SZEIH v Minister for Immigration
[2005] FMCA 1088
•5 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEIH & ORS v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1088 |
| MIGRATION – Review of decision of Refugee Review Tribunal – refusal to grant protection visa – applicant alleges persecution in South Korea – refusal to join the construction union – failure of Tribunal to consider claim – implied political opinion. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S |
| SCAT v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 625 Salim Saliba v Minister for Immigration and Ethnic Affairs[1998] 1461 FCA NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112 Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 863 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 |
| Applicant: | SZEIH & ORS |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2745 of 2004 |
| Judgment of: | Emmett FM |
| Hearing date: | 26 July 2005 |
| Date of Last Submission: | 26 July 2005 |
| Delivered at: | Sydney |
| Delivered on: | 5 August 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr C. Colbourne |
| Solicitors for the Applicant: | Ms I. Ho, Beilby Poulden Costello |
| Counsel for the Respondent: | Ms K. Morgan |
| Solicitors for the Respondent: | Ms L. Martin, Clayton Utz |
ORDERS
Leave is granted to the Applicant to file in Court an Amended Application.
The Amended Application filed 25 July 2005 is dismissed with costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2742 of 2004
| SZEIH & ORS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application by the first named Applicant and other family members (“the Application”), whose applications depend on the first named Applicant being found to be a person to whom Australia owed protection obligations. Accordingly, this judgment deals only with the first named Applicant’s application.
The Application is made pursuant to s.39B of the Judiciary Act 1903 (Cth) for judicial review of a decision made on 7 January 2004 by the Second Respondent, the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refusing an application for a protection (class XA) visa on the basis that the first named applicant (“the Applicant”) does not have a well founded fear of persecution and is therefore not a person to whom Australia owes protection obligations. .
The Applicants, husband and wife and one of their two children, are citizens of South Korea. The Applicants arrived in Australia on 28 September 1996. They returned temporarily to South Korea and then came back to Australia on 5 November 1996.
On 19 February 2003 the Applicant submitted an application for a protection visa to the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”). On 5 June 2003 the Minister’s delegate refused this application.
At the commencement of the hearing before this Court, by consent, the Applicant filed a Further Amended Application identifying the following ground:
“a) The Tribunal dealt with the First Applicant’s fear the person who assaulted him in South Korea. But it constructively failed to exercise its jurisdiction by failing to also address his fear that he would continue to the [be] targeted in the construction industry by the union that had targeted him in the past”.
In the Applicant’s outline of submissions he raises only one issue, namely: did the Tribunal commit a jurisdictional error by failing to address the Applicant’s fear that he would continue to be targeted in the construction industry in South Korea by the union that had targeted him in the past?
The Applicant also asserted in his written submissions that he had made a claim that, if he returned to South Korea, he would be forced out of the only profession or occupation he had had since leaving school because of his fear of repeat pressure and threats from the unions.
Both parties agree that if the Tribunal failed to deal with an aspect of a claim made by the Applicant then that is jurisdictional error (SCAT v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 625)).
In short, the Respondent submits that there was no claim made by the Applicant of fear of persecution by the union in the construction industry in South Korea and, further, if such a claim were made, it cannot amount to persecution for a Convention reason and is, in any event, subsumed in findings of greater generality. In those circumstances, the Respondent submits that the Tribunal did not fall into jurisdictional error by failing to address specifically any such claim.
Legislative framework
Section 65(1) of the Migration Act 1958 (Cth) (“the Act”) provides that the decision maker must not grant a visa unless satisfied that the prescribed criteria have been met.
Subsection 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Applicants’ claims before the Tribunal
In support of his application for a protection visa the Applicant relied on a statement dated 18 February 2003 submitted with his visa application. In that document the Applicant claimed that he worked as a site supervisor and personnel manager at building sites with construction companies between 1979 and 1996. Between 1994 and 1996 the Applicant claims that he was asked to join the union on several occasions, which he refused “as I was one of the key responsible managers in the company”.
The Applicant claims that the unions threatened to kill him and his family unless he joined and so he decided to take his family to Australia in 1996. After a short visit to Australia he returned to South Korea, whereupon he was attacked and taken to hospital. He said he could not provide evidence to the police of his assailant for fear of retaliation. The Applicant and his family then returned to Australia in November 1996.
