FEDERAL COURT OF AUSTRALIA

MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066

MZKAJ, MZKAK AND MZKAI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

VID 1447 OF 2004

NORTH J

4 AUGUST 2005

MELBOURNE

THE COURT ORDERS THAT:

1.         The application to reinstate the appeal is dismissed.

2.         The application to rely upon new grounds of appeal is dismissed.

3.         The appeal is dismissed.

4.         The question of costs is reserved.

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

REASONS FOR JUDGMENT

1                     Before the Court is an appeal from a decision of Phipps FM delivered on 9November 2004.  The Federal Magistrate dismissed applications for review of two decisions of the Refugee Review Tribunal (the Tribunal), both made on 18 September 2002.  The Tribunal affirmed decisions of the delegate of the respondent, Minister for Immigration and Multicultural and Indigenous Affairs, not to grant protection visas to the appellants.  On 19 May 2005 the Chief Justice determined that this appeal be heard by a single judge pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth). 

background

2                     The appellants are husband, wife and daughter.  The wife was born in 1955 in Russia and has lived in Riga, Latvia since 1983.  She married in 1991.  Her husband was born in the Ukraine in 1956 and has lived in Riga since 1978.  The daughter was born in 1980.  Both husband and wife left Latvia legally after obtaining Latvian aliens passports.  The wife arrived in Australia on 5 February 2001 with her daughter.  The husband arrived in Australia on 13 February 2002.  The husband and wife are stateless because, so the Tribunal found, the Latvian Government will not grant citizenship to people born outside Latvia. 

the appellants’ claims

3                     The appellants claimed that they were persecuted by the Latvian mafia and refused effective protection by Latvia by reason of their Russian ethnicity or status as non-citizens. 

4                     The husband and wife operated a footwear company in partnership with a man called Ivan.  They claimed that in about 1996-97 the business was the target of demands for protection money.  In April 1997 Ivan was bashed.  The wife complained to the police about the attack and they said they could do nothing.  There were further threats and again the wife went to the police who did not even register her complaint or take a statement.  They told her to go and live in another country.  During this time Ivan said that he collected certain material which would seriously compromise some very important people.  On 25 April 1998 Ivan went to meet some important people.  He did not return from this visit.  Instead, phone calls were received demanding that the documents he had collected be returned or there would be problems.  In July Ivan’s wife, Irina, was informed that he had been found murdered.  After this the demands for protection money continued to be made of the husband and wife.  They were told to hand over an accumulated amount of protection money of $US60,000, together with the documents which Ivan had collected.  Ivan’s widow taped the conversations and took them to the police, but the police said that they would not protect her because there was nobody from whom to protect.

5                     In March 2000, the wife was pushed out of a moving bus.  When she returned from hospital she received a phone call saying that there will be worse next time.  In September 2000, some people attempted to abduct the daughter, and the wife was told that if she did not pay protection money next time the daughter would be kidnapped.  Then, on 6 October 2000, the wife was beaten on her way home.  She did not report this to the police because the callers had told her not to.  After this beating she decided to leave the country.  The husband remained in Latvia, but the phone threats continued and the police took no action.  In August 2001, he was attacked and left bedridden for two months. 

the tribunal’s reasoning

6                     The Tribunal made two decisions, one in respect of the wife and daughter (MZKAJ and MZKAK) and another in respect of the husband (MZKAI).  The findings and reasons contained in the Tribunal’s decisions are relevantly identical, with the addition of a paragraph dealing with the husband’s right to enter and reside in Russia.  Unless otherwise indicated, page references to the Tribunal’s decision are to the decision in relation to MZKAJ and MZKAK.

7                     Near the start of its “Findings and Reasons” in each decision, the Tribunal expressed the conclusion at 22, that the appellants’ “account lacked credibility in areas that were important, not peripheral, to their overall claims.” 

