SZCNH v Refugee Review Tribunal
[2006] FMCA 712
•18 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCNH & ANOR v REFUGEE REVIEW TRIBUNAL & ANOR | [2006] FMCA 712 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visas – applicants claiming political persecution in South Korea – claims allegedly not considered by RRT in fact not put to the RRT – no reviewable error found – application dismissed. |
| Dranichnikov v Minister for Immigration (2004) 77 ALJR 1088 NABE v Minister for Immigration (2004) 144 FCR 1 |
| First Applicant: | SZCNH |
| Second Applicant: | SZCNI |
| First Respondent: | REFUGEE REVIEW TRIBUNAL |
| Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| File Number: | SYG140 of 2004 |
| Judgment of: | Driver FM |
| Hearing date: | 18 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 18 May 2006 |
REPRESENTATION
The First Applicant appeared in person and on behalf of the Second Applicant
| Counsel for the Respondents: | Mr J Smith |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicants are to pay the second respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG140 of 2004
| SZCNH |
First Applicant
SZCNI
Second Applicant
And
| REFUGEE REVIEW TRIBUNAL |
First Respondent
MINISTER FOR IMMIGRATION & ULTICULTURAL AFFAIRS
Second 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 handed down on 22 December 2003. The RRT affirmed a decision of the delegate of the Minister not to grant the applicants protection visas. There are two applicants, a husband and wife, both from South Korea. The relevant claims were made by the first applicant, the applicant husband. He was the only applicant who appeared at today's hearing. I otherwise adopt as background paragraphs 2 to 5 of the written submissions prepared on behalf of the Minister for Immigration:
The applicants are citizens of South Korea who arrived in Australia on 30 January 1999 and lodged an application for protection visas on 7 January 2003. The applicant husband (applicant) claimed to fear persecution because of his conservative political opinion.
On 30 June 2003 a delegate of the first respondent made a decision refusing to grant the applicant a visa and on 4 August 2003 the applicants applied to the RRT for review of that decision. The applicant attended a hearing conducted by the RRT on 7 November 2003 and the RRT handed down its decision on 22 December 2003.
RRT’s decision
There were two bases for the RRT’s decision: first, it found that the threats claimed by the applicant were never made [court book, page 103.1]; secondly, it found that the applicant did not have a subjective fear of persecution [court book, page 103.3]. The first finding was based on information regarding the reaction of the Government to public criticism [court book, page 102.10] and also the fact that the applicant’s evidence as to what the threats were was vague [court book, page 103.1]. The second finding was based on the applicant’s travel history which came from the passports provided by the applicants to the RRT for the purposes of the review application [court book, pages 61-92].
For these reasons the RRT concluded that the applicant was not a refugee and affirmed the decision of the delegate.
The judicial review application filed on 19 January 2004, while purportedly setting out two grounds and eight particulars, in fact only raises one ground. That is an assertion that the RRT failed to consider the following claims made by the applicant. The first is that, as chief editor in charge of 200 reporters, the first applicant wrote newspaper editorials that were critical of the Korean government. Secondly, that the first applicant was then directed to stop being critical and detectives were retained to investigate him. Thirdly, that electronic listening devices were then utilised to monitor the first applicant's home and mobile telephone calls.
It transpired during the course of oral argument at today's hearing that these specific claims[1] were not in fact made to the RRT. Rather, they were claims which I understand the applicant would have made if he had been asked to. The problem appears to have been that the first applicant, although assisted by a migration agent, did not understand that it was his responsibility to put all relevant material in support of his application before the RRT. Likewise, in the proceedings in this Court, although the applicants were represented by solicitors until 20 January 2005, the first applicant told me that he did not understand that it was his responsibility to put before the Court evidence that he wished to rely upon in support of his application.
[1] In particular the second and third claims
As the specific claims alleged in the judicial review application were not put to the RRT, the RRT could not have erred in failing to consider them. I otherwise agree with and adopt for the purposes of this judgment, with necessary amendment, paragraphs 6 and 7 of the Minister's written submissions:
There is one ground in the application: that the RRT failed to consider three claims made by the applicant. There is nothing in the material before the Court to suggest that the second and third of those claims was in fact made. They do not arise by any implication from the written claims made in support of the visa application [court book, pages 7‑10] or the application for review [court book, page 49] and nothing in the RRT’s statement of reasons suggests that they were raised at the hearing [court book, pages 100 – 101]. Accordingly, they were not clearly articulated claims arising from established facts: Dranichnikov v Minister for Immigration (2004) 77 ALJR 1088 at [24], [95]; NABE v Minister for Immigration (2004) 144 FCR 1 at [55]. For this reason, there was no error made by the RRT in failing to deal with them.
The first claim in the general terms in which it was made was clearly dealt with by the RRT [court book, pages 102.8 – 103.2].
The applicant's fear of harm at the hands of the Korean government was expressed only in general terms in his protection visa application and his review application. The claims as put were considered by the RRT as is set out in its decision. There was no jurisdictional error and the decision of the RRT is hence a privative clause decision.
I will order that the judicial review application be dismissed.
The application having been dismissed, the Minister seeks an order for costs. The Minister claims costs on a party and party basis in the sum of $6,000. The applicant expressed surprise at the possibility of a costs order and said that he had no previous idea that he was at risk of such an order. That is surprising in view of his earlier legal representation. The costs claimed by the Minister are somewhat greater than usual in a case of this complexity. However, there have been three court events in this matter and in addition to the usual preparation work, because of the nature of the allegation in the judicial review application, the Minister's legal advisers prudently listened to the hearing tape of the RRT hearing.
I accept that $6,000 has been reasonably and properly incurred on behalf of the Minister when assessed on a party and party basis. I will order that the applicants pay the second respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $6,000.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 23 May 2006
0
3
0