SZFHQ v Minister for Immigration - [2005] FMCA 1724

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFHQ & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1724

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicants are citizens of Mongolia – mother and adult son – credibility.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424, 424A, 441A

Plaintiff S157 of 2002 v Commonwealth (2003) 211 CLR 476
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 40
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162 followed
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA FC 225

First Applicant:

SZFHQ

Second Applicant:

SZFHR

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3722 of 2004

Judgment of:

Scarlett FM

Hearing date:

8 November 2005

Date of Last Submission:

8 November 2005

Delivered at:

Sydney

Delivered on:

8 November 2005

REPRESENTATION

The Applicant:

Appeared in person

Counsel for the Respondent:

Mr Johnson

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Leave is granted to join the Refugee Review Tribunal as second Respondent.
The application is dismissed.
The first Applicant is to pay the first Respondent’s costs fixed in the sum of $4,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3722 of 2004

SZFHQ

First Applicant

SZFHR

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

This is an application for review of a decision of the Refugee Review Tribunal that was handed down on 23^rd November 2004.
The Tribunal affirmed the decision of a delegate of the Minister not to grant Protection Visas to the applicant.
In accordance with the decision of the High Court of Australia in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162 the Tribunal should be joined as the second respondent and I gave leave for this step to be taken at the commencement of the hearing.
The applicants are citizens of Mongolia who arrived in Australia on 14^th August 2002.
On 24^th September 2002 they lodged an application for Protection (class XA) Visas with the Department of Immigration and Multicultural and Indigenous Affairs. A delegate of the Minister refused that application on the 8^th October 2002. The applicant sought a review of that decision.
On 3^rd September 2003 the Refugee Review Tribunal, differently constituted, affirmed the delegate's decision. That decision of the Tribunal was set aside in this Court by consent on 1^st April 2004.
The first applicant attended a hearing of the Tribunal on

14^th September 2004 where she gave evidence in English.

She attended a further hearing of the Tribunal on 15^th October 2004 where she gave evidence with the assistance of a Mongolian interpreter.
The second applicant was still a child when he and the first applicant, who is his mother, arrived in Australia. He was born on the

7^th September 1986 so he is now 19 years of age. He makes no separate claim for refugee status and did not give evidence before the Tribunal.
In her application for a Protection Visa the first applicant claimed that she left Mongolia because she feared persecution for the reason of her political opinion. She stated that as a journalist and editor with the Ministry of Health, she collected a lot of information on corruption and other breaches of the law within the Ministry of Health. She said:
I put a lot of effort to make this information available to the public but failed because of the existing restrictions and censorship. On many occasions I tried to convince my superiors about the necessity of significant changes within the National Ministry of Health. As a result of my activities I became a subject of persecutions, firstly from the part of my superiors and then from the part of the government law enforcement agencies.
The first applicant gave oral evidence to the Tribunal about collecting evidence about corruption and reporting it to her superiors. As a result she was called in by the Mongolian Security Authorities and interrogated. They threatened her with imprisonment if she did not hand over the material. She handed some of it over to the authorities. Later, they came to her home and searched it. They then took the rest of the material away.
The Tribunal noted that independent country information showed that there was a high level of public corruption in Mongolia. A report, quoted at page 96 of the Court Book said:
Corruption is evident in the discipline services, particularly the policy [sic] and customs service, in the public service generally, in the administration of justice, in the electoral process and in the relations between politicians and the world of business. Allegations of corruptions are frequently made and publicised but no effective investigation or prosecution ever seems to follow. The laws against corruption do not seem to be enforced.