8                     The Tribunal did not accept that the appellants were targeted for extortion by the mafia or anybody else.  It gave three reasons for this conclusion.  First, the Tribunal did not find it plausible that the appellants were targeted in the way claimed over a period of years and could not, at the initial hearing, identify the people who were targeting them.  Then, at a resumed hearing the wife named one of the extortionists.  The Tribunal regarded the two versions of her evidence as inconsistent.  Second, the Tribunal rejected the suggestion that Ivan had documents which led to the threats against the appellants.  The Tribunal observed that the contents of the documents were differently described at different points in the evidence.  It also found it inconceivable that the documents would not be provided to support the claims made.  Third, the Tribunal rejected the claim that the appellants left Latvia secretively in order to avoid danger.  There was no satisfactory explanation why the husband stayed behind when the wife and daughter left.  Further, the evidence about what happened to the appellants’ business after the husband left Latvia was inconsistent.  It was implausible that the business was just left behind as the husband said.  Then, the appellant said he had changed his name in order to escape the threats, but the Tribunal found that this story did not make sense.  The process of a formal name change would not avoid the extortionists.  As the Tribunal found that the appellants were not the subject of any extortion, it also rejected the evidence that they had sought police protection in relation to such extortion.

9                     The Tribunal then considered the claim that the appellants were seriously harmed and denied State protection independently of the allegations of extortion.  It again gave three reasons for rejecting these claims.  First, the Tribunal had serious doubts about the claims of beatings, ejection from a moving bus, or attempted kidnapping in the light of inconsistent evidence given about the timing of these events, and concerns about the overall credibility of the appellants considering that these attacks were bound up with the claims of extortion.  Second, the Tribunal found that the appellants’ own evidence did not support the allegation that they had been denied police protection.  The Tribunal examined documents tendered to support the allegation and found that the documents indicated that the police were available but that the husband did not pursue the alleged complaints.  Third, the Tribunal assessed the country information available and concluded, at 25 of the decision, that the appellants were able to avail themselves of state protection.  As this passage is significant for the purpose of the appeal it is set out in full as follows:

Third, country information indicates that Latvia has the usual range of law enforcement bodies you would expect in a country aspiring to be perceived as democratic and European.  The information indicates there are problems in the judicial system, and that police sometimes use excessive force.  The fact that none of the information mentions a want of police protection to Russians should be interpreted naturally: i.e. as indicating that this is not a problem in Latvia.  The advisers’ submissions cite a good deal of country information about the status of Russians in Latvia, and under Latvian Law, but none of it directly supports the proposition that Russians aren’t protected by the police if crimes are committed.  The Tribunal does not agree that the latter can be inferred from the former.  Indeed, if such a large sector of the Latvian population was being denied state protection, there would be more direct human rights commentary on the subject.  The Tribunal does not accept that the police withheld protection because the applicants are Russian.  The Tribunal is satisfied that the applicants can avail themselves of the protection of the Latvian authorities.

10                  Then, in relation to the husband the Tribunal held that s 36(3) of the Migration Act 1958 (Cth) (the Act) was an insuperable obstacle to his success.  The section provides:

Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

The husband held a current Russian visa, and the Tribunal found that Russia would not return its nationals coming from former Soviet countries. 

The federal magistrates decision

11                  Although this is an appeal against the Federal Magistrates decision, the appellants acknowledge that the grounds upon which they seek to rely were not raised before the Federal Magistrate.  Consequently, it is not necessary to examine the reasoning of the Federal Magistrate.  It is noteworthy that the appellants were represented before the Federal Magistrate by a pro-bono counsel. 

the notice of appeal

12                  The notice of appeal sets out two grounds as follows:

·        It appears that the Tribunal failed to give the Appellants an opportunity to comment on relevant informant, which is in breach of s.424A(1) of the Migration Act 1958 (hereinafter referred as the Act);

·        There was no evidence or other material to justify the making of the decision, which is in breach s.476(4) of the Act.

13                  The meaning of the first ground of appeal was explained in the appellants’ outline of submissions filed on 30 December 2004 as follows:

7.                  The whole credibility issue was build [sic] upon the Tribunal’s findings, namely that the appellants were supposed to know the named [sic] of their persecutors, since ‘it was the same racket, which was operating throughout the area over a period of years’ [157] and upon inconsistencies, which ‘raised doubts about their claims’ [161-162].

