SZFDL v Minister for Immigration
[2005] FMCA 899
•23 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFDL v MINISTER FOR IMMIGRATION | [2005] FMCA 899 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision by a delegate of the Minister to refuse a protection visa to the applicant – applicant a citizen of Mongolia – where applicant claimed that the Tribunal failed to consider important parts of the applicant’s case – no reviewable error. |
Judiciary Act 1903 (Cth) s. 39B
Migration Act 1958 (Cth) s. 475A
| Applicant: | SZFDL |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 3505 of 2004 |
| Delivered on: | 23 June 2005 |
| Delivered at: | Sydney |
| Hearing date: | 23 June 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Ms Burnett |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application is dismissed.
The Applicant is to pay the Respondent’s costs fixed in the sum of $4,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3505 of 2004
| SZFDL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision made by the Refugee Review Tribunal. The Tribunal conducted a hearing on 29 September 2004. The Tribunal made its decision on 30 September and handed the decision down on 26 October 2004. The Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa to the Applicant.
The applicant is a citizen of Mongolia. He arrived in Australia on
21 February 2004. On 2 April 2004 he lodged an application for a protection (class XA) visa. On 16 April 2004 a delegate of the Minister refused his application for a visa. On 25 May the Applicant applied to the Refugee Review Tribunal for a review of that decision.
The Tribunal invited the Applicant to attend a hearing on 29 September 2004. The services of a Mongolian interpreter were made available by video link up. The Applicant gave oral evidence and the Tribunal says in its decision that the Applicant was asked some questions. The Applicant said that he was not asked any questions. The decision was made the next day and handed down on 26 October.
The Applicant said that he was 24 years of age and not married.
He was a mechanical engineer by occupation. When he applied for a protection visa he made a statement saying that he had left Mongolia fearing persecution for reason of his political opinion. He said that he became a member of the New Leaders Club in 1996 and that this club had been established by young people interested in economic and political progress in his country. He made it clear that the New Leaders Club was not an anti-government organisation. He said his view was that they should support peaceful change of Parliament in the forthcoming election in June 2004. The applicant said that he had taken part in some activities and started to agitate against the Mongolian Peoples Revolutionary Party.
He stated that at the end of December 2003 officers of the National Security Service visited his workplace. He said some members of the New Leaders Club were called to the police station for interview. The Applicant told the National Security Service that he was not involved in any unlawful activity and nor was anyone else in the organisation. A few days after that the club members had a meeting. It was only a few days after that meeting that a security office went to the Applicant's home. The Applicant says that the security officer warned him in a brutal manner that he might face serious consequences if he continued with his political activities. The Applicant spoke to other members of the New Leaders Club who had also been spoken to by the security services officers. The members of the club decided that they should keep a low profile and find a way to leave Mongolia to seek temporary protection in another country.
The Applicant told the Tribunal a number of matters about his family and about the situation in Mongolia. In the Tribunal decision, the Tribunal took notice of events that have occurred in Mongolia since the Applicant had left in February 2004. The Tribunal particularly noted that there had been elections in June 2004 and that the Mongolian Peoples Revolutionary Party had lost a large number of seats. The Tribunal noted that Mongolia now has a coalition government made of democratic parties. The Tribunal did not accept that the Applicant faced any harm from the authorities in Mongolia and the Tribunal was not satisfied that the applicant had a well founded fear of persecution within the meaning of the Convention, on his return to Mongolia.
The Applicant filed an application for review at this Court on
30 November 2004. He asks for an order setting aside the decision of the Tribunal. He also asks for an order that his claim be sent back to the Tribunal for further determination according to law.
The Applicant set out two grounds in his application. First, the Tribunal, he said, has no evidence before it to determine whether he had a well founded fear of persecution within the meaning of the Convention, on his return to Mongolia. Second, the Applicant said that the Tribunal failed to consider some important information on the political situation in Mongolia that was available to it.
The Applicant attended the hearing today and made oral submissions. He was assisted by an interpreter in the Mongolian language. The Applicant told the Court that the Mongolian Peoples Revolutionary Party was still dominant in Mongolia and its leader has been elected as Mongolian President. The Applicant was concerned that despite the electoral changes which had occurred since he left the country there was still no guarantee the Mongolian Peoples Revolutionary Party would not seek to harm him or other members of the New Leaders Club.
