SZFBK v Minister for Immigration - [2005] FMCA 1795

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFBK & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1795

MIGRATION – RRT decision – Mongolian with fear of political persecution – Tribunal conclusions based on 2004 election outcome – no error found.

Federal Magistrates Court Rules 2001, r.13.03A(d)
Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(b), 474(1), 483A

First Applicant:

SZFBK

Second Applicant:

SZFBL

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG3394 of 2004

Judgment of:

Smith FM

Hearing date:

21 November 2005

Delivered at:

Sydney

Delivered on:

21 November 2005

REPRESENTATION

Counsel for the Applicants:

No appearance by or on behalf of the First Applicant;
Second Applicant in person

Counsel for the First Respondent:

Ms L Clegg

Solicitors for the Respondents:

Blake Dawson Waldron

ORDERS

The Tribunal be included as second respondent.
The application is dismissed.
The applicants must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3394 of 2004

SZFBK

First Applicant

SZFBL

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 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 30 September 2004 and handed down on 26 October 2004. The Tribunal affirmed a decision of a delegate which refused to grant protection visas to the applicants.
The application to this Court has two applicants. They were husband and wife at the time of their applications for protection visas. The principal application for protection visa was made by the wife based on her history, and the husband put forward no separate claims for protection by Australia. Accordingly, both the delegate and the Tribunal dealt with his entitlements as being secondary to his wife’s, and I can see no error in the Tribunal proceeding in that fashion.
The Tribunal considered the wife’s claims and said that it was not satisfied that she was a person to whom Australia had protection obligations, so that she could not satisfy the criteria set out in s.36(2)(a) of the Migration Act. The Tribunal said:
No specific Convention claims were made by or on behalf of the Applicant husband. The fate of his application therefore depends on the outcome of the first named Applicant’s application. As the first named Applicant cannot be granted a protection visa, it follows that the Applicant husband cannot satisfy the alternative criteria set out in s.36(2)(b) of the Act and cannot be granted a protection visa.
The application to this Court challenges the Tribunal’s substantive reasoning in relation to the wife’s claims, and does not challenge its reasoning in relation to the husband’s eligibility. Moreover, as I have indicated, I can see no arguable error affecting this part of its decision.
The application to this Court was listed before a Registrar on a first court date on 1 December 2004, where the applicants are reported as both appearing in person. The matter was set down for hearing today. When the matter was called today, only the applicant husband appeared, and there was no appearance by or on behalf of the wife. The applicant husband informed me that they are now separated and divorced, and he confirmed information presented by the Minister that she had departed the country on 24 August 2005. I decided to proceed with the hearing in the absence of the first applicant pursuant to rule 13.03A(d) of the Federal Magistrates Court Rules 2001.
I have drawn to the applicant husband’s attention the need on his part to show jurisdictional error by the Tribunal in its decision concerning his former wife’s claims, before I could grant relief of the sort which he seeks. I have also attempted to elicit his submissions, whether on that issue or any other issue which he wished to raise, but he was unable to make any relevant point. I have therefore proceeded to address the substance of the Tribunal’s reasoning and the points raised in the applications filed in the Court.
Both applicants arrived in Australia in February 2004 on three month business visas. The wife claimed to have been a lawyer and law teacher in the country of their nationality, Mongolia, and her husband claimed to have qualifications in economics. The visa application was lodged by a migration agent, Yevgen Kyselov, and attached a statement signed by the applicant wife.
In it, she claimed to have belonged to “our political organisation known as ‘The New Leaders Club’ founded in September 1996”. Members of the club sought to promote issues to change the Mongolian society, and “adopted a policy of criticism” towards the Mongolian People’s Revolutionary Party, MPRP, which had won the 2000 elections. She referred to a forthcoming parliamentary election scheduled for June 2004, and claimed that in December 2003 she had been visited by officers of the National Security Services and questioned concerning her activities in the New Leaders Club. She claimed to have been threatened that false charges would be made against her if she continued her activities. She said other members of the organisation were also visited by security officers, and:
We realised that the situation was very dangerous. All of us had a good understanding that it really would be very easy for the law enforcement agencies to accuse us in whatever they wanted just to stop our criticism of the existing government. It had been decided that we should keep a low profile for a while and find a way on how to leave Mongolia and seek protection at least temporary in other country.