8.                  It is to be stated however that during the course of the hearing the Tribunal raised no concerns about the appellants’ alleged lack of credibility.  Additionally, it did not give the appellants any particulars of alleged inconsistencies nor in gave them an opportunity to respond.

the aborted hearing

14                  The hearing of the appeal was listed for 24 May 2005.  Late in the afternoon of 23 May 2005, the Court received a facsimile from a migration agent, Mr Arthur Volonski, seeking an adjournment of the hearing of the appeal and attaching three standard form medical certificates, one in relation to each appellant.  Printed on the medical certificates were the words “is unable to attend to the usual duties on account of personal illness”.  The evidence in support of the adjourned application was clearly unsatisfactory.  This view was conveyed to Mr Volonski who faxed a further written request to the Court at 10 am on the morning of the hearing.  He explained that he had spoken to the appellants’ doctor who said that the reason for the appellants inability to attend was a flu infection.  The respondent opposed the adjournment of the hearing. 

15                  In the circumstances, the following orders were made:

1.           The appeal is struck out with costs.

2.                       Leave to the appellants to apply in writing to the Court by 4.00 pm on 26 May 2005 for leave to reinstate the appeal.

3.                       Any application for leave to reinstate the appeal is to be served on the respondent by 4.00 pm on 26 May 2005.

4.                       Any application for leave to reinstate the appeal will be heard at 11.30 am on 1 June 2005.

5.                       If the application for leave to reinstate is successful, the appeal will be heard on 1 June 2005, immediately following the application for leave to reinstate the appeal.

the reinstatement application

16                  On 26 May 2005, the appellants filed an application for leave to reinstate the appeal.  The application was supported by an affidavit sworn by the daughter.  The affidavit explained the circumstances of the appellants’ illness.  Had the explanation been given in sufficient time before the hearing of the appeal, and not late in the afternoon of the day before, it is likely, I would imagine, that the respondent would have accepted that the hearing of the appeal would have to be adjourned. 

17                  I accept that the affidavit provides a reasonable explanation for the need for an adjournment.  The fact that the application to the Court was mishandled is a matter which I will address in due course when considering the question of costs. 

18                  The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success.  If not, there is no purpose in reinstatement.  I will return to the question of the merits of the appeal shortly.

application for leave to raise new grounds of appeal

19                  The appellants conceded that the arguments on which they sought to rely at the hearing of the appeal were not raised before the Federal Magistrate.  They therefore require leave to rely on the new grounds at this stage of the litigation.  The Court has power to allow the appellants to raise those new grounds if it is in the interests of justice to do so: H v Minister for Immigration & Multicultural Affairs (2000) 63 ALD 43; [2000] FCA 1348 at [6]-[8] per Branson, Marshall and Katz JJ; VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74 at [23]-[24] per North, Merkel and Weinberg JJ; see also Coulton v Holcombe (1986) 162 CLR 1 at 7-8 per Gibbs CJ, Wilson, Brennan and Dawson JJ.  One of the important considerations in determining whether it is in the interests of justice to allow the appellants to rely upon the new grounds is whether the new arguments have a reasonable chance of success.  I turn to that matter immediately.

the appellants’ arguments

20                  The appellants’ arguments, as set out in their outline of submissions, were further developed in supplementary submissions filed on 27 May 2005. 

21                  When the appeal came on for hearing on 1 June 2005, the appellant wife and daughter attended, and were accompanied by Mr Volonski.  The wife said that the husband was still ill and unable to attend.  The wife and daughter asked that Mr Volonski speak on their behalf.  The Court permitted this course and Mr Volonski sat at the bar table and assisted the wife and daughter to present their case.  The wife was unable to speak English.  An interpreter was provided for her.  The wife asked that her daughter address the Court on her behalf, and again this was permitted.  The daughter read a statement in Russian, and this was interpreted, although the daughter spoke quite good English.  It is likely that Mr Volonski helped the appellants to prepare this statement because it demonstrated some understanding of the requirements of this area of the law.  The appellants raised a number of matters which had not been included in the written outlines filed prior to the hearing.  It seemed desirable to the Court to have considered answers from the respondent as to these matters.  Consequently, orders were made requiring the parties to file and serve further limited written submissions. 