Indeed, they seem to be flouted. The penalties are insufficient. Corruption in daily life is becoming accepted as normal.
The Tribunal accepted that the first applicant was a citizen of Mongolia who was employed by the Ministry of Health as a journalist/editor. The Tribunal did not accept that the first applicant collected information about corruption as she had claimed; describing the evidence about information about corruption in the first applicant's written material as non-existent and her oral evidence about the information she had collected as unconvincing. The Tribunal described some of the first applicant's other evidence as inconsistent or exaggerated.
The Tribunal did not accept that the first applicant had obtained information about specific, major instances of corruption and therefore did not accept that the first applicant's fear of harm or imprisonment if she were to return to Mongolia was well founded.
The Tribunal said, at page 98 of the Court Book:
Even if the applicant did uncover such instances, the Tribunal still does not accept that her fear of persecution is well founded because, as the Tribunal put to the applicant, she has little useful information about specific instances of corruption now. She can't recall key details and she has no documentary or other evidence to support any allegation and she is no longer employed by the Health Ministry.
The Tribunal also did not accept that the first applicant would expose what she had learnt or that those involved in specific instances of corruption would fear that she might expose it because she did nothing at all about exposing or reporting the information she claimed to have gathered between 1999 and 2002, by which time she said that the documentary evidence had all been confiscated.
The Tribunal did not accept that the first applicant, as a journalist, assuming that journalists in Mongolia constitute a particular social group for the purposes of the Refugee's Convention, had a well founded fear of persecution within the meaning of the Convention.
No specific claims were made about the second applicant other than that he was the first applicant's son.
In the application filed at this Court on the 22^nd December 2004 the applicants seek orders setting aside the decision of the RRT and remitting the application to the Tribunal for reconsideration.

The grounds in the application are:
a)The Refugee Review Tribunal made an error in understanding the correct test to apply (effectuality of State Protection) and
b)The ground of membership of a particular social group and Convention nexus was not finally decided.
c)The Tribunal has failed to correctly apply a definition of particular social group in relation to the applicant.
The first applicant attended Court for the hearing of the application. She explained that the second applicant, her son, would not be attending as he had to attend studies at a TAFE College. The applicant gave evidence with the assistance of a Mongolian interpreter although she has a very effective command of English.
When asked by the Court to elaborate on why the Tribunal had not applied the correct test as far as the availability of State Protection was concerned, she said that she did not have any proof of that point personally but it seemed to her likely to have happened. She fears that she would be captured if she were to go back to Mongolia.
The senior officers' whose corruption she had reported or who had threatened her are still in Mongolia and were in a position to do her harm. If the information that she has about their corruption was revealed they could face charges so they are interested in silencing her voice. She explained that she was not clear about details when giving evidence to the Refugee Review Tribunal because the security agencies took her documents. If she were to return to Mongolia she knows that the security agency still has those documents.
When asked by the Court why she claimed that the Tribunal had not applied the correct test about her membership of a particular social group, she said that the difficulties that she faced in Mongolia arose not because she was an individual but because she was a journalist. Because of her specialisation as a journalist, she was able to obtain information about corruption and other breaches of the law.
The applicant told the Court that, as she had told the Tribunal, she would like to do a Master’s Degree in Australia and work as a journalist in this country. She believed that she would be able to have articles that she had written published in Mongolia because of her friends and connections within the media.
Whilst she had obtained her first degree in Mongolia, she had also undertaken a one year advanced course in journalism in Russia.

She studied English for four years at university and speaks English as well as Russian and some Korean as well as her native Mongolian.
The applicant said that her son is 19 years of age and was studying at TAFE. He speaks English better than she does. Her son has spent half of his teenage years in Australia and has been educated in the Australian school system. His mind, she said, is civilised, according to Australian cultural norms. If they were obliged to return to Mongolia, not only would she suffer the threats and persecution which she fears but that her son would face difficulty and may not be able to have the same opportunities for study in Mongolia that he expects to have in Australia.
The applicant spoke highly of Australia and expressed a wish to be an Australian citizen and contribute to Australian society. She reminded the Court that the proceedings dealt with two people's lives, those of her son and herself.
The applicant conceded that the major problem for her in the Tribunal's decision was the one of credibility that the Tribunal did not accept all of her claims and was not satisfied that she had made out a case.
For the respondent Minister, Mr Johnson of counsel, submitted a written outline of submissions. He pointed out that it was clear that the Tribunal had rejected the applicant's claims primarily on the basis of credibility. The credibility of an applicant's case has been said to be a matter for the decision making Tribunal par excellence and he referred to Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67].
He submitted that the Tribunal then went further and found that even if it accepted certain claims made by the first applicant, it did not accept that they amounted to persecution within the meaning of the Convention or that the applicant's fear was well founded.
Given those findings by the Tribunal he submitted that it was not necessary for the Tribunal to consider whether the State of Mongolia was able to provide the applicants with effective protection. On the facts found by the Tribunal there was no duty to consider that issue and therefore no relief can flow from that argument.
Mr Johnson submitted that the second ground made by the applicant could not be made out either. He submitted that it was clear that the Tribunal did consider, on the assumption that journalists in Mongolia did form a particular social group, whether the applicant as a journalist had a well-founded fear of persecution within the meaning of the Convention.
The Tribunal considered that the applicant did not have a well-founded fear of persecution within the meaning of the Convention.