The Applicant claimed that sometime after having returned to Australia he heard from friends and relatives in Korea that his assailant had been convicted and was serving time in prison for the assault upon the Applicant. The Applicant claimed, “this man was said to be waiting for me for retaliation”.
In concluding his statement dated 18 February 2003, the Applicant claimed that “for fear of this threat my family and I cannot go back to my home country”.
Following consideration of the material contained in that statement and other material provided to the delegate by the Applicant in support of his application, the delegate of the Minister refused the application for a protection visa on the ground that he was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugee Convention.
On 1 July 2003 the Applicant filed an application for review by the Tribunal of the delegate’s decision. The reasons given by the Applicant in his application to the Tribunal were as follows:
“1. I do not agree the delegate of the ministers decision made that I am not a person to whom Australia has protection obligation under the Refugees Convention”.
“2. Furthermore, my family and myself are concerned about the threat of armed conflict with North Korea”.
“3. If there is a war I will be forced to serve in the military as part of the army reserve”.
“4. My family is very frightened about the war (nuclear weapon and program)”.
There is plainly no reference in those assertions of any fear of persecution by unions in the construction industry.
The Tribunal decision
The Applicant attended the Tribunal hearing on 7 December 2003 and gave oral evidence. In addition, the Tribunal had before it the Department’s file which included the Applicant’s statement of 18 February 2003.
The Applicant made it clear in his statement dated 18 February 2003, that his fear is based on the threat of retaliation by his assailant to himself and his family were they to return to South Korea.
The Applicant contends that, in the course of his oral evidence before the Tribunal, he raised the claim of persecution by the union for imputed political opinion.
In support of this contention the Applicant relies on pages 25 to 27 of the transcript of his evidence, a copy of which is attached and marked “A”.
The Applicant submits that this evidence discloses a claim of fear by him of persecution by unions in the construction industry in Korea for imputed political opinion. The Applicant contends that this claim was not considered and determined by the Tribunal and that such failure is jurisdictional error.
In its findings and reasons, the Tribunal expressed doubt about the veracity of the Applicant’s claims about the identity of those who assaulted him and whether any such assault was related to the Applicant’s refusal to join a union. However, the Tribunal was prepared to accept the Applicant’s claims that:
a) He was assaulted in his country because he refused to join a union that was in operation at that time;
b) Prior to the assault, he had received threats that if he failed to join the union concerned he would be harmed;
c) He feared for himself and his family, so he decided to start a new life in a different country;
d) He travelled with his family to Australia for a few days and returned to his own country;
e) It was around this time that he was assaulted;
f) The Applicant and his family returned to Australia on 5 November 1996. He has resided in Australia since that time.
I am required to determine upon the evidence before me whether the applicant has a well founded fear of persecution for a Convention reason.”
The Tribunal concluded on the evidence before it that:
“The real basis for the applicant’s fears should he return to Korea is that he fears that he and perhaps his family will be targets for retaliation by his assailant or those associated with that person as a consequence of that persons conviction and imprisonment”.
The Tribunal went on to hold that the Applicant’s fear of retaliation is not a fear of persecution for a Convention reason. The Tribunal did not accept that the conduct of the unions feared by the Applicant by reason of his assault is neither tolerated nor uncontrolled by the State. The Tribunal found as follows :
“That which the applicant fears is officially tolerated or uncontrollable by the authorities in Korea. On the contrary I find that the authorities by prosecuting the applicant’s assailant, have demonstrated control. Based upon the applicant’s previous experience with state officials, should he be harmed upon his return to South Korea, which I doubt, I find that he will be offered the protection afforded by the law there.”
The proceeding before this Court
The Applicant was present at the hearing before this Court and was represented by counsel. He also had the benefit of an interpreter.
Counsel for the Applicant submitted orally, although there was no mention in his written outline, that the Tribunal’s decision does not disclose consideration of the Applicant’s claim in his oral evidence of fear of persecution in the Convention sense for imputed political opinion.
The Applicant referred to the decision of Salim Saliba v Minister for Immigration and Ethnic Affairs[1998] 1461 FCA (“Saliba”) in support of his submission that the fact that the Applicant had not explicitly drawn attention to his claim of persecution by the unions for imputed political opinion was not fatal to the Applicant’s ability to raise the claim in the course of his evidence before the Tribunal.
