SZFAI v Minister for Immigration
[2006] FMCA 1248
•5 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFAI & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1248 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal failed to consider applicant’s claims or ignored relevant material. |
| Migration Act 1958 (Cth) |
| Abebe v Commonwealth of Australia (1999) 197 CLR 510 SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZFAI & ANOR |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2653 of 2005 |
| Judgment of: | Barnes FM |
| Hearing date: | 1 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 5 September 2006 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Mr S. Lloyd |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2653 of 2005
| SZFAI & ANOR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 16 August 2005 affirming a decision of a delegate of the first respondent not to grant the applicants protection visas. Only the applicant wife (the first applicant in these proceedings) made claims under the Refugees Convention and for convenience she is referred to hereafter as the applicant.
The applicant and her husband, who are citizens of Mongolia, arrived in Australia as the holders of temporary business visas in February 2004 and applied for protection visas on 2 April 2004.
The applicant claimed to fear persecution for reason of her political opinion. In her protection visa application she claimed that she was a qualified lawyer who had been involved in a number of political debates at Ulaan Baatar University and that in September 1996 she joined the newly established New Leaders Club and became an active member, supporting activities and participating in the club’s projects. Initially the club was said to be supported by the government but the applicant claimed that at the end of 2003 the relationship deteriorated because some members of the club, including herself, were involved in a campaign of criticism of issues within the ruling structure of the country including the government and law enforcement agencies, in particular in relation to corruption and the inability of the government to improve the economic situation.
It was claimed that active members of the club had started to agitate against the Mongolian Peoples Revolutionary Party (MPRP) (the ruling party). The applicant claimed that this attracted adverse interest in club members and in her personally from law enforcement officers. At the end of December 2003 officers of the National Security Services had visited her workplace and the workplace of other members of the club who worked at the university and questioned her about the club’s plans in relation to forthcoming elections, political structure and their proposals for agitation and propaganda during the election campaign. She claimed that the officers told her that they had information that leaders of the club, including herself, had been involved in fabrication of facts accusing the leaders of the country of corruption and misuse of power. She denied any such involvement but understood from the officers’ response that she could be set up. She claimed that she was warned she must stop criticising government officials and concentrate on other issues but that nonetheless she and other club members decided to continue their activities and ignore the warnings.
She claimed that she was warned again by the same security officer that she might face serious consequences if she continued her political activities. She claimed that she understood that the threats to have her charged with “anything that they wanted” could be implemented.
She left Mongolia.
The delegate of the first respondent refused the applications for protection visas. On 25 May 2004 the applicants sought review by the Refugee Review Tribunal, providing the same statement that had been provided in connection with the protection visa application. On
5 October 2004 the Tribunal, as first constituted, affirmed the decision of the delegate of the first respondent. The applicants sought review of that Tribunal decision in the Federal Magistrates Court. On
28 February 2005 the Court ordered, by consent, that a writ of certiorari issue to quash the decision of the Tribunal and that a writ of mandamus issue requiring the Tribunal to consider and determine the applicant’s application according to law.
The applicant attended a hearing of the second Tribunal on 23 May 2005. On 24 May 2005 the Tribunal wrote to the applicant care of her migration agent advising that independent information to which the letter referred suggested that the applicant’s disclosed income as a university lecturer was above average by Mongolian standards.
The letter also stated that, as discussed at the Tribunal hearing, the applicant had six weeks to provide to the Tribunal any further evidence she considered relevant to her case.
On 1 July 2005 the applicant’s migration agent wrote to the Tribunal advising that the applicant had been unable to find further evidence to support her claims, due to limited sources of information on Mongolia. The applicant requested additional time. On 4 July 2005 the Tribunal wrote to the applicant informing her that the member was not prepared to allow additional time, noting that six weeks had been provided and that this was considered to have been more than adequate.
On 16 August 2005 the second Tribunal handed down its decision. It is this decision that is the subject of these proceedings. The Tribunal outlined the evidence given in the applicant’s original application and the accompanying statement and the evidence given by her at the Tribunal hearing. It referred to independent country information in relation to the situation in Mongolia. The Tribunal was not satisfied that the applicant had a well-founded fear of being persecuted for a Convention reason if she returned to Mongolia and resumed her past involvement in political activities opposed to the MPRP. The Tribunal did not accept that there was a real chance that she would face persecution involving serious harm by reason of her real or imputed political opinion or for any other Convention reason if she returned to Mongolia.
