SZBYT v Minister for Immigration - [2005] FMCA 1717

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBYT v MINISTER FOR IMMIGRATION

[2005] FMCA 1717

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958, ss.424A, 426A

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306
NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73

Applicant:

SZBYT

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG2528 of 2003

Judgment of:

Barnes FM

Hearing date:

14 November 2005

Delivered at:

Sydney

Delivered on:

14 November 2005

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Mr S Lloyd

Solicitors for the Respondent:

Clayton Utz

ORDERS

That the application is dismissed.
That the applicant pay the respondent's costs fixed in the amount of $4,650.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2528 of 2003

SZBYT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 6 November 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The applicants before the Tribunal were husband and wife and two daughters, who are citizens of Korea. The applicant in the present proceeding is the husband. The applicant arrived in Australia in May 2000. His family arrived subsequently. In July 2002 they applied for protection visas. Only the applicant husband made specific claims under the Refugees Convention. The applications were refused. They sought review by the Tribunal on 1 November 2002.
On 26 August 2003 the Tribunal wrote to the applicant inviting him to attend a Tribunal hearing, advising that it had considered the material before it in relation to the application and was unable to make a favourable decision on that information alone and indicating that if the applicant did not attend the hearing and the Tribunal did not postpone it, it could make a decision on the case without further notice. The Tribunal reasons for decision record that no response was received from the applicant and the letters were not returned unclaimed.