The Applicant submits that, by its finding that the Applicant was assaulted because he refused to join the union, the Tribunal had accepted evidence capable of making out his claim of fear of persecution by the union. The Applicant submits that the Convention ground for such persecution was the imputed political opinion.
Did the Tribunal Member understand the Applicant’s oral evidence to raise a claim of persecution for imputed political opinion?
It is common ground between the parties that no claim of persecution for imputed political opinion had been asserted by the Applicant prior to the hearing before the Tribunal.
The part of the transcript relied upon by the Applicant includes the words used by the Tribunal at page 27 of the transcript, “We’ve heard another claim”. The Applicant contends that use of these words demonstrates that the Tribunal was aware and understood that the Applicant was making a new and further claim of persecution for an imputed political opinion.
The Respondent submits, however, that a contextual reading of those words by the Tribunal Member makes it clear that the Tribunal Member was intending to proceed to ask the Applicant about his claim that he would be forced to serve in the military in the likely event of conflict with North Korea.
In considering whether a claim of persecution for imputed political opinion was fairly raised on page 25 of the transcript, it is necessary to consider the Applicant’s evidence at page 25 in context. The relevant evidence commences at page 24 and is annexed and marked “B”.
When one reads the exchange between the Applicant and the Tribunal Member that immediately precedes the exchange relied upon by the Applicant at page 25, it is apparent that the Tribunal Member was raising with the Applicant the expressed fear of the Applicant that his assailant intends to retaliate against him upon return to South Korea because his assailant is a “pretty high up” gangster member. The Applicant claims that, because his assailant was imprisoned for the attack on the Applicant, “his men, his people in the gangster group will retaliate” against him and his family in the future. The Tribunal Member then confirmed with the Applicant that the Applicant meant revenge from his assailant.
Immediately following that confirmation, the Tribunal Member asked, “And do you think there might be any other reason that you would be targeted by this gangster?” It was the answer given to this question coupled with the Tribunal Member’s words on page 27, “We’ve heard another claim”, that the Applicant contends reveals the claim of fear of persecution for imputed political opinion.
However, the Respondent contends that the context of the Tribunal Member’s words, “We’ve heard another claim”, occur immediately before the Tribunal Member proceeded to explore with the Applicant his claim of being forced to serve in the military. The Respondent submits that the context of the words make it clear that the Tribunal Member’s reference is to the military related claim, not a new claim of persecution for imputed political opinion.
On a fair reading of those words in the context in which they were said, I consider that those words do not reveal any understanding by the Tribunal member that the Applicant was asserting, in his evidence, a further and new claim of persecution for imputed political opinion.
Did the Applicant’s oral evidence sufficiently raise a new claim of persecution for imputed political opinion?
I now turn to consider whether or not the words used by the Applicant in his evidence at page 25 of the transcript raised a claim of persecution for imputed political opinion. The Full Court made it clear in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 (“NABE”) that there is no general rule that the Tribunal, in undertaking a review, can disregard a claim which arises clearly from the materials before it. However, it is not obliged to deal with claims which are not articulated and which do not clearly arise on the materials before it.
The Full Court in NABE cited at paragraph 62 Gleeson CJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112 at 114:
“Proceedings before the tribunal are not adversarial: and the issues are not defined by the pleadings or analogous process. Even so, this court has insisted that, on judicial review, a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.”
In referring to Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 863 (“Dranichnikov”), the Full Court stated:
“The Tribunal’s obligation is not limited to procedural fairness in responding to expressly articulated claims but, as is apparent in Dranichnikov, extends to reviewing the delegate’s decision on the basis of all the materials before it…….It is plain enough, in the light of Dranichnikov, that failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the Review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error.”
Any such new claim must be capable of being supported by probative material. The principle is dealt with in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 (“WAEE”), as cited in NABE, where the Court said:
“If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion and if that contention is supported by probative material, the Tribunal would have failed in the discharge of its duty, imposed by a s.414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal’s published reasons for decision.”
Until his oral evidence at the Tribunal hearing, it had been the Applicant’s claim that he was assaulted for refusing to join the Union. He did not claim that his assault was because of any political opinion he was known to hold.
