SZCCF v Minister for Immigration

[2006] FMCA 408

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCCF v MINISTER FOR IMMIGRATION [2006] FMCA 408

MIGRATION – Review of decision of RRT – where the Tribunal was unable to reach a state of satisfaction – where the applicant was unable to articulate a case for review of the Tribunal’s decision.

Migration Act 1958 (Cth), s.426A

NAVX v Minister for Immigration  [2004] FCA FC 287

Applicant: SZCCF

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

File Number: SYG 2675 of 2003

Judgment of: Raphael FM

Hearing date: 17 March 2006

Date of Last Submission: 17 March 2006

Delivered at: Sydney

Delivered on: 17 March 2006

REPRESENTATION

Applicant in Person

Counsel for the Respondent: Mr I McInerny

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs assessed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2675 of 2003

SZCCF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Mongolia.  She arrived in Australia on

   
   

   26 December 2001.  On 25 January 2002 she lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.  On 20 June 2002 a delegate of the Minister refused to grant a protection visa and on 16 July 2002 the applicant applied for review of that decision. The applicant was represented by a migration agent and at CB 53 there is a copy of a form which she completed making the migration agent her authorised recipient for all correspondence about her case. 

2. On 4 August 2003 the Tribunal wrote to the applicant informing her that it had considered the material before it in relation to her application but was unable to make a decision in her favour on that information alone.  The applicant was invited to a hearing on

   
   

   18 September 2003. The letter was addressed both to the applicant and to her migration agent, the authorised recipient. The letter which went to the applicant was returned, but the letter to the migration agent was received, because on 19 August 2003 the migration agent wrote to the Tribunal informing it that he had received a copy of the invitation, had tried to contact the applicant, but found that the last phone number she had given him was disconnected. He said that he had sent a letter to the address last provided by her but no response had been received. The Tribunal therefore proceeded pursuant to the provisions of s.426A Migration Act 1958 (Cth) to determine the application without taking any further steps to enable the applicant to appear before it. I am satisfied that all the provisions of the Act and regulations in relation to the delivery of the hearing invitation were complied with.

3. The Tribunal describes the applicant's claims for protection at CB 73:

   “The Applicant left Mongolia because she feared persecution as a member of a particular social group.  She actively agitated and fought against the widespread trafficking of women for prostitution.  A well organised structure in Mongolia runs this criminal business and targets unemployed girls who want to work overseas.  The Applicant actively participated in a support group aimed at preventing sex slavery; the group's main activities were informing and educating targeted girls about life overseas.  The Applicant claimed that if she returns to Mongolia she will face the same persecution she was subjected to before she left.  She was threatened by female traffickers on many occasions and they demanded she cease her activities.  She was physically attacked a few times, claimed that members of the organised crime groups promised to kill her if she continued her activities and she was warned that she would be seriously punished if she sought protection from the authorities.  She claimed that organised crime groups involved in women trafficking receive a huge profit from the business and will do whatever is needed to keep the business operational.  They can easily eliminate anyone who spoils their efforts.  She claimed that the authorities will not protect her, as they do not have the means to do so, that there is no law in Mongolia against women trafficking and that organised crime groups have connections with the law enforcement agencies.”

4. The Tribunal noted that the delegate had written to the applicant about these claims on 15 March 2002 and invited comment upon certain independent country material.  No response was received from the applicant.  The Tribunal noted that independent country information had come to hand that indicated there had been changes to the criminal code in Mongolia, so that people trafficking was now a crime.  The Tribunal noted that from independent country information there was nothing to suggest that the government persecuted members of anti-trafficking groups or that the law enforcement agencies were involved in criminal syndicates.

5. The Tribunal determined the matter on the basis of the information before it.  It concluded that it was not able to reach the required state of satisfaction at CB 74:

   “…This is because the Tribunal finds the applicant's claims extremely vague and lacking in useful detail.  For example, there is no useful information about the unnamed support group or about the applicant's actual activities within that group.  Also, the applicant claimed to have been physically assaulted and threatened, yet there is no information at all about any of these incidents.  The delegate noted that the applicant's claims were very vague and unsupported, yet the applicant did not respond to the delegate's letter about this, nor did she provide any additional when she sought review.”

6. The applicant filed an application in this court seeking review of the delegate's decision on 5 December 2003.  She stated that the Tribunal had erred in law by not accepting the facts that there are illegal persecutions in Mongolia.  Upon an order of the court at the directions hearing, she filed an amended application, in which she stated that the Tribunal failed to apply the correct test:  the Tribunal failed to consider whether the failure by the state to provide protection to the applicant constituted persecution for a Convention reason.  Of course, there is no necessity for a state to provide protection to a person who is not being persecuted and so, in order for the Tribunal to be required to make an assessment of the availability of state protection, it has to be satisfied that there is something to protect the applicant from.  In this case the Tribunal was unable to reach such a state of satisfaction, for the reasons expressed and set out herein and in the Tribunal's own decision. 

7. The justification for the attitude taken by the Tribunal can be found in the decision of the Full Bench in NAVX v Minister for Immigration  [2004] FCA FC 287 at [5]:

   “In assessing the adequacy of these reasons, it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information.  Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution.  Having found that the outline was not sufficient to satisfy it that the appellant had a well founded fear of persecution, it could do little more than offer him an opportunity to elaborate.  When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.”

8. The applicant appeared before me today.  I quite understand that she does not fully comprehend the intricacies of Australian administrative law, nor would she have a clear idea of the meaning of jurisdictional error, few of us do.  However, she must make some case because none is really contained in her written applications.  She was unable to provide me with any assistance.  I am unable to reach a state of satisfaction that the Tribunal fell into jurisdictional error, just as the Tribunal was unable to reach a state of satisfaction that the applicant was a person to whom Australia owed protection obligations. It follows that I must dismiss this application. I order that the applicant pay the respondent's costs, which I assess in the sum of $4,000.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  23 March 2006