A Tribunal file note of 8 October 2003 (the date specified for the Tribunal hearing) records a telephone call between the Tribunal and the migration agent designated in the review application in which it was confirmed that the hearing papers and other letters had been received. The applicant did not appear before the Tribunal on the day, time and place which the hearing was scheduled to take place.
The Tribunal proceeded to make a decisions on the review without taking any further action to enable the applicant to appear before it.
In its reasons for decision the Tribunal outlined the applicant's claim as appearing in the protection visa application, in particular his claim that if he had to return to Korea he would be punished for his political views for having expressed and published that opinion in the past. He claimed to have been politically active and involved in political journalism and to be in opposition to South Korean foreign policies, being an advocate of reunification with North Korea.
The Tribunal noted independent country information in relation to the treatment of unification groups in Korea. It accepted that such information supported, ‘in a general way’ the applicant's claims about detention and the arrest of some citizens for acts viewed as supporting North Korea and reunification, for unauthorised travel to North Korea and in relation to arrests for discussing, publishing or having pro-North Korean views.
However, because of the insufficiency of the applicant's evidence and, in particular, that his written claims were vague and lacking in detail, the Tribunal was not satisfied that he had a well founded fear of being persecuted in Korea. It did not accept ‘on the evidence presently available’ that the applicant fled Korea because he feared imprisonment, that he would be deprived of his civil liberties or harmed for his political views and publication of those views or that he would be otherwise persecuted for past political activism if he returned to Korea.
The Tribunal noted from departmental movement data records and passports lodged with the protection visa applications the lengthy period of time between the applicant’s arrival in Australia and his application for a protection visa. It found that this did not support the applicant's claim that he fled Korea and could not now return there because of persecution fears. It did not consider his explanation (that it was extremely difficult to get refugee status in Australia) explained the delay. Nor did it accept that he had been arrested and detained from 1988 to 1990. It noted that he remained in Korea until 2000 and left on a passport he had no difficulty obtaining in 2000. It did not accept his claim that he had lost his passport and was reluctant to apply for a replacement because of his political profile.
The Tribunal found that specified aspects of the applicant’s claims (in particular about political activism and persecution since 1990) were vague and lacking in detail. It was not satisfied the applicant came to Australia to seek protection from persecution in Korea. On the basis of the evidence available the Tribunal did not accept the applicant's claims that he was threatened by the government authorities with detention and other harm because of his political activism. It was not satisfied that he had a well founded fear of persecution in Korea for the purposes of the Refugee Convention.
The applicant sought review by application filed in this court on 21 November 2003. He relies on an amended application filed on 6 July 2004. He filed an affidavit on 6 July 2004 which repeats his claims to be entitled to a protection visa. Such claims seek merits review which is not available in this court.
The amended application details the chronology of events. The first ground is that in making the decision the Tribunal's finding of a number of jurisdictional facts was not reasonable (in particular the findings that the applicant and family were not victimised by the Korean authorities, that there was no persecution of the applicant and his family in Korea and that the applicant was not previously and/or currently a practising pro-North Korean activist). The short answer to this claim is that the Tribunal did not find any of the facts alleged. Rather the applicant's claims were not accepted because they were vague and lacking in detail. The Tribunal did not make positive findings of facts as contended in the particulars to this ground. (See NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 at [4] – [5]; Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [24]). On the basis of the evidence available it did not accept the applicant's claims and was not satisfied that he had a well-founded fear of persecution.
The second ground is that the Tribunal ignored relevant considerations when making its decision. The particulars of this ground contend that the Tribunal did not take, or adequately take into consideration particular aspects of the applicant's claims. However the Tribunal summarised the essence of the applicant's claims as put in connection with his protection visa application, in particular in the letter accompanying the protection visa application. Reading the Tribunal decision fairly and as a whole it did take into account all of the applicant's claims. However, it found them to be lacking in detail and therefore unpersuasive.
The third ground in the amended application is that there has been a constructive failure by the Tribunal to exercise jurisdiction. This repeats the particulars from the first two grounds. However, it has not been established that the Tribunal erred in the manner contended in either of the earlier grounds or that there has been a constructive failure by the Tribunal to exercise jurisdiction.
The next ground is that in making the decision, the Tribunal denied the applicant natural justice or procedural fairness. The first aspect of this ground is that the Tribunal made the decision without regard to relevant documents and/or without allowing the applicant an opportunity or reasonable opportunity to be heard in relation to adverse allegations made against him by the Tribunal. Such ground is not established. The Tribunal met its obligations to invite the applicant to a hearing. There is nothing to suggest that it failed to comply with any of the procedures under the Migration Act 1958 in that respect or that it was not entitled to proceed as it did under section 426A of the Act without taking further steps to enable the applicant to appear before it. No particular documents have been identified as the ‘relevant documents’ referred to in this ground. I note in this respect that when given the opportunity to make submissions today, the applicant indicated that he had nothing to say.
There were no ‘adverse allegations’ made against him by the Tribunal and the Tribunal was not under an obligation to put its preliminary reasoning or thought processes to the applicant for comment. He had the opportunity to attend the Tribunal hearing. He did not do so and no lack of procedural fairness is established in the manner in which the Tribunal dealt with his case.
There is also a contention that the Tribunal was or appeared to be biased, apparently on the basis that while some of the independent information did support the claim that some citizens continued to be arrested for discussing reunification and in other circumstances, at the same time the Tribunal did not accept the applicant's claims as to the treatment he claimed to have experienced.
However in light of the Tribunal's lack of satisfaction because of the vagueness and lack of detail in the specific claims made by the applicant, such statements are not contradictory. They do not establish bias towards the applicant on the part of the Tribunal. Rather, as the Tribunal indicated, it could not be satisfied of the applicant's claims on the evidence presently available because of the vagueness and lack of detail in the claims as presented.
In addition to the claims raised in the amended application, I raised with counsel for the respondent the possible application of the decision of the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24, although I note in that respect that no such claim was made by the applicant and nor was any evidence to support such a claim put before the Court.
In that respect, counsel for the respondent relies on the decision of Hely J in SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306, in particular in relation to the meaning of information in section 424A(1)(a) of the Migration Act 1958 in circumstances where a Tribunal refers to material in the original application for a protection visa and the Departmental file. In that case, as in this case, the central reason for the Tribunal findings was a failure by the applicant to provide sufficient detail in connection with the applicant's claims. His Honour concluded (at [13] – [15]) that the Tribunal's assessment of the inadequacy of the applicant's statement was not information disclosable under section 424A.
In this instance, although the Tribunal referred to the departmental movement records and the passport details in relation to the matters such as time the applicants entered Australia and when they applied for protection visas, it did so in the context of finding that such details did not support the applicant's claim that he fled Korea and could not now return there because he was being persecuted and that the claimed persecution would continue. While it averted to those matters, what was ‘integral’ (See SZDXC at [16]) to its reasoning process was the inadequacy (in the sense of vagueness and lack of detail) in the information provided by the applicant in support of his claims and the fact that, as in SZDXC, the applicant was invited to attend a hearing by a letter which made it clear that the Tribunal was unable to make a decision in his favour on the basis of the information before it but did not accept the opportunity to elaborate on the information provided. When the applicant failed to accept the opportunity to attend a hearing to elaborate on his claims, the inevitable consequence was the rejection of his application. Similarly in this case for the reasons given by Hely J in SZDXC, the Tribunal did not fall into jurisdictional error.
As no jurisdictional error has been established the application must be dismissed. I will hear submissions in relation to costs.

RECORDED : NOT TRANSCRIBED

The applicant has been unsuccessful. The respondent seeks that he meet her costs in the sum of $4,650. The applicant seeks a discount on the basis that the amount of costs sought is a big burden because he has to leave Australia. I consider that the amount sought is appropriate in light of the nature of this and other similar matters. There is nothing in the circumstances to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 1 December 2005.