was not issued until 2 October 2001 (a day after s48A was amended in response to Dranichnikov). Under s.46 of the Act it is a requirement of a valid visa application that the visa application charge has been paid (see also clause 2.07 of the Migration Regulations 1994 in relation to further requirements for a valid visa application). Section 47(3) precludes consideration of an invalid application. Schedule 1, Part 4, Item 1401 of the Regulations prescribes requirements for a Protection (Class XA) visa relevantly providing for a prescribed form, a visa application charge of $30 and for an application by a person claiming to be a member of the family unit to be made at the same time and place as and combined with the application by the principal applicant.

30. The effect of s.46(1)(b)(a) is that until any prescribed visa application charge has been paid no valid application is made (Jaswal v MIMIA [2004] FCA 787 at [32]). In this case payment was tendered in the form of a money order, presumably issued by Australia Post on the terms and conditions imposed by s.32(1)(b) of the Australian Postal Corporation Act 1989 (C'th). Schedule 18A of those terms and conditions details the terms on which ordinary money orders are issued and, as the respondent contended, they are a negotiable instrument which in relevant respects differ little from a cheque for present purposes. In such circumstances, by analogy with the principles applied in relation to payment by a cheque (see Kirk v MIMA (1998) 87 FCR 99 and note that although the correctness of Kirk was challenged in Braganza v MIMA (2001) 109 FCR 364 that challenge was undecided, the well-established principle that when a cheque is given and accepted for the purpose of paying an amount due the amount due will be treated as paid on the date the cheque is given provided that the cheque is met on presentation is applicable. In this case as there is no suggestion that the money order was not honoured. Hence payment was be taken to have been made at the time it was tendered on

28 September 2001. On this basis the Tribunal correctly applied the law at that date.

31. The respondent also addressed the question of whether the application was otherwise valid given that only Part A was lodged prior to 1 October 2001 (Parts B, C and D not being received until 8 October 2001 and 22 October 2001). The court's attention was drawn to the decision of Finkestein J in Potier v MIMIA [2000] FCA 252 in which his Honour held that where an applicant was in immigration detention the lodging of Part A of form 866 alone was sufficient to constitute a valid protection visa application. In contrast there have been suggestions, for example in Yilmaz v MIMA (2000) 100 FCR 495 per Spender J, that an application which was incomplete with a "statement to follow" answer given to a critical question was not at that time a valid application but rather was inchoate and the Minister had a duty under s.47(3) not to consider it.

32. However, if the application was inchoate as at 28 September 2001 such that the date of lodgment of the application was to be taken as after

1 October 2001 that would mean the amendment to s48A introduced in response to the decision of the Full Court of the Federal Court in Dranichnikov would have applied. This would have had the effect that the applicant wife would have been precluded from making the second protection visa application even as a member of the family unit of the applicant husband. As the Tribunal affirmed the decision not to grant the applicants protection visas, any error by the Tribunal in consideration of the wife's application could have made no difference to the result. As the respondent did not contend that this was the case, but rather contended that the application was made on 28 September 2001 so that the former version of s.48A applied (thus enabling the applicant wife to make the second application as a member of the family unit of her husband) it is not necessary for the court to resolve the issues raised about the possibility that the application was not in fact valid until after 1 October 2001. The concession by counsel for the respondent that the applicant wife's application was valid and was made on 28 September 2001 means that she was not precluded from making the second application. On that basis the Tribunal's consideration of her circumstances reveals no error. The Tribunal properly considered all of her claims as part of a consideration of the claims of the applicant husband that he and his family unit would be harmed by her ex-husband on the basis of their ethnicity. No error is apparent in this respect. There was no suggestion that the applicant wife was able to make a second application for a protection visa in which her claims could be considered as specific Convention claims on her own behalf. The Tribunal properly considered both her claims and those of the applicant child as members of the family unit of their de facto husband and father respectively.

33. Finally, in response to the respondent's post-hearing written submissions addressing the effect of s.48A of the Migration Act the applicants also filed written submissions. They did not address this issue but took issue with the conduct of the Department and the provision of documentation by the Department (a matter not before the court). They stated that they could produce the tapes of the Tribunal hearing in relation to their claim that the Tribunal said that the translator and they were organising between them what to say to the Tribunal. Had they wished to rely on what occurred in the Tribunal hearing it was for the applicants to provide a transcript. They did not do so and the nature of the claim is not such as to warrant further consideration. The reasons for decision do not suggest that the Tribunal made findings about or took into account any such suggested collaboration. The applicants also claimed that they could produce the newspaper clippings that the Tribunal was allegedly not interested in receiving. This issue has been addressed. They again took issue with the merits of the Tribunal decision and reiterated their wish to live in Australia. Such complaints do not establish jurisdictional error by the Tribunal.

34. The applicants have not demonstrated any jurisdictional error. Accordingly the application must be dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date:
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