I have read the Respondent's written outline of submissions. The Respondent submits that the first ground of the application is without substance. The Respondent submitted, at paragraph 15, that the Tribunal plainly considered a range of country information in relation to the political landscape of Mongolia. The Respondent pointed out that this information was actually put to the Applicant. The Respondent submitted that the Tribunal relied on this material to reach its decision and it was within the power of the Tribunal to do so.
Turning to the second ground, an allegation of a failure to consider important information available to the Tribunal, the Respondent submits that the Applicant has not provided particulars of this ground and it is meaningless. The solicitor for the Minister, Ms Burnett, submitted that there was nothing from the record of the decision to show that the Tribunal failed to consider any relevant information or claims. She further submitted that the country information that the Tribunal relied on was recent and relevant and covered the issues that the Applicant had raised in his application.
Ms Burnett submitted that it is for the Applicant to make out his own case and present it to the Tribunal, it is not up to the Tribunal to make out the Applicant's case for him. In short, she submitted that the Tribunal's decision did not disclose any reviewable error and that the conclusions reached by the Tribunal were open to the Tribunal on the information that it had before it.
Having considered the evidence, I am satisfied that the Applicant attended the hearing and gave oral evidence. Although he told the Court that the Tribunal member did not ask him any questions about his case, it is clear that the Tribunal asked the Applicant a number of questions about his case, as set out on pages 90 and 91 of the Court Book. The decision shows that the Tribunal member made a point of giving the country information to the Applicant and asking for his comments on it. It appears from the record that the Applicant was able to reply to the questions asked by the Tribunal member.
I note that at page 91 of the Court Book the Tribunal reports that the member asked the Applicant whether there was anything that he wished to add. The decision states that the Applicant asked the Tribunal member about the sources of the country information relied on by the Tribunal. The Tribunal told the Applicant that the country information came from the United States State reports, a world history book, a website, and newspaper articles from the New York Times.
I note that on page 91 of the Court Book the Tribunal records that the Applicant was asked whether there was anything else that he wished to state and the Applicant stated that there was not.
The Applicant told the Court that he did not believe that he was able to tell the Refugee Review Tribunal everything that he wanted to say about his case. He said that they did not ask him whether he had additional evidence that he wanted to present. It appears to me that the Tribunal member did ask the Applicant if he wished to make further comments. The Tribunal member appears to me to have given the opportunity to the applicant to put whatever parts of his case he wished to put.
The Tribunal made its decision based on the Applicant's evidence and the country information. It is clear that the Tribunal did not accept all of the matters stated by the Applicant. This of course, is a matter of fact and the Court does not rehear an application on the facts, nor does it substitute its own view of the facts for that found by the Tribunal.
It is the Tribunal that is the fact finding body and not the Court.
To my mind, the Applicant's case before the Tribunal was unsuccessful because the Tribunal did not accept all of the Applicant's assertions.
In particular, the Tribunal did not accept that the Applicant faced harm in the past from Mongolian authorities by reason of his political opinion, or that he faces harm in the future if he returns to Mongolia. The Tribunal set out the reasons why the Tribunal did not accept the Applicant's assertions in two paragraphs on page 94 of the Court book. The Tribunal rejected the Applicant's claim that he was politically active in Mongolia and that he faced harm as a result. The Tribunal did so because of the paucity of the Applicant's evidence. In other words, the Applicant did not provide enough evidence to satisfy the Tribunal. The Tribunal did accept the fact that Mongolia now has a coalition government made of democratic parties. For these reasons, the Tribunal was not satisfied that the Applicant has a well founded fear of persecution within the meaning of the Convention.
I have considered all of the material before me. There is no evidence of bad faith or bias on the part of the Tribunal. I am satisfied that there was evidence upon which the Tribunal was entitled to rely in reaching the findings that it did. I cannot find any jurisdictional error. There is no reviewable error and the application must be dismissed.
As I said, the Applicant has been unsuccessful in his claim. It is the usual procedure that an unsuccessful party will receive an order that he or she pay the costs of the successful party. The Court has discretion to order costs in those circumstances.
In my view, there is no reason why the Court should not make an order for costs in favour of the Respondent. The Respondent assesses it costs on a party and party basis at $4000.00. In my view, having considered the material before the Court, a lump sum of $4000.00. is within the range provided by Schedule 1 to the Federal Magistrates Court Rules. It appears to me to be an appropriate figure for a case where the Respondent has not briefed a barrister.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 28 June 2005
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