The Tribunal found that, as it stated that it had put to the applicant in the hearing, while it accepted that the June 2004 Parliamentary election was marred by numerous irregularities, there was nothing in the information available to it to suggest that people campaigning in the election were threatened by security forces under the control of the government. Nor was there anything in particular to suggest that people had been falsely charged with criminal offences as a result of their expression of political opinions in Mongolia. The Tribunal also stated that there were no reports before it of arbitrary or unlawful deprivation of life committed by the Mongolian government or its agents in 2004 or of politically motivated disappearances or political prisoners.
The Tribunal recorded the applicant’s comments in relation to the independent information (that this did not record with the reality).
The Tribunal accepted that the electronic media in Mongolia continued to be monopolised by the government or by entities associated with the former government, but found that, having regard to the independent information, it remained of the view that the applicant’s claims regarding her persecution by National Security Services or by the Mongolian Intelligence Department for reasons of her involvement in the New Leaders Club were not credible. It did not accept that the applicant or other members of the club were threatened by an officer or officers from the National Security Services or the Intelligence Department in an attempt to make them cease their political activities or to put pressure on the applicant to provide information about the club’s plans for the Parliamentary elections held in Mongolia in 2004.
The applicant had also claimed that she had had an involvement in a Mongolian national television programme which ended at the end of 2003. The Tribunal did not accept that this amounted to persecution involving serious harm, noting that the applicant was not dependent upon her income from her work for the television programme and that she earned an income as a lecturer which was above average by Mongolian standards.
The Tribunal also had regard to the applicant’s claims about termination of her practising certificate as a lawyer. It found, in light of her evidence that she was unable to afford to pay the fees for the second year of her studies, that it was terminated because she had not paid the membership fee and tax and not for other reasons as suggested at the hearing. The Tribunal did not accept on the evidence before it that the applicant would be unable to obtain employment for a Convention reason if she returned to Mongolia or that she would be limited to jobs so poorly paid or so out of keeping with her qualifications as to constitute persecution for the purposes of the Convention. It did not accept that she was denied the opportunity to use her skills for a Convention reason or that there was a real chance that she would be denied such an opportunity for a Convention reason if she returned to Mongolia now or in the reasonably foreseeable future.
The Tribunal accepted that, as the applicant told it, her father and brother were members of the MPRP so that she faced difficulties with her family, but did not accept that such family difficulties, without more, amounted to persecution for the purposes of the Refugees Convention.
The Tribunal concluded that it was not satisfied the applicant had a well-founded fear of persecution for a Convention reason if she returned to Mongolia. As the applicant’s husband did not make specific claims in his own right, because his wife was not a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol, nor was he.
The Tribunal affirmed the decision not to grant protection visas.
The applicants filed an application for a review of the Tribunal decision in this Court on 20 September 2005 in which it was contended that the Tribunal had made a jurisdictional error in that it “failed to make findings upon or otherwise consider a substantial claim of the applicant being that she was persecuted for the reason of her political opinion” and that the Tribunal “erred in law by ignoring relevant materials in a way that affects the exercise of the Tribunal’s power”.
The applicant who is self-represented, did not file written submissions. At the hearing she said that she had recently given birth, that her baby was at home and that she needed to return home to feed the baby.
She told the Court that she would like the matter dealt with on an amended application “submitted” on 30 March 2006 and did not wish to make oral submissions. However as I informed the applicant no amended application had been filed. The solicitors for the respondent confirmed that they had not been served with any amended application. The applicant did not have a copy of the claimed amended application. She said that her migration agent had the amended application.
I adjourned the hearing for a short time to enable the applicant to telephone her migration agent and obtain a copy of any amended application – which could be faxed to the Court. However when the hearing resumed the applicant said that the agent had “sent” all the documents but as he was not in his office he could not fax it right away. It was agreed that time would be allowed for the filing of a copy of the amended application. It was also agreed that, as the applicant had proposed, the Court would determine the application on the basis of the amended application and subsequent written submissions from the respondent and the applicant. The applicant confirmed that she had nothing to add to what was in the amended application.