He submitted that the finding it made was open to the Tribunal on the material before it and thus there was no jurisdictional error.
The Tribunal, he submitted, cannot grant a Protection Visa unless the Tribunal is satisfied that the criteria for that visa have been fulfilled.

In this case the Tribunal was not satisfied. Counsel referred the Court to the decision of the Full Court in SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 where the Court said that sub-s.65(1) of the Migration Act:
Does not require the decision maker to reach a decision to refuse to grant a visa only if a particular matter is established.

Rather, it requires a refusal if the decision maker is not affirmatively satisfied that the criteria for the grant of a visa in question have been satisfied.
In oral submissions to the Court, Mr Johnson submitted that the only issue before the Court is whether the Tribunal had made a jurisdictional error in deciding the applicant's entitlement to a Protection Visa.

There was no evidence that the Tribunal did not understand the claims that the applicant was making. The Tribunal did not accept the initial aspects of what the applicant was saying. Whilst she had claimed to be a whistle blower and had suffered persecution because of this, the Tribunal did not accept that the applicant had collected the information about corruption in the Health Ministry that she claimed.
He also submitted that the Tribunal did not accept that the applicant would expose the information that she had obtained, assuming that she had such information in the first place.
As the Tribunal had found that the applicant had done nothing at all about exposing this information from 1999 until she left in 2002 when by that stage the material had been confiscated, it was unlikely that she would expose the information now. He also pointed out there was nothing to show an adverse interest in the applicant after April 2002 as set out on pages 98 and 99 of the Court Book. Mr Johnson submitted, in summary, that there were three independent bases upon which the Tribunal based its finding that it did not accept that the applicant had a well-founded fear.
First, the Tribunal did not accept that the applicant had obtained the information that she had claimed. Second, the Tribunal did not accept that if she had such information she would expose what she had learned and third, the Tribunal found that there was nothing to suggest that any corrupt persons had any further interest in the applicant.

In making those findings, which he submitted were all factual findings, the Tribunal plainly was mindful that the applicant's documentary evidence had all been confiscated.
The Tribunal's findings did not need the Tribunal to go ahead and consider the availability of effective State Protection and he submitted, in short, this was just not an effective protection case. The Tribunal had considered, for completion, whether; assuming journalists in Mongolia are a social group, that the applicant faced persecution because she was a journalist and therefore a member of the group.

The Tribunal did not accept that the applicant had such a well-founded fear.
The respondent submits that there is no jurisdictional error and, as was set out in Plaintiff S157 of 2002 v Commonwealth (2003) 211 CLR 476, the decision is entitled to the protection of the privative clause contained in s. 474 of the Migration Act.
In reply, the applicant told the Court that if she were to return to Mongolia she would face persecution for two reasons. First, that the people who were likely to persecute her were still in Mongolia in positions of power and second, that the documents confiscated from her were still in the possession of the security agency and therefore could be used against people whose corruption she had exposed.
I have considered the evidence. I have read through the Tribunal's decision and I have read through the supporting documents in the Court Book. I have not read the decision of the earlier Tribunal which was set aside by consent as I do not consider it to be at all relevant to the applicant's case. The review that I am required to conduct is a review of the decision of the Refugee Review Tribunal handed down on