A delegate refused the application on 16 April 2004, and the applicants appealed to the Refugee Review Tribunal on 25 May 2004 assisted by their agent. The application did not provide further supporting statements or material but said: “please see statement”, which I take to be a reference to the original statement supporting the visa application.
The applicants attended a hearing held by the Tribunal on 27 September 2004. The applicant wife’s claims remain the principal claims which were presented. She gave a somewhat different account:
The Applicant was asked which political party she supported. The Applicant stated that she supported the Mongolian Democratic Party, but that she has supported them through the New Leaders Club. She stated that this New Leaders Club is a type of sub‑club.
The Applicant was asked if she could explain what she meant by that she had received warnings. The Applicant stated that in the run‑up to the election she had criticised top members of the government and she had spoken about their corruption. She stated that the warnings were in the form of her car window being broken, her car tyres being punctured and a text message sent to her threatening her. The Applicant was asked whether other things had happened. She stated that on one occasion a person who she did not know came up to her and made a clear warning that she would be called to the police and blamed for illegal activity if she continued with her activities.
The Tribunal said that it discussed country information concerning recent elections in Mongolia, and in particular:
The Tribunal put to the Applicant that country information indicated that since the Applicant had come to Australia there had been elections in Mongolia and that there is now a new government made up of an alliance of democratic parties.
The Tribunal in its reasons referred to that information. This showed that at the June 2004 election, the MPRP won only 36 seats in the 76‑seat parliament, while the coalition of democratic parties took 34 seats, resulting in a coalition of opposition parties and the MPRP taking office in August 2004.
In short reasons for affirming the delegate’s decision, the Tribunal said:
The Tribunal does not accept that the Applicant faced harm in the past from political opponents and/or the Mongolian authorities by reason of her political opinion or that the Applicant faces harm from the authorities on her return to Mongolia by reason of her political opinion.
Essentially, the Tribunal reached both of these conclusions based on country information concerning the freely contested elections in June 2004, which had resulted in “a large number of political parties of democratic persuasion” succeeding. I can find no error in the Tribunal’s reasoning and consider it was open to it. Nor can I see any error of procedure by the Tribunal which could be characterised as jurisdictional error.
The applicants filed three applications in this Court. Their contentions gained most detail in the last of them, entitled “Further Amended Application” filed on 17 June 2005. It provides:
1.The RRT failed to exercise the jurisdiction conferred on it by the Migration Act:
(i)The RRT failed to consider relevant material provided by the applicant.
(ii)The Applicant said in evidence that many people who were in power would not like her coming back (p84:9). The RRT failed to consider the make up of the new Government after the elections and that many of the former members of Parliament remained in Parliament including persons whom the Applicant feared.
2.The RRT took into consideration irrelevant facts in reaching its decision:
(i)The RRT considered that as we had not actually been subjected to harm that we did not have a genuine fear of being harmed for a Convention reason in the future (p88).
(ii)The RRT considered that her apparent low level of involvement in the past did not make her a target (p88).
3.The Tribunal having considered irrelevant information and not having considered the relevant information that the applicant provided asked itself the wrong question.
Neither the application nor any submissions presented for the applicant have identified any “relevant material” which has not been addressed by the Tribunal. I have not been able to identify anything that the Tribunal was bound to consider which it did not.
The proposition that “the RRT failed to consider the make up of the new Government after the elections” is clearly wrong, since the make‑up of the new government was identified by the Tribunal as a significant reason for its conclusions.
The matters which the application contends the Tribunal took into account and were irrelevant were, in my opinion, plainly relevant. The fact that it reached findings on these matters which were not those which had been sought by the applicants, does not render its decision invalid.
For the above reasons I have not been able to identify any jurisdictional error affecting the Tribunal’s decision. It is therefore a privative clause decision for which relief is barred under s.474(1) of the Migration Act, and I must dismiss the application.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 12 December 2005