It was ordered that the applicant file and serve a copy of any amended application on or before 3 August 2006, that the respondent file and serve further written submissions by 14 August 2006 and the applicant file and serve any written submissions in reply by 1 September 2006. Each party was given liberty to apply on two days notice.
It was, however, explained to the applicant and noted in the orders that if no amended application was filed by the applicant, the application would be dealt with on the basis of the application of 20 September 2005. The applicant did not seek to make any oral submissions.
No amended application or any other material has been filed by the applicant since the hearing. Nor has any explanation been provided for the failure to file a copy of the amended application. Accordingly I have considered the grounds raised in the application of 20 September 2005. The respondent relies on written submissions filed on 2 June 2006. Despite the applicant’s failure to file any amended application and expressed wish that she not participate in the hearing, as she is self-represented I have considered not only the grounds in her application but also whether any jurisdictional error is apparent on the material before the Court.
The first ground relied on is that the Tribunal failed to make findings on or otherwise consider a substantial claim of the first applicant, namely that she was persecuted by reason of her political opinion. However it is clear from the Tribunal decision, including its summary of the applicant’s claims, the independent information to which it referred and its findings and reasons that it understood and considered the applicant’s claim to fear persecution by reason of her political opinion. The Tribunal considered but rejected the applicant’s claim that she was so persecuted or that she had a well-founded fear of being persecuted by reason of her real or political opinion or, indeed, for any other Convention reason were she to return to Mongolia now or in the reasonably foreseeable future.
It is apparent from the Tribunal reasons for decision, which is the only account of what occurred in the Tribunal hearing, that during the hearing the Tribunal put to the applicant that there was nothing in the independent country information before it to suggest that people campaigning in the 2004 election had been threatened by security forces controlled by the government or anything in particular to suggest that people had been falsely charged with criminal offences as a result of their expression of political opinion in Mongolia. While the applicant responded that this information did not accord with the reality in Mongolia and was given additional time to provide further information in relation to the situation in Mongolia, she was unable to locate any further evidence to support her in relation to this claim in the time allowed by the Tribunal. I note in relation to the time allowed by the Tribunal that the applicant’s claims to fear persecution on the basis of political opinion were first put in connection with her protection visa application of 2 April 2004. The Tribunal hearing in issue was the second Tribunal hearing. The decision was not made until July 2005. In those circumstances the applicant cannot be said not to have had time to obtain evidence in support of her claims. It is for an applicant to put evidence before the Tribunal in support of her claims. (See Abebe v Commonwealth of Australia (1999) 197 CLR 510.)
In circumstances where the Tribunal did not receive any further evidence to support the claims of the applicant it was open to it to decide that it was not satisfied that she had been persecuted in Mongolia by reason of her political opinion and also that there was no real chance that she would be persecuted if she returned to Mongolia and resumed her past involvement in political activities. There is no substance in the contention that the Tribunal failed to consider this issue.
The second ground relied on is that the Tribunal ignored relevant materials in a way that affected its exercise of power. There is no particularisation of the material that the applicant claims was relevant or ignored. It appears from the court book that the only material before the Tribunal consisted of the written account given by the applicant in connection with her protection visa application (and also provided to the Tribunal) and the oral account provided at the hearing as well as the country information, the essence of which appears to have been put to the applicant during the hearing. The Tribunal considered, but did not accept the applicant’s explanation that the independent information that it had did not accord with the reality in Mongolia in circumstances where she was given the opportunity but did not provide further information to the Tribunal in support of her claims. The Tribunal was entitled to proceed on this basis in light of the country information before it. The weight to be given to particular items of country information is a matter for the Tribunal. No jurisdictional error is established on the basis contended by the applicant.
More generally, findings as to credibility are a matter for the Tribunal par excellence (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407). The Tribunal findings in that respect were open to it on the material before it for the reasons that it gave. No jurisdictional error is apparent in this aspect of the Tribunal decision. I note that no SZEEU issue (see SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2) arises under s.424A(1) of the Migration Act 1958 (Cth) as the applicant provided the statement annexed to her protection visa to the Tribunal. Nor is jurisdictional error otherwise apparent on the material before the Court.
In these circumstances the application should be dismissed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 5 September 2006
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