In Saliba the Court made reference to the fact that persecution for political opinion within the meaning of the Convention involved persons that are alleged or known to hold opinions contrary to or critical of the State, or, where the State is not an accomplice but is unable to protect the claimant. Section 91R of the Act now enshrines that principle.
What is relevant in that principle, to this case, is the notion that a claimant must be alleged or known to hold a political opinion. In the case before this Court, there are no details or particulars of what the political opinion of the Applicant is. Beyond his refusal to join a union in the construction industry, it is difficult on the material before the Tribunal to identify what it could have relied on to make a finding that it was the Applicant’s political opinion that was the reason for his assault.
Moreover, the Applicant does not identify with particularity what he claims is his political opinion or imputed political opinion. The only evidence capable of being gleaned from the evidence of the Applicant as to his refusal to join the union because of his “political opinion” is as follows:
a)In his statement dated 18 February 2003, the Applicant asserted he was “one of the key responsible managers within the company” and he believed that by boosting their numbers the union could strengthen its power “which they could use for their own interest by thrusting their unlawful demands upon their companies”;
b)In his oral evidence, the Applicant said that he did not intend to look for a job in the same profession if he returned to Korea because he did not think “a compromise with the people who just you know, just push people to do that out of the law, I don’t think that’s the right thing to do, so I wouldn’t join, I wont join, I won’t seek any job in the same profession”.
c)When asked by the Tribunal member why he would not seek work in the construction industry, the Applicant replied “for the fear of receiving same pressure and the same threat to join the membership by force, and someway I will be disadvantaged if I don’t cooperate with them.”
I am not satisfied that any of the evidence referred to above is sufficient to establish that the Applicant had a political opinion, imputed or otherwise, within the meaning of the Convention, about joining a union.
Moreover, there was no claim that any persecution of the Applicant that occurred or was likely to occur is in any way tolerated or uncontrolled by the State. Indeed, as the Tribunal found, the Applicant’s assailant was prosecuted, convicted and imprisoned.
Justice Selway in Dranichnikov, at paragraph 49, and cited in NABE at paragraph 60, identifies the relevant question as, ultimately, whether the case put by an applicant before the Tribunal has sufficiently raised the relevant issue that the Tribunal should have dealt with it. I am not satisfied that any of the Applicant’s evidence referred to above sufficiently raises a claim of persecution for an imputed political opinion such that the Tribunal should have dealt with it.
Accordingly, the ground in respect of this claim is rejected.
Other claims
The Applicant also appears to contend that, in his oral evidence at page 25 of the transcript, he made a claim of a well founded fear of persecution within the meaning of the Convention based on being forced out of his profession or occupation and that the Tribunal did not deal with that claim. I am satisfied that a fair reading of the transcript at page 25 does not support the Applicant’s contention that such a claim was raised.
Such a claim is not articulated and was not otherwise raised before the Tribunal either in the reasons for review or the statement in support of the visa application.
There is no evidence from the Applicant or otherwise that his management skills or experience in the construction industry as a site manager are not transportable from the construction industry. Although he states it is the only job he has had all his life the Applicant expresses, at page 25 of the transcript, his intention not to seek work in the construction industry if he was to return to Korea, the inference being he would seek work elsewhere.
Moreover, the Applicant makes it clear in his evidence that the reason that he would not seek a job in the construction industry is because he does not wish to join the relevant union.
For those reasons, this ground is rejected.
Conclusion
I am satisfied that, in its context, the Applicant’s oral evidence neither clearly nor sufficiently raises a claim by the Applicant that he had a well founded fear of persecution for imputed political opinion within the meaning of the Convention. Further, I am satisfied that such a claim is not articulated elsewhere and does not otherwise arise on the material before the Tribunal.
Accordingly there is jurisdictional error on the part of the Tribunal in failing to consider such a claim.
In the circumstances, I am satisfied that the Tribunal, in accordance with its statutory duty, properly considered the claims before it made by the Applicant. The findings made by the Tribunal in respect of those facts were open to the Tribunal on the material before it.
Accordingly, the Tribunal’s decision is a privative clause decision and pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
Accordingly, the Application is dismissed with costs.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S Riddle
Date: 3 August 2005
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