SZDYN v Minister for Immigration - [2005] FMCA 933

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDYN & ORS v MINISTER FOR IMMIGRATION

[2005] FMCA 933

MIGRATION – RRT decision – Tongan fearing political persecution – Constitutional contentions raised in s.78B notice – no ground for judicial review shown.

Judiciary Act 1903 (Cth), ss.39B, 78B

Migration Act 1958 (Cth), ss.474, 474(1), 475, 476, 483A, Pt 8

Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476

First Applicant:	SZDYN
Second Applicant:	SZDYO
Third Applicant:	SZDYP

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG1995 of 2004

Judgment of:

Smith FM

Hearing date:

23 June 2005

Delivered at:

Sydney

Delivered on:

23 June 2005

REPRESENTATION

Counsel for the Applicants:

First applicant in person

Counsel for the Respondent:

Mr G Johnson

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
First applicant to pay the respondent’s costs in the sum of $5000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1995 of 2004

SZDYN, SZDYO, SZDYP

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which challenges a decision of the Refugee Review Tribunal (“the Tribunal”) dated 26 May 2004 and handed down on 16 June 2004. The Tribunal affirmed a decision made by a delegate on 2 March 2004 refusing to grant protections visas to the applicants, who are a Tongan mother and her two children. Since the children’s entitlements depended upon acceptance of the first‑named applicant’s qualification, I shall refer only to the first‑named applicant as “the applicant”.
I note that the original visa application also named the applicant’s husband and father of the two children, as an applicant for protection. However, his entitlement to a visa has been, or is being, separately addressed. I am unaware of the circumstances concerning this, but note my present decision concerns only the mother and the two children.
Section 483A of the Migration Act gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. In a matter such as the present, that jurisdiction is under s.39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”) which gives jurisdiction to grant relief by way of writs of mandamus or prohibition, or an injunction against officers of the Commonwealth, or to give other relief by way of judicial review in matters arising under a law of the Parliament.
The Court does not have power under s.39B, even without the constraints of Part 8 of the Migration Act, to determine an applicant’s entitlement to a visa under the Migration Act. Its powers are dependent upon identifying in the administrative decision a material legal error or a factual error going to the jurisdiction of the decision‑maker.
Part 8 of the Migration Act in its current form applies to the current proceedings, and (if valid) imposes further limitations on the powers of the Court to grant relief in relation to visa decisions. In particular, s.474(1) contains limitations under what is commonly referred to as a “privative provision”.
In the present case, the applicant in her application and amended application raised constitutional challenges to the validity of s.474 and its related provisions in s.475 and s.476. Pursuant to the requirements of s.78B of the Judiciary Act and the rules of this Court, notice of a constitutional matter arising under s.78B was filed by the applicant on 10 March 2005. This identified the constitutional issue that I have referred to above, i.e. the validity of ss.474, 475 and 476 of the Migration Act. The respondent has notified all the State attorneys‑general, and they have indicated a desire not to participate in the proceedings in this Court.
Grounds in support of the constitutional contentions are listed in the applicant’s s.78B notice, which assert that various effects of the provisions reveals something that is “unconstitutional”. The applicant is not legally represented, and has not in written nor oral submissions attempted to argue any of the grounds listed in the notice. Indeed, it appeared to me that she had little comprehension as to the nature of the documents she had filed.
Prima facie, the constitutional contentions raised in the applicant’s documents have difficulty due to the fact that the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 addressed the constitutional validity of the privative provision and, through an interpretation of the critical definition of “privative clause decision”, upheld the validity of s.474(1).
However, in my opinion, in the present proceedings I do not need to attempt to explore the constitutional issues raised by the documents filed by the applicant. This is because the applicant has not been able to identify any ground upon which relief by way of judicial review could be granted, even if I were unconstrained by s.474(1). I shall explain this opinion by reference to the refugee claims made by the applicant, and how the Tribunal has dealt with them.
The applicant arrived in Australia from Tonga in August 1997. After her arrival she married and had two children. Her application for a protection visa was lodged on 4 October 2002. She was assisted by Mr George Fonua, who appears in her application as her authorised agent. The form does not disclose whether he is a registered migration agent.
In the sections of the form which invite an applicant to explain her grounds for seeking protection in Australia, the applicant said in response to the question, “Why did you leave that country?”:
I left Tonga in 1997 to come to Australia to visit my relatives. I do not like and hate the political system in Tonga.
The Ministers are not selected by the Government but by his Majesty the King under constitution.
I base my claim on my political opinion.
In response to the question, “Why do you think this will happen to you if you go back?”, the applicant said:
I am too fearful of harm if, I am compelled to return to Tonga because I have been not politically active in the past but now if I return, I shall fully support the democratic movement led by Mr Pohiva. As I say earlier there are no political party in Tonga.
The King of Tonga has too much power under the Tongan constitution. He appointed his children to the top job in government. Eg. his young son to become the present Premier of Tonga …
No further supporting information or material was given to the delegate before the visa was refused on 2 March 2004. The applicant lodged her application for review, naming Mr Fonua as her authorised recipient, but did not give further details of her claims. In response to the question: “Please tell us why you consider yourself to be a refugee”, the applicant’s application said: “A statement of argument to file later”, but no statement or further material was ever filed.
The applicant attended a hearing before the Tribunal on 25 May 2004. In its reasons for its decision the Tribunal described the evidence given by the applicant:
When asked by the Tribunal why she believed she was a refugee, the Applicant referred to the claims raised in her primary application concerning the power of the Tongan King and Nobles which, she said, classified her as a refugee. She added that, in her view, there were economic problems in Tonga for families, including a lack of jobs and restrictions on the ability of children other than the first‑born to inherit land. She stated that her husband was the ninth child of his family and that she could see no future for her own family in Tonga without space and land on which to grow food. It would only be by taking back with them a large amount of money that her family could buy land and establish a proper life. The only alternative, available in Tongan society was to rely on family ties and live with relatives.
Noting the Applicant’s claim that she was not politically active before she came to Tonga but now believed that the Tongan political system needed reform, the Tribunal asked what had brought about her change of view. The Applicant replied that there had been a change when the King and the Nobles seemed to have all the power in the Kingdom. Additionally, the people had problems in having their voices heard and there were reports of restrictions on the freedom of the press.
The Applicant told the Tribunal she had never done anything in Australia to express her political opinion about Tonga. The Tribunal asked what she would do in order to express these opinions if she returned to Tonga. The Applicant said she would support the movement in the Legislative Assembly which aimed to reduce the power of the King. The Tribunal asked how such activity would get the Applicant into trouble. The Applicant said Tongan tradition was not to oppose the King or the existing order. If she supported the movement in the Legislative Assembly she would be imprisoned by the police.
The Tribunal referred to country information concerning the situation in Tonga, and then made its findings in relation to the applicant’s claims. The Tribunal said:
The Applicant was unable to substantiate her claim that she opposes the Tongan political system with evidence she has ever expressed such views in any way. She states that she was not a political activist when she was in Tonga but that her views have changed since coming to Australia so that she will be politically active if she returns. She offered no clear reason for this change beyond stating that the King and the Nobles had increased their power and that ordinary Tongans had difficulties in expressing their views, a difficulty compounded recently by laws designed to limit the freedom of the press. While the Applicant’s explanation of these issues was generally vague and lacking in detail, the Tribunal is prepared to give her the benefit of the doubt by accepting that she does hold views which are in some way critical of the Tongan government and political system and that these views have developed since her arrival in Australia. The Tribunal is also prepared to accept that such a change in views may explain the long delay after the Applicant’s arrival in Australia before she sought protection.
When the Tribunal asked the Applicant in what way she would express her political views if she returned to Tonga she said she would do nothing more than support the movement in the Legislative Assembly which aims to limit the power of the King. She did not explain, either in her application or her oral evidence what this would entail or exactly what actions she might take. She did not claim that she would join the opposition pro‑democracy movement, take part in any of its activities or take any particular step to express her views. On the basis of the vagueness of these claims and the fact that she was unable to point to any evidence that she has ever publicly expressed views about Tonga while in Australia, the Tribunal is not satisfied that the Applicant’s political views are held sufficiently strongly that they would lead her to become an activist who would express her views in public or support the opposition pro‑democracy movement if she returned to Tonga.
The Tribunal gave a second reason, which was that the independent country information which had been put to the applicant and accepted by the Tribunal indicated:
… that, even if the Applicant were to express her opposition to the political system if she returned to Tonga (which the Tribunal does not accept she would do) she would not suffer any harm for this reason.
The Tribunal said that it was not satisfied that there was any objective basis for the applicant’s fear that she would be imprisoned or persecuted in any other way, should she express her political views in public in Tonga. It concluded that it was not satisfied that the applicant had a well‑founded fear of persecution should she return to Tonga now, or in the foreseeable future, because of her political opinion, or for any other Convention‑related reason, and was not satisfied that she was a refugee.
The Tribunal referred, at the conclusion of its reasons, to the humanitarian considerations which had been mentioned by the applicant at a number of points. In particular, the economic hardship that would face her and her family back in Tonga, and significantly the plight of her children who were born in Australia and are now aged 6 and 4. These, indeed, are considerations which could be addressed by the Minister under her discretionary powers, and the applicants should also take advice whether they have grounds for obtaining permission to stay based on humanitarian or compassionate considerations. However, as I have explained to the applicant, the Tribunal had power only to address her entitlements in relation to a protection visa, and the Court can provide remedy only upon demonstration of legal error by the Tribunal when addressing those entitlements.
The applicant’s application for review filed on 29 June 2004 and her amended application filed on 3 November 2004, as I understand them in the light of the s.78B notice, sought to raise only contentions going to the constitutional validity of the privative provision in the Migration Act. They did not identify any substantive ground upon which relief by way of judicial review of the Tribunal decision could be based. I could not identify in these documents any ground on which the principal order sought, that the matter be remitted to the Tribunal for reconsideration, could be granted, even were the constitutional contentions to succeed.
However, in the applicant’s written submissions filed in recent days on 20 June 2005, there is one paragraph which might attempt to raise a ground for relief. It is paragraph 3, which says:
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.
I do not understand what is intended by the first sentence of this ground, and it was not explained by the applicant to me in her oral submissions. If her contention is that the Tribunal misunderstood the Convention definition of “persecution” as adopted by the Migration Act, I am unable to find any basis for this in my reading of the Tribunal decision.
The second sentence in paragraph 3 repeats factual assertions which the applicant made to the Tribunal and has repeated to me today.

I consider that the Tribunal has addressed the applicant’s concerns arising from her political opinions, and can find no error in how it has made its assessment of those claims against the definition of “refugee”.
Understandably, the applicant may not have understood the legal issues that need to be addressed before this Court, but she has been given a full opportunity to present arguments, and has been unable to present any argument that persuades me that she has a good ground for judicial review under s.39B of the Judiciary Act, even assuming the invalidity of ss.474, 475 and 476 of the Migration Act.
For that reason, I dismiss her application.
RECORDED : NOT TRANSCRIBED
I order the applicant to pay the respondent’s costs in the sum of $5000.

I certify that the preceding twenty‑five (25) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 7 July 2005