SZAPO v Minister for Immigration
[2004] FMCA 306
•6 May 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAPO v MINISTER FOR IMMIGRATION | [2004] FMCA 306 |
| MIGRATION – Review of RRT decision – where applicant US citizen of Chinese ethnicity – where applicant seeking protection in Australia due to his fear of terrorist attacks being carried out against USA – where Tribunal focused on ability of USA to provide effective state protection – whether Tribunal considered if applicant’s fear was persecution for a Convention reason – whether there would be any utility in ordering that the RRT re-hear the matter. |
| Applicant: | SZAPO |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 834 of 2003 |
| Delivered on: | 6 May 2004 |
| Delivered at: | Sydney |
| Hearing date: | 6 May 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| for the Applicant: | Applicant in person |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant to pay respondent’s costs in the sum of $4,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 834 of 2003
| SZAPO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant in this matter is a United States citizen of Chinese ethnicity. He arrived in Australia on 29 September 2001. On 7 November 2001, he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural an Indigenous Affairs. On 25 March 2001, a delegate of the Minister refused to grant a protection visa and on 27 April 2002, the applicant applied for a review of that decision. The applicant was invited to an interview with the Tribunal and to give evidence, which he did on 27 March 2003.
The Tribunal made its decision on 28 March 2003 and handed it down on 17 April 2003. The Tribunal determined to affirm the decision not to grant a protection visa. In his application for asylum the applicant set out the reasons why he left the United States [CB 17]. He said that this was because he lived in New York and that city had been attacked by terrorists on 11 September, a few days before he left. He said that he had suffered mental stress and physical disturbance from inhaling burning smoke which was infused with the smell of the dead bodies from the World Trade Centre.
In response to the question, what he feared might happen to him if he returned to the United States, he was afraid of further terrorist attacks, particularly attacks using biological weapons including anthrax and other chemicals. In response to the question, who he thought might harm him if he went back, he claimed that the world's terrorists may harm him, possibly attacking a nuclear plant. He said that this would happen if he went back because he was a New York resident and New York was the first target of terrorists.
In response to the question:
“Do you think the authorities of that country can and will protect you if you go back? If not, why not?”
He responded:
“Absolutely not. Our authorities cannot protect us.”
When the matter was considered by a delegate, the applicant was provided with certain information concerning America's response to the terrorist action and the delegate discussed in its findings [CB 38] – [CB 41] the efforts that the United States was taking to prevent a further incident of the type which occurred on September 11. At [CB 41], the delegate in his decision said:
“Accordingly, after having carefully considered all the evidence before me, I find that the applicant does not have a well founded fear of Convention related persecution in the United States. Given this finding, it is unnecessary for me to consider whether the applicant's fears of harm are of sufficient gravity to amount to persecution or whether the applicant fears harm for a convention related reason; accordingly, I make no findings on these issues.”
When the matter came before the Tribunal, it followed exactly the same formula as the delegate. It did not consider whether the applicant was alleging a fear of persecution for one of the Convention reasons or, whether within that definition, he was a member of a particular social group. It did not consider whether what he feared would amount to persecution. It went straight to a detailed consideration of the ability of the United States to protect its citizens so far as what constituted adequate or effective state protection within the reported decisions of the Australian courts.
The Tribunal came to the conclusion that there had been no reports of any real or attempted terrorist attacks in the United States since the outbreak of the war in Iraq, which would indicate that operation Liberty Shield, launched on 17 March 2003, and other counter terrorist measures in the United States had been effective in preventing terrorist attacks. It went on to say:
“Fourthly, there is no evidence before the Tribunal to indicate that protection would not be available to the applicant in the reasonably foreseeable future. On the whole of this evidence, the Tribunal finds that the applicant has benefited from, and will continue to benefit from, adequate or effective protection from terrorist attack in the United States. Therefore, since the protection of the United States is available, and there is no ground based on a well-founded fear for refusing it, the applicant is not in need of international protection and is not a refugee.
Although the Tribunal sympathises with the applicant's plight, caused by the tragic events of 11 September 2001, it is not satisfied that the applicant faces a real chance of harm amounting to persecution. The Tribunal therefore finds there has been no failure of State protection in the United States and therefore his claims do not bring him within the Refugees Convention. As the Tribunal finds that the applicant's fear is not well founded, it is not necessary to address whether the harm feared is selective or discriminatory or for a Convention reason.”
Whilst it might be considered by some that the Tribunal has put the cart before the horse in not considering whether the applicant had any claims to be a refugee on the grounds that the persecution he feared was for a Convention reason, the fact is that no such claim was put forward by the applicant. As Mr Reilly said in his submissions to me in regard to the application to this court, there is no scintilla of a legal argument made.
The applicant addressed me only on his reasons for wishing to remain in Australia. When I gave him an opportunity to address me in regard to any alleged error on the part of the Tribunal, he told me that he could not find any error. I think that the applicant is correct. Whilst the Tribunal would appear to have adopted a slightly unusual way of dealing with this claim, that does not make the decision one in which jurisdictional error can be identified. It would seem to me that even if jurisdictional error could be identified in that approach, there would be no utility in granting review because unless the applicant is a member of the social class of all United States residents, there is really no Convention nexus to his fear and if the matter was reconsidered by another Tribunal the result would undoubtedly be the same.
For those reasons I dismiss the application. I order the applicant pay the respondent's costs, which I assess in the sum of $4,000 pursuant to part 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 18 May 2004
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