NAKE v Minister for Immigration

[2003] FMCA 392

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAKE v MINISTER FOR IMMIGRATION [2003] FMCA 392

MIGRATION – Review of RRT decision – application for protection visa – whether any jurisdiction error in decision of RRT.

Applicant: NAKE

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 598 of 2003

Delivered on: 29 July 2003

Delivered at: Sydney

Hearing date: 29 July 2003

Judgment of: Baumann FM

REPRESENTATION

Applicant: Self represented

Solicitor for the Respondent: Ms S Hanstein of Blake Dawson Waldron

ORDERS

1. That the application be dismissed.

2. That the applicant pay the respondent's costs fixed in the sum of $4000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 598 of 2003

NAKE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant, who is a citizen of the Republic of South Korea, arrived in Australia on 9 March 2002 on a legally obtained passport.  Shortly thereafter on 22 April 2002 he lodged an application for protection (Class XA) Visa under the Migration Act 1958 (“the Act”). 

2. On 30 May 2002 a Delegate of the respondent refused the visa resulting in an application to the Refugee Review Tribunal (“the RRT”).  On
   7 January 2003 the RRT affirmed the Delegate's decision.

3. The applicant maintains he is a person to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees protocol.  The basis for his claim that he has a well founded fear of persecution for a Convention reason can be summarised as follows: 

   a)he is 37 years of age and worked as a Customs Officer in Seoul between January 1986 and February 2002;

   b)during his employment as a Customs Officer he became aware of corruption and criminal activity in the Government associated with senior Customs Officers and because he was not willing to get involved, he was intimidated by other Customs Officers;

   c)he says he was under investigations by Customs for suspected smuggling because of forged documents created by his intimidators;

   d)he says he has different political opinions to some public officer in government and arranged through a relative in the Passports Office in Bangkok to secure a passport and to leave the country; and

   e)he fears if he returns to South Korea he will be investigated again and will be wrongly imprisoned.  He does not think the authorities in South Korea will protect him from persecution.

4. After providing further information in response to a request from the RRT, the applicant elected not to give any oral evidence at the hearing on 7 January 2003.  The RRT found that the applicant's claims did not disclose a link to the Convention, not relating to his religious beliefs or to his nationality, race or membership of any particular social group. 

5. On the totality of the evidence, the Tribunal was not satisfied that the applicant was threatened in the manner claimed by him or that he would face persecution if he were to return to South Korea now or in the reasonably foreseeable future.  The RRT cogently analysed the evidence before it and I am satisfied that the ultimate conclusion was open to it on that evidence.

6. By application filed 3 March 2003, the applicant sought “re-assessment” by the Court on the grounds that:

   a)the decision by the RRT was induced by actual bias of the officer; and

   b)there was no evidence or other materials to justify the making of the decision. 

7. Despite being directed to file any amended application and also a written submission the applicant did neither.

8. At the hearing before me today arrangements were urgently made for the applicant to appear by telephone.  He was not represented although an interpreter was available.  He indicated he had advised his previous legal adviser and sought to advise the court that he wished to discontinue the proceedings and had attempted to file a notice which was not accepted by the Registry.

9. I gave the applicant through the interpreter an opportunity to tell me anything which might support his claim not already available to the Department.  He said that he had nothing to say.  There is no evidence of bias.  I remind myself the Court cannot review the merits of the Tribunal's decision (Miea v Wu Shan Liang (1996) 185 CLR 259 at 272) and there is no error of law, let alone jurisdictional error if the Tribunal made a wrong finding of fact (Abebe v Commonwealth (1999) 197 CLR 510 at [137] ).

10. I'm satisfied that the RRT made no legal error going to jurisdiction in coming to its decision. In addition, the decision of the RRT was a bona fide attempt to exercise its powers, the decision clearly related to the subject matter of the Act. I find that the decision of the RRT is a privative clause decision having regard to the decision of the High Court in, Plaintiff S157 of 2002 v The Commonwealth (2003) HCA2. 

11. In the circumstances I will dismiss the application.  I am satisfied that an order for costs should be made.  I will order that the applicant pay the respondent's costs fixed in the sum of $4000.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Baumann FM

Associate: 

Date: