SZDYM v Minister for Immigration
[2005] FMCA 988
•22 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDYM v MINISTER FOR IMMIGRATION | [2005] FMCA 988 |
| MIGRATION – Review of decision of Refugee Review Tribunal – Tongan – constitutionality of Migration Act – application patent nonsense – no error of law – privative clause decision – application dismissed. Commonwealth of Australia Constitution Djalic v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 151 Tuitupou v Minister for Immigration & Multicultural Affairs [2000] FCA 197 |
| Applicant: | SZDYM |
| Respondent: | MINSTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1994 of 2004 |
| Delivered on: | 22 June 2005 |
| Delivered at: | Sydney |
| Hearing date: | 22 June 2005 |
| Judgment of: | Mowbray FM |
REPRESENTATION
| Advocate for the Applicant: | In person |
| Counsel for the Respondent: | Mr Reilly |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the respondent’s costs and disbursements of and incidental of the application fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1994 of 2004
| SZDYM |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment which has been revised and edited from a transcript. It relates to a decision of the Refugee Review Tribunal (the Tribunal) made on 26 May 2004 and handed down on
16 June 2004.
I preface my reasons for decision by concurring wholeheartedly with what Mr Reilly, counsel for the respondent, said during the hearing about the significant harm done to Tongan applicants by a migration agent called Mr Fanua. The applicant before me suffers from the same misfortune. Mr Fanua’s hand appears to have been instrumental in drafting the application to this Court, which, for the reasons I will give in a moment, is fatally flawed. Moreover from a legal point of view, it is patent nonsense. Mr Fanua has not turned up in Court for the hearing, but as Mr Reilly has said, the effect of his influence rebounds on unfortunate Tongan applicants whose claims before the Court are inevitably dismissed.
Background
The applicant is a citizen of Tonga who arrived in Australia on 27 February 2003 on a visitor visa. On 11 March 2004 she applied for a protection visa. On 12 March 2004 a delegate of the Minister refused the application. On 2 April 2004 she lodged an application for review. She then attended a hearing on 26 May 2004. Later that day the Tribunal affirmed the decision of the Minster’s delegate and that decision of the Tribunal was handed down on 16 June 2004.
Claims before the Department and the Tribunal
The applicant claims that she is fearful of going back to Tonga because of her political opinion. She does not trust the police and some government officials. She says that the political system is controlled in Tonga by the king, who has absolute power. Although she says that she has never been politically active before, she says that she would publicly criticise the political system were she to return to Tonga. This is because she supports the democratic movement led by a Member of Parliament, Mr Akilisi Pohiva.
The applicant is of the view that the political system in Tonga is undemocratic and should be overhauled. In support of her claims, she referred to the treatment of a resident of New Zealand and an influential leader of the democracy movement, Mr Alani Taione. Mr Taione had been imprisoned on returning to Tonga because he brought a banned newspaper into the country. She says that she fears the same fate for herself if she returned to Tonga.
Tribunal consideration and decision
At Court Book page 54 the Tribunal accurately summarised the claims of the applicant and then went on to provide its reasons for decision:
On the basis of the independent information set out above, I accept that there are restrictions on the rights of Tongan citizens to freely elect a government, and that the government seeks to restrict freedom of speech and the press through the use of defamation laws and legal restrictions. I am not, however, satisfied that such restrictions, of themselves, constitute the persecution of individual citizens of Tonga. I do not consider that they cause serious or significant harm or hardship of any kind to individuals, or that they seriously infringe dignity. I find that a significant pro-democracy movement exists in Tonga, and that it has members of parliament, access to the media, and the ability to express its views openly and freely, including by holding demonstrations. There is no evidence before me to suggest that any supporters of this movement have been subjected to persecution as a result of such expression of their views. While the government has sought to use the legal system to restrict the ability of pro-democracy leaders to criticise the government, it has attempted to do so using the legal system, which I accept is generally independent and affords a free and fair trial. In any event, even accepting that the applicant would in fact be an active participant in the pro-democracy movement if she returns to Tonga, I am satisfied that she would only engage in the low level activities of an ordinary supporter, and that these would not result in her persecution. I must say that in view of the applicant’s lack of past political activity, and the lack of sophistication apparent in her political views, it is somewhat difficult to accept her claim that she would become politically engaged on her return. However, accepting that she did, I am satisfied that the applicant would be able to freely express her political views in the manner she suggested, that is by attending meetings, without there being a real chance of her facing persecution as a consequence. I am therefore satisfied that the applicant does not have a well founded fear of persecution [in] Tonga for reason of her political opinion.
Consideration
The applicant’s amended application filed on 4 November 2004 sets out seven alleged grounds. In the preamble to that application the applicant claims that the proceedings involve a matter arising under the Australian Constitution or involving its interpretation. The applicant then sets out the constitutional issues which she says arise.
As an aside, I note that amongst other issues, she seems to assert that the Migration Act 1958 (Cth) (the Act) relies principally on the immigration and emigration power under s.51(xxvii) of the Constitution. In fact it is commonly accepted today that the Act relies on the naturalisation and aliens power in s.51(xix).
The seven grounds essentially are mere assertions unsupported by any reasoning process.
The applicant has also filed submissions which set out five points in which once again there is no reasoning for the assertions made. To a large extent the points merely repeat the assertions in her amended application. The application is fatally flawed as outlined by the respondent in her written submissions filed on 17 June 2005. I will examine briefly the alleged grounds in turn.
Ground one asserts:
It is unconstitutional for the Commonwealth Parliament to enact legislation under the Migration Act 1958 as per s 474 that prevents courts from reviewing administrative decisions which has positive effects of removing review rights for all Australian citizen, permanent residents, companies and businesses in immigration matters.
This claim that s.474 of the Act is unconstitutional is contrary to the High Court decision in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
Grounds two and three state:
(2) It is unconstitutional for the Commonwealth Parliament to enact legislation in the form Migration Act 1958 to abolish the rights to have a poor decision cheked by an independent umpire according to [here is it incomplete]
(3) The change to Migration law raises issues of deep constitutional sensitivity involving two basic principals - the rule of law require that any decision of governmentsshould be capableof being tested in a court of law - secondly both democratic theory and parliamentary sovereignty require that the final arbiter of any issue in Australia must be the elected parliament.
These appear to be further attempts to challenge the constitutional validity of s.474 of the Act. Its validity was upheld by the High Court in Plaintiff S157, although the Act’s operation may be somewhat different from that its sponsors had anticipated.
Ground four says:
It is unconstitutional for the CommonwealthParliament to enact legislation which authorises the making of law inconsistent with the provition of the Human Rights & Equal Opportunity commission Act 1986 (Cth).
As the respondent has said this argument erroneously seeks to elevate the Human Rights and Equal Opportunity Commission Act 1986 to one of constitutional status.
The ground is also otherwise misconceived because of the breadth of the Commonwealth power to make laws with respect to aliens under s.51(xix). For example in Djalic v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 151 at [66] the Full Court of the Federal Court said:
1. Section 51(xix) of the Constitution empowers Parliament to make a law providing for the deportation of aliens for whatever reason Parliament thinks fit, unless the Constitution otherwise prohibits the making of the law.
Ground four in the applicant’s amended application must also be rejected.
Ground five asserts:
It is unconstitutional for the Commonwealth Parliament to enact legislation in the form of Migration Act having an unjust effect on three Australian citizen children of the appellant.
There are a number of things that need to be said about this ground. The first is that there is no evidence before the Court, nor was there before the Tribunal, that the applicant has three Australian citizen children. It is clear that this ground is just borrowed from another applicant or rather “appellant” in that case.
The second point is that, as the authorities such as Molisi v Minister for Immigration & Multicultural Affairs [2001] FCA 420 and Tuitupou v Minister for Immigration & Multicultural Affairs [2000] FCA 197 make clear, there is no principle that empowers a Court to declare Commonwealth legislation or delegated legislation invalid on the ground that it considers the law unjust.
Ground six says:
It is unconstitutional for the Commonwealth Parliament to enact legislation in the form of Migration Act inconsistent with UN Treaties ratified by the Commonwealth under Racial Discrimination Act of the Commonwealth 1975.
Again this ground is not particularised and it is similar to the fourth ground. As the Full Court said in Tuitupou at [14]:
… there is no basis under Australian law for declaring invalid legislation or a regulation because it is said to be inconsistent with Australia's obligations under an international agreement ratified by this country but not incorporated by legislation into domestic law. This reflects the established proposition that international treaties or conventions do not give rise to rights or obligations enforceable under Australian law merely because Australia is a party to the treaty and has ratified them …
The seventh ground says:
Section 39B of the Judiciary Act 1903 is involved in the proceeding.
This does not establish any ground of review.
In the applicant’s submissions there is only one further matter that is not dealt with in the amended application and that is at point 3:
The Refugee Review Tribunal totally failed to take into consideration that the Term persecution is not defined by the Convention. The applicant is being Feared of persecution if she forced to return to Tonga on political opinion.
Again this does not amount to a viable ground of review. It is true the Convention does not define the term “persecution”, but some guidance is provided for decision-makers in s.91R of the Act.
An examination of the reasoning of the Tribunal and of its accurate reference to s.91R at Court Book page 50 does not suggest that the Tribunal fell into legal error in any way in its consideration of whether or not the applicant faced persecution in Tonga. If this were a ground, it also must be rejected.
Conclusion
The amended application is deficient in that it does not identify anything in relation to the decision of the Tribunal or the proceedings before the Tribunal which would assist the Court in determining whether there was any reviewable legal error.
The amended application, and in particular the grounds asserted in it, is with respect patent nonsense, and the applicant has been ill-served by whoever drafted the grounds for her.
When I asked the applicant at the hearing whether she was able to put anything to me that might assist in identifying legal error she declined to make any further submissions, relying on her submissions filed on 21 June 2005.
As I have already indicated the amended application appears to have borrowed the alleged grounds from another applicant, and I suspect the same applies to the applicant’s submissions. No true question has arisen under the Constitution and the application is fundamentally flawed.
Counsel for the Minster submitted to me that the application must be dismissed as no reviewable legal error has been disclosed. I agree. It is apparent that the Tribunal could not be satisfied that the restrictions that the applicant said would apply to her if she return to Tonga would amount to persecution.
There was no evidence before the Tribunal to suggest that supporters of the pro-democracy movement in Tonga had been subject to persecution as a result of expression of their views. The Tribunal had some doubts about whether or not the applicant would engage in the pro-democracy activities if she moved back to Tonga. But ultimately it was satisfied that if she did, she would only engage at a low level as an ordinary supporter and that this would not result in her persecution.
These findings were reasonably open to the Tribunal on the evidence before it. I am not satisfied that the Tribunal made any legal error going to jurisdiction in coming to its decision. I find that the decision of the Tribunal is a privative clause decision having regard to the authority of the High Court in Plaintiff S157.
In addition the decision of the Tribunal was a bona fide attempt to exercise its powers, and clearly related to the subject matter of the Act, and related to the powers conferred on the Tribunal.
In the circumstances I dismiss the application.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Z Chiam
Date: 5 August 2005
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