SZCXX v Minister for Immigration
[2004] FMCA 649
•7 September 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCXX v MINISTER FOR IMMIGRATION | [2004] FMCA 649 |
| IMMIGRATION LAW – Appeal of RRT’s decision not to grant refugee status – no ground of jurisdictional error made out – application dismissed. |
| Applicant: | SZCXX |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 644 of 2004 |
| Delivered on: | 7 September 2004 |
| Delivered at: | Sydney |
| Hearing date: | 7 September 2004 |
| Judgment of: | Baumann FM |
REPRESENTATION
Applicant appearing in person
| Counsel for the Respondent: | Mr Rielly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That the application be dismissed.
That the applicant pay the respondent’s costs fixed in the sum of four thousand five hundred dollars ($4,500.00).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
SZ 644 of 2004
| SZCXX |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(settled from ex tempore reasons)
Background
The applicant is a Taiwanese applicant who arrived in Australia with his de facto spouse and four children on 15 November 2002. He and his family were taken into detention on 9 October 2003 and shortly thereafter on 14 November 2003 he lodged an application for a protection visa. On 19 November 2003 the delegate refused the application and the applicant then filed an application to the RRT. It is clear that the applicant is the only one of his family to have made a specific claim under the 1951 Convention relating to the status of refugees and the 1967 Protocol.
On 19 February 2004 Member Toohey from the Refugee Review Tribunal (the “RRT”) heard the matter and gave reasons why the delegate's decision was affirmed. This application was filed within time on 10 March 2004 and seeks review of that decision. The Tribunal accepted the claims of the applicant that he was a member of a particular social group in Taiwan with mental illness and also that he was unable to get two books published which were critical of western medicine.
It seems, in the absence of any evidence, that the applicant today asserts that he does not suffer any mental illness. Importantly, in my view, the RRT accepted that the applicant was capable of providing instructions to his representative advocate. An earlier request to the Department by the Refugee Advice and Casework Service sought a psychological assessment. It was not carried out, however, the RRT made a specific finding as a preliminary issue that the applicant was:
“...able to understand the nature of the Tribunal proceedings and their purpose and to follow their course.”
In lengthy and well-structured reasons, the member dealt with the evidence fully, and at paragraphs 3 and 4 of the respondent's submissions, which I adopt for the purposes of these reasons, the following summary is given:-
“3.The Applicant claimed to fear persecution in Taiwan for reason of his political opinion because of his inability to get books published that he had written, and as a member of a particular social group of persons in Taiwan with mental illness. The Applicant’s specific claims are set out at CB 106-111. The Applicant’s main reason for leaving Taiwan was to enable his children to get a better education: CB 110.3. He also claimed to fear harm because he would have debts in Taiwan having borrowed money to come to Australia: CB 109.9.
4.The Tribunal accepted the Applicant’s claims, but having regard to independent country information concerning Taiwan (discussed with the Applicant at the hearing: CB 110.1) found that he had not suffered harm amounting to persecution in the past within s 91R of the Act, nor that there was a real chance that he would do so in future. The Tribunal also did not accept that the Applicant’s past experiences in Taiwan had been because of his political opinion, membership of a particular social group or any other Convention ground. See generally CB 114-118. The Tribunal also noted that the Applicant’s fear of harm because of owing debts would not be Convention related, being at most a fear of criminal revenge: CB 118.2 (a conclusion consistent with the observations in MIMIA v Abdi (1999) 87 FCR 280 (FC) at [44-46]).”
The apparently self-prepared application for review filed 10 March 2004 is difficult to decipher. Firstly, because it is handwritten and secondly, because it contains an eight page handwritten statement which appears to be a critique of the decision of the member. Suffice it to say, that almost the entirety of the critique seeks to challenge the merits of the Tribunal's reasons.
Grounds of Appeal
I did my best today to explain to the applicant that this court does not have the jurisdiction to review the merits of the earlier decision. The applicant was directed on 2 April 2004 to file and serve an amended and fully particularised application supported by affidavit. He has not done so, nor has he filed any written submissions. I understand the applicant is in detention and has required the assistance previously of a Mandarin speaking interpreter and that may have made it difficult for him. Nonetheless, I tried to distil from the filed application any grounds for the claim of relief beyond the general assertion made that:
“Judge made mistakes in law. Judge did not judge me according to evidence, common knowledge, medical knowledge, basis of human right.”
The issues the applicant raises may be summarised as follows:
a) The Tribunal was wrong in finding that he was not "blocked" from publishing his books.
b) The Tribunal was wrong in finding that the reason the applicant came to Australia was to provide his children with a "better education". He asserts Taiwan offers a better education, particularly in mathematics.
c) The medical statements relating to the applicant's "bleeding ear and shaking hand" was misinterpreted by the Tribunal. He says they were not symptomatic of mental illness and he alleges the authorities in Taiwan labelled the applicant "as crazy" and made his "life miserable".
d) The Government of Taiwan "copy my idea" for the book which made them "rich". He alleges this is official persecution by "take advantage from me and threat my life".
e) He contends that because of his criticisms of western medicine (and therefore of the Taiwanese elected Health Ministers who supported those principles) his oldest son had two permanent teeth removed by a Taiwanese dentist. The applicant says this is further evidence of why he has a well-founded fear of persecution within the meaning of the Act and he says it is similar to the treatment he suffered 20 years ago.
The findings and reasons of the Tribunals are logically analysed and explained. The evidence available to the Tribunal in my view, made the findings abundantly open to the member and of course, it is trite to say that this court cannot review the merits of that decision. The member found that the applicant may well have:
“...received poor or even negligent treatment for his ear and hands but I'm not satisfied any failure of treatment or mistreatment was directed at him for reasons of his actual or imputed political opinion.”
or because of:
“His perceived mental illness.”
Furthermore, claims of failing to get his books published; dismissal from employment; being regarded by authorities as "mentally ill"; being treated, in the past, in a discriminatory manner in the work place, even if accepted by the Tribunal (as many were) did not have any nexus with a well founded fear of persecution for a convention stipulated reason.
For these reasons I cannot detect any jurisdictional error in the process and I am as a result bound to dismiss the application.
It is appropriate in this case that costs follow the event. I will order that the applicant pay the respondent's costs which I fix in the sum of $4,500.00.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Baumann FM
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