SZFAK v Minister for Immigration - [2005] FMCA 1953

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFAK & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1953

MIGRATION – RRT decision – Mongolian fearing persecution for democratic political activity – no error found.

Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.474(1), 483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73

First Applicant:

SZFAK

Second Applicant:

SZFAL

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3225 of 2004

Judgment of:

Smith FM

Hearing date:

13 December 2005

Delivered at:

Sydney

Delivered on:

13 December 2005

REPRESENTATION

Counsel for the Applicants:

First applicant in person

Counsel for the First Respondent:

Mr Z Chami

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3225 of 2004

SZFAK

First Applicant

SZFAL

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 2 November 2004 under s.483A of the Migration Act 1958 (Cth), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal dated 15 September 2004 and handed down on 7 October 2004. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicants, who are husband and wife. The wife’s entitlement to a visa was dependent upon that of her husband, and I shall refer to him as “the applicant”. The wife has not participated in the hearing in this court, but is a party to the proceeding.
The application was originally set down for hearing on 28 October 2005. On that date, the application was dismissed due to the non-attendance of the applicant. However, he subsequently applied to the Court for the setting aside of the order, and explained that a back condition had prevented his attendance. I reinstated the application, and it was listed for hearing today. The applicant has appeared and has been assisted by a Mongolian interpreter.
Section 483A was repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuation of the present proceeding (see Sch.1 cl.41 of the amending Act and the Acts Interpretation Act 1901 (Cth) s.8).
The Court's jurisdiction under s.483A is the same as the Federal Court's jurisdiction under s.39B of the Judiciary Act 1903 (Cth), but both are subject to limitations under Part 8 of the Migration Act. These have the effect that I do not have power to set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied that the decision was affected by jurisdictional error. I do not myself have power to decide whether the applicant qualifies for a protection visa or any other permission to stay in Australia.
The applicant arrived in Australia with his wife in February 2004 and they applied for protection visas on 1 April 2004. The wife made no separate claims for protection. Their visa applications were prepared with the assistance of an agent, Yevgen Kyselov.
In a statement attached to his application, the applicant said that he was a citizen of Mongolia, and in 1998 had become a member of a political organisation known as the New Leaders Club. He then “started actively participate in the organisation activities”.
He said:
The majority of the New Leaders Club members were positive that the forthcoming parliamentarian elections scheduled on June 2004 was a good opportunity to upset the existing government. It had been decided that we all should be actively involved in agitation against communists from the Mongolian People's Revolutionary Party (MPRP) exposing their involvement in corruption and criminal structures and inability to manage Mongolian economy and other aspects of the country's life.
…
I had spoken to many people in my neighbourhood and to my former work mates about forthcoming elections, trying to convince them not to vote for Communists any more.
…
At the end of 2003 I was called to the local police station where I was interrogated by the police officer about my connections with the New Leaders Club and my involvement in the club's political activities.
On this occasion, he claimed to have been held overnight in a cell with criminals and warned “if I wanted to feel secure I should quit my activities and concentrate on job hunting”. When he was released, he discovered other members of the club had been visited by security service officers and also warned. It was then decided:
that some of the most active members of the New Leaders Club including me should be sent along with their family members overseas in order to avoid persecutions.
No supporting evidence in relation to these claims was provided to the Department of Immigration, nor to the Tribunal subsequently.
A delegate refused the application on 16 April 2004, and the applicant appealed to the Tribunal assisted by his agent. His review application merely resubmitted his original typed statement.
The applicant attended a hearing conducted by the Tribunal on 7 April 2004. A transcript of what was said is not in evidence, but the Tribunal gave a description in its statement of reasons. The Tribunal said that it questioned the applicant about his political activities, and that it put to the applicant that parties espousing ideas similar to his had contested the elections and been successful, so that there was now a new coalition government in Mongolia which was not controlled by the Communist party.
The Tribunal recorded that the applicant's adviser attended the hearing, and said that at the end of the hearing:
He conceded that after the elections and given the election results that perhaps the applicant did not have a real danger on returning to Mongolia.
The Tribunal in its statement of reasons referred to country information concerning the political parties who had contested the 2004 elections. It noted:
In a shock result, the MPRP won only 36 seats in the 76-seat parliament, while the coalition took 34, resulting in the coalition of opposition parties and the MPRP taking office in August 2004.
Under the heading "Findings and Reasons" the Tribunal gave brief reasons for not being satisfied that the applicant had a well-founded fear of persecution within the meaning of the Refugee Convention on his return to Mongolia.
In short, the Tribunal did not accept that in the past the applicant had faced harm from the Mongolian authorities by reason of his political opinions. It said:
In light of the foregoing the Tribunal does not accept that the Applicant’s democratic views or his dislike of the MPRP or his low-level political involvement resulted in any adverse attention from the authorities of Mongolia.
This was due to its assessment of his political activities against the country information which indicated participation by the democratic parties in the election.
The Tribunal gave a second reason for not being satisfied that the applicant had a well-founded fear of persecution. This was:
In addition given that Mongolia now has a Coalition government made (up) of Democratic parties which the Applicant claimed to support, the Tribunal does not accept that the applicant faces any harm from the authorities of Mongolia on his return there by reason of his political opinion or activities.
I have considered the procedures followed by the Tribunal and its reasoning in support of its conclusion, and have not been able to identify any error, whether jurisdictional or otherwise, affecting its decision.
The applicant's application filed on 2 November 2004 criticised the Tribunal's decision on the basis that the Tribunal had "no evidence" and there being an "absence of the evidence of the real political situation in Mongolia". However, the applicant never provided any general information to assist the Tribunal, and I can see no error by the Tribunal when relying upon the information which it has identified in its reasons. In my opinion, it was under no duty to conduct further investigations (c.f. Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43], Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]).
The applicant filed an amended application on 18 October 2005, which he has drawn from a precedent which does not assist his case. For example, it incorrectly suggests that he was denied an opportunity to attend a hearing, and had not been represented by a migration agent.
It also contains general allegations of failure to observe the Migration Act and failure to consider claims, without providing particulars giving any meaning to these contentions.
A contention that the Tribunal's conclusion was "not based upon reasoning which provided a rational or logical foundation for this belief" has no substance, on my reading of the documents.
The remaining particulars in the amended application repeat the applicant's claims to be a refugee, and argue that they were not properly considered by the Tribunal. However, in my opinion, these are contentions going only to the merits of the Tribunal’s assessment.
The applicant's oral arguments to me today were of the same character. He also told me that he wanted an opportunity to obtain from Mongolia further relevant documents about his claims. However, as I have explained to him, the obtaining of such documents would not assist the proof of jurisdictional error by the Tribunal.
For the above reasons, I have not identified jurisdictional error which would allow me to set aside the Tribunal's decision. It is therefore a privative clause decision for which relief is barred under s.474 of the Migration Act, and I must dismiss the application.

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

Associate: Iliya Marovich-Old

Date: 13 January 2006