22                  On 23 June 2005, the respondent filed those submissions, and on 3 July 2005 the appellants filed further submissions in response. 

23                  The arguments which emerge from all of the appellants’ submissions and the statement read at the hearing of the appeal can be summarised as follows:

·                    The Tribunal found that the appellants were not credible witnesses for several reasons, including that they could not name their persecutors, and there were inconsistencies in their evidence about the documents said to be held by Ivan.  The finding that the appellants were not credible witnesses was central to the Tribunal’s reasoning.  The appellants argued that the doubts held by the Tribunal was information within the meaning of s 424A(1) of the Act and hence, the Tribunal was bound to tell the appellants that it had such doubts about their evidence.  The failure to comply with the section constituted jurisdictional error (the s 424A (1) argument).

·                    The appellants relied upon two cases described as “SZAUD v Minister (File No. 1107/2003)” and “SZARR v Minister (No. SZ970 of 2003)” which were said to be identical to the present case, and which, the appellants argued, demonstrated that the present case should be remitted to the Tribunal for a further hearing by reason of the failure of the Tribunal to comply with s 424A(1). 

Copies of the decisions were not provided to the Court.  On further enquiry after judgment was reserved, Mr Volonski explained, in a facsimile dated 22 July 2005, that in each of these cases the respondent consented to remit the cases for a further hearing by the Tribunal.  In those circumstances, the cases are of no assistance to the appellants.  They are not authoritative decisions on any issue concerning s 424A. 

·                    The case of VGAC & Anor v Minister [2004] FMCA 495 (VGAC), raised similar questions about Latvian residents.  The Federal Magistrate upheld the submission that the Tribunal had fallen into jurisdictional error by ignoring important parts of the appellants’ claims.  Similarly, in the present case, the appellants argued that the Tribunal ignored parts of their claims (the VGAC argument).  Paragraph 17 of the appellants’ supplementary submission encapsulated the argument as follows:

As far as the present case is concerned the Tribunal did ignore a number of important parts of the appellant’s claims in this case, namely:

(i)                 whether the situation had worsened for the [appellants] by reason of their being persecution by Latvian criminals (in addition to wiode [sic] spread discrimination the Russian speaking population had been subject against in Latvia);

(ii)               whether the fact that the [appellants] had not known the names of their persecutors was a sufficient evidence to suggest that they were not ‘credible witnesses’;

(iii)             whether information provided by the [appellants] in support of their claims were credible;

(iv)             whether cumulatively the [appellants’] claims gave rise to a well-founded fear of persecution.

·               On 28 April 2004, the Tribunal accepted Irina’s case and remitted the matter for reconsideration with the direction that she was a person to whom Australia has protection obligations under the Refugees Convention (Refugee Review Tribunal V03/16327).  Her circumstances were relevantly the same as the appellants’ circumstances and her evidence was found to be credible.  The appellants argued that this decision demonstrated that if they had been informed of the Tribunal’s doubts about their credibility, they would have been able to have satisfied those doubts.

consideration

The s 424A (1) Argument

24                  Section 424A (1) provides as follows:

(1)          Subject to subsection (3), the Tribunal must:

(a)          give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)          ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

(c)           invite the applicant to comment on it.

25                  Information as referred to in s 424A(1) of the Act is concerned with knowledge of a fact or circumstance communicated to, or received by, the Tribunal.  A subjective determination by the Tribunal that the appellants’ account is not credible does not enliven the obligation imposed by the section:  Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109per Sackville J at [51] – [54]; VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 at [24] per Finn and Stone JJ.  In the present case, the appellants’ complaint is that the Tribunal did not tell them that it did not find their evidence about the alleged assaults or the evidence of the documents said to be held by Ivan to be plausible.  In other words, the Tribunal did not advise them of its assessment of the evidence given by them.  That is a complaint about the subjective determination by the Tribunal that their evidence was not credible.  It is not a complaint about a fact or circumstance communicated to or received by the Tribunal.  It is not a complaint concerning information within the meaning of s 424A(1).  Thus, the first ground of appeal is bound to fail. 

The VGAC Argument

26                  As can be seen from the appellants’ supplementary submissions at [17], especially (ii) and (iii), which are set out at [21] of these reasons, the second ground of appeal is intimately connected with the first ground of appeal.  To this extent it also cannot succeed.  The Tribunal did not ignore important parts of the appellants’ claims.  Rather, it assessed those claims and rejected them for the reasons given.  VGAC is of no assistance to the appellants.  It was a decision of a federal magistrate on the facts of a particular case.  The only similarity is the applicants in that case were Latvian residents of Russian ethnicity.  The persecution which they feared was the denial of their human rights alleged to include their access to medical services and the right to own property.  The federal magistrate held that the Tribunal had misinterpreted the concept of persecution by limiting it to serious physical harm.  By so doing the Tribunal failed to take account of the appellants’ claims of persecution by reason of a denial of their basic human rights.  In the present case, the appellants rested their claims on the failure of police protection against extortion and violent assault, that is to say, criminal activities.  This claim was assessed by the Tribunal and rejected.  The present case is not one in which the Tribunal ignored the claims of the appellants.  Thus, the second ground of appeal is also bound to fail.

The State Protection Finding

27                  A further obstacle to the appellants’ success is that the Tribunal found, at 25 of the Tribunal decision, that the appellants could “avail themselves of the protection of Latvian authorities”.  This finding was not challenged.  It was an independent ground by which the Tribunal rejected the appellants’ claims.  In other words, even if the appellants had satisfied the Tribunal that the alleged extortion had occurred, and that they had been attacked, the Tribunal was satisfied that the protection of the State was available.  Unless the appellants successfully challenged this finding, they could not succeed on the appeal.

The s 36(3) Finding

28                  Finally, the Tribunal said in relation to the husband at 27 of the MZKAI decision:

An alternative and important obstacle for the applicant, of course, is that because of his current Russian visa his application appears to fall foul of section 36(3), which says that

Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

Even if it could be said that the applicant would be persecuted in Latvia (which the Tribunal does not accept) he was able to enter and reside in Russia.  The sub-section does not apply if there is a risk of Russia re-fouling the applicant to a place where they risk persecution, but the evidence suggests that Russia has not re-fouled its nationals coming from the former Soviet countries.

29                  There was no challenge by the husband to this conclusion.  Without a successful challenge to this independent ground for rejecting the husband’s claims, his appeal could not succeed.

Irina’s Case

30                  Finally, the appellants referred to the Tribunal decision in Irina’s case.  This was determined by a differently constituted Tribunal on 28 April 2004.  The Tribunal found that Irina was generally credible.  The appellants argued that this decision shows that if the Tribunal in the present case had given them notice of its doubts concerning their credibility, those doubts would have been satisfied.  As I have already determined, the Tribunal was not obliged to tell the appellants the way it was thinking about the evidence led by them.  But, in any event the evidence in Irina’s case was different from the evidence given in the present case.  It may be that that arose from the fact that Irina’s case was heard in April 2004 and some of the unusual facts of that case may have emerged over the years since August 2002 when the Tribunal heard the present case.  Whilst the decision in Irina’s case does not affect the resolution of the legal issues presented by this case, the fact that Irina was accepted as a refugee and the appellants were not, in circumstances where there seems to be a degree of commonality about the background circumstances and events, might suggest to the respondent that, if the appellants were to approach her (and particularly if Irina agreed to give evidence in support of them), that they should be permitted to bring a further application for a protection visa: ss 48A(1) and 48B of the Act.

conclusion

31                  As the grounds of appeal relied upon by the appellants are bound to fail it is pointless to grant the appellants leave to reinstate the appeal or leave to rely upon the new grounds of appeal not raised before the Federal Magistrate.  These applications must be dismissed.  It follows that the respondent should get her costs.  There remains a question, however, as to who should pay those costs.  There may be a case that Mr Volonski should contribute to those costs as a result of the way the appeal was handled.  I will reserve the question of costs at this stage to allow that question to be ventilated if necessary. 

Associate:

Dated:              4 August 2005