23^rd November last year.
It is clear that the basic reason why the Tribunal did not accept the applicant's claims was that the Tribunal was not satisfied about the credibility of the first applicant's evidence. As the Tribunal said, her written evidence about information concerning corrupt practices was non-existent and her oral evidence was unconvincing. The Tribunal took the view that some of the applicant's other evidence was either inconsistent or exaggerated. The Tribunal considered that even if the Tribunal were to accept all of the applicant's claims, the claims did not amount to sufficient for the Tribunal to be satisfied that the applicant had a well-founded fear of persecution for a Convention reason.
The Tribunal put to the applicant, and the applicant concedes that this was put to her, that she has little useful information about specific instances of corruption at this stage. She cannot recall key details, she has no documentary or other evidence to support any allegation and she is no longer employed by the Health Ministry. As to the two claims raised by the applicant in her application, I am satisfied that on the basis of the factual findings, which are the province of the Tribunal, that it was not necessary for the Tribunal to consider the effectiveness of State protection. I am satisfied that the Tribunal did, for the purpose of the decision, consider whether the applicant is a journalist, had a well-founded fear of persecution for a convention reason as a member of a social group, being journalists in Mongolia, and the Tribunal assumed for that question that journalists in Mongolia constituted the social group and the Tribunal was not satisfied that the applicant did face persecution for that reason.
The second applicant, who is the son, has made no separate claims and the outcome for him will be the same as that for the applicant.
I am not able to discern any jurisdictional error, either from listening to the parties' submissions or from making my own investigation of the Tribunal decision. I am satisfied that no jurisdictional error appears and that the decision is a privative clause decision that attracts the protection of s.474 of the Migration Act.
The unfortunate situation is that the applicant appears to be an intelligent and well-educated young woman who has a degree of language skills, has a tertiary education and qualified as a journalist in her native country. Her son has been educated in the Australian High School System and speaks better English than the applicant does and the applicant's English is very good. These are not matters that the Court can take into consideration in considering an application for review of a decision of the Refugee Review Tribunal. They may well be matters that an applicant, perhaps with the assistance of a Migration Agent or a good solicitor, could put to the Minister for Immigration and Multicultural and Indigenous Affairs in making an application to the Minister to consider whether it was in the public interest to make a more favourable decision than the Tribunal decision.

Those are entirely matters for the Minister and not matters for the Court. If the applicant were to go down that path, however, she should not adopt that course only at the expense of looking to her legal rights through the Court system. She has a right of appeal against this decision should she wish to do so but she only has a limited time in which to lodge an appeal in the Federal Court. It would be advisable; however, if the applicant were to obtain legal advice to assist her in deciding her best course of action.
On the evidence before me, unfortunately, I have no option except to dismiss the application.
There is an application for costs on behalf of the respondent Minister in the sum of $4,500.00. Normally a successful party can expect to receive an order that the unsuccessful party should pay the successful party's costs on what is known as a party and party basis which may be less than the amount that the lawyers in fact charge their client.

The sum of $4,500.00 is certainly within the range envisaged by the scale in the Federal Magistrates Court Rules and I note that it includes counsel's fees.
To my mind this is a case where the Court would not depart from the usual practice of making an order for costs and the amount of $4,500.00 is certainly an amount the Court would consider reasonable.
I will make an order that the first applicant is to pay the first respondent's costs in the sum of $4,500.00. I will not make any order against the second applicant, even though he is an adult, as he has played no separate part in these proceedings and his claim depends entirely on that of his mother. It also does not appear that he has any separate income of any consequence.
I am also mindful of the fact that the applicant is not in employment at present and is responsible for supporting her son, who is a student. These are matters I can take into account in respect of the granting of time to pay and I propose to do that. Whilst I will be making an order for costs in the sum of $4,500.00 I will allow eight months to pay.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 21 November 2005