SZCAJ v Minister for Immigration
[2005] FMCA 88
•4 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCAJ & ANOR v MINISTER FOR IMMIGRATION | [2005] FMCA 88 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicants claiming political persecution in Mongolia – no reviewable error found – application dismissed. |
Abebe v The Commonwealth (1999) 197 CLR 510
Minister for Immigration v Guo Wei Rong (1997) 191 CLR 559
NAVX v Minister for Immigration [2004] FCA 346
SJSB v Minister for Immigration [2004] FCAFC 225
SZAKV v Minister for Immigration [2004] FMCA 222
SZAKV v Minister for Immigration [2004] FCA 1160
First Applicant: Second Applicant: | SZCAJ SZCAK |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2590 of 2003 |
| Delivered on: | 4 February 2005 |
| Delivered at: | Sydney |
| Hearing date: | 4 February 2005 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicants appeared in person
| Solicitors for the Respondent: | Ms K Crawley Clayton Utz |
ORDERS
The application is dismissed.
The applicants are to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2590 of 2003
| SZCAJ |
First Applicant
SZCAK
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”). The decision was made on 14 October 2003 and was handed down on 6 November 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant and his wife protection visas. The two applicants are from Mongolia and had made claims of political persecution. I adopt as background paragraph 1, second occurring through to paragraph 6.5 of written submissions prepared on behalf of the Minister by Ms Markovic:
The applicants are a husband and wife. The applicant wife made no claims for protection independent of those of the applicant husband.
On 20 November 2002, the applicants, citizens of Mongolia, arrived in Australia.[1] On 17 December 2002, the applicants applied for protection visas[2]. On 20 May 2003, a delegate of the Minister refused the applications. [3] On 20 June 2003, the applicants applied to the RRT for review of the delegate's decision.[4]
[1] court book, pages 14 &53.
[2] court book, pages 1- 62.
[3] court book, pages 66 - 76
[4] court book, pages 77 - 80.
The applicants were invited to attend a hearing before the RRT on 14 October 2003 by letter dated 4 September 2003.[5] That letter was sent to the applicants and their authorised recipient and stated that the RRT had considered the material before it in relation to the applicants' application but was "unable to make a decision in your favour on this information alone".
[5] court book, pages 83 - 84.
On 8 October 2003, the applicants, through their authorised recipient, refused the RRT's invitation to attend a hearing and faxed a "Response to Hearing Invitation" form to the RRT indicating they did not wish to attend the scheduled hearing. On 27 May 2004, the RRT affirmed the delegate's decision. The applicants now seek judicial review of that decision.
The RRT's findings [6]
[6] court book, pages 6-7.
The RRT found that the applicant husband's claims were so vague and lacking in detail in several important respects that it was unable to establish the relevant facts.
The RRT noted that the applicant husband had provided no details or evidence of:
a)his membership of the Mongolian Democratic Party ("the Party");
b)when he joined the Party, his role in the Party or the nature and extent of the Party's political activities, other than a vague claim that he participated in all of the Party's protests;
c)why he remained in Mongolia two years after the Mongolian Popular Revolutionary Party ("MPRP") government was elected or why he did in fact leave; and
d)how the claimed mistreatment and harassment by authorities occurred.
The RRT also noted that the applicant husband left legally on his own passport indicating that he was not of adverse interest to the governing authorities.
The RRT referred to country information which indicated, contrary to the applicant husband's claims:
a)the government had been democratically elected in 2000; and
b)generally respected constitutionally guaranteed freedoms.
The RRT was unable to accept, on the basis of the evidence before it, that the applicant husband was a member of an opposition political party, that he was harmed by the MPRP or that he was of adverse interest to the Mongolian authorities. The RRT thus found the applicant did not have a well-founded fear of persecution now or in the reasonably foreseeable future.
The RRT also affirmed the delegate's decision in respect of the applicant wife as the outcome of her application was dependant upon the outcome of the applicant husband's application.
The applicants rely upon their application for judicial review filed on 28 November 2003. In that application, the applicants assert that the RRT erred in law by not accepting the fact that there are illegal persecutions in Mongolia. They assert that although in the Constitution citizens are granted rights of freedom of speech in assembly these are not respected in practice. The difficulty confronting the applicants is that they failed before the RRT because the presiding member was unable to accept on the sparse material before him that the applicant's claims were true. I agree with and adopt for the purposes of this judgment paragraphs 7-9 of Ms Markovic's written submissions:
The application contains one ground which is not particularised and is not a ground of review capable of revealing jurisdictional error. The respondent submits that the applicant, having chosen not to attend a hearing before the RRT, is now seeking to quibble with factual findings of the RRT, thereby seeking merits review of the RRT decision which is not available in this Court.
The RRT was essentially unable to be satisfied of the applicants' claims due to the paucity of information provided to it by them. The applicants were already on notice of the lack of information provided by them to support their claims, this being the primary reason why the delegate refused their application, In those circumstances and where the applicants refuse the RRT's invitation to a hearing, despite being put on notice of the inability to be satisfied of their claims, there is no error in the RRT's findings: see NAVX v Minister for Immigration [2004] FCA 346 and SZAKV v Minister for Immigration [2004] FMCA 222 (affirmed on appeal SZAKV v Minister for Immigration [2004] FCA 1160).
It is for an applicant to satisfy the RRT that the statutory elements for the grant of a visa have been established: Minister for Immigration v Guo Wei Rong (1997) 191 CLR 559. The RRT is not in a position of "contradictor", rather it is for the applicant to put forward whatever evidence s/he wishes in support of her/his claims and for the RRT to determine whether the applicant's claims are made out to its satisfaction: Abebe v The Commonwealth (1999) 197 CLR 510 at 576 and SJSB v Minister for Immigration [2004] FCAFC 225 at [15] - [16].
Even if the ground in the application could be characterised as an asserted jurisdictional error, it is not established on the record of the RRT proceedings. The applicants were not able to point to any other jurisdictional error having been committed by the RRT. On my own perusal of the court book no jurisdictional error is apparent to me.
Accordingly, the decision of the RRT is a privative clause decision and the application must be dismissed.
Costs should follow the event in this case. I accept Ms Crawley's submission that costs should be fixed in the sum of $3,000. There was no opposition from the applicants.
I will order first that the application be dismissed and that the applicants pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,000.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 9 February 2005
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