SZFSJ v Minister for Immigration

[2006] FMCA 1297

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFSJ v Minister for ImmigrationMINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1297

MIGRATION – Review of decision by Refugee Review Tribunal – unparticularised application before Federal Magistrates Court – Applicant claim fear from former employer in the PRC – Refugee Review Tribunal considered country information – whether Applicant’s fear well founded.

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), s.474; pt.8 div.2

Federal Magistrates Court Rules 2001, r.6.01; sch.1

Applicant: SZFSJ

First Respondent: Minister for Immigration & Multicultural Affairs & AnorMINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG367 of 2005

Judgment of: Emmett FM

Hearing date: 22 August 2006

Date of last submission: 22 August 2006

Delivered at: Sydney

Delivered on: 22 August 2006

REPRESENTATION

Counsel for the Applicant:The Applicant appearing on his own behalf

Solicitors for the Applicant:

Counsel for the Respondent:
Solicitors for the Respondent:	Mr J. Bird, Phillips Fox

ORDERS

(1)That the applicant pay the first respondent’s costs in the amount of $3000.

(1)I also make the usual joinder orders in this matter, joining the Refugee Review Tribunal to the proceeding as the second respondent.

(1)I order that the name of the first respondent be amended to the Minister for Immigration & Multicultural Affairs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG367 OF of 2005

SZFSJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS& ANOR

First Respondents

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1.This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2A of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 10 December 2004.

1.The Tribunal decision affirmed a decision of the delegate of the Minister for Immigration & Multicultural Affairs (“the Delegate”) dated 22 September 2004. 

1. The application for a protection visa was refused on the basis that the applicant is not a person to whom Australia has protection obligations in accordance with the Refugees Convention as amended by the Refugees Protocol (“the Convention”).

2. The applicant was born on 13 October and claims to be a citizen of the People’s Republic of China (“the PRC”).

3. The applicant arrived in Australia on 2 September 2004, having legally departed on a passport issued in his own name and a visa issued on
   4 June 2004. 

4. On 16 September 2004, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) and, in his protection visa application, the applicant claimed that he feared persecution by his employer because he accused his manager of bribery. 

5. On 22 September 2004, the delegate Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations.

6. On 19 October 2004, the applicant lodged an application for review of the delegate’s Delegate’s decision with the Refugee Review Tribunal. 
   On 10 December 2004, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

7. The applicant’s claims before the Tribunal and the decision of the Tribunal are accurately set out in the first respondent’s written outline of submissions at paragraphs 4, 5 and 6:, and I refer to those paragraphs as if they were herein set out.

   “4. The applicant claimed that he worked in a factory in the PRC where the manager bribed Government officials for personal benefit. The applicant made complaints about his manager being corrupt. The applicant claimed that his manager refused to give him a salary increase as he had spoken out against bribery in the factory.

   5. The RRT noted at the outset of it’s (sic) decision that it had difficulties in obtaining evidence from the applicant at hearing. However, it was not prepared to draw adverse conclusions based on the applicant’s apparent “unwillingness or inability to clearly express his claims”.

   6. The RRT accepted that the applicant previously worked in a factory in the south east of the PRC for approximately 20 years. The RRT accepted that the applicant made complaints about his manager from about 1998 and that he was never fired, sacked or retrenched from his job. The RRT accepted that the applicant left the factory in 1998 because he could not get the salary he believed he was owed and that he had obtained work as a self-employed street merchant.

   6.1 The RRT did not accept that the applicant’s former factory manager retained any adverse interest in him. This was due to the fact that the applicant’s boss had maintained his employment and that the applicant had ceased employment 6 years prior.

   6.2 Further, based on country information, showing the increase in job opportunities in the PRC, the RRT did not accept that the applicant couldn’t find work in another factory. The RRT did not accept that the applicant’s alleged “bad record” prevented him from securing other work.

   6.3 The RRT concluded that based on the evidence, it did not accept that any adverse interest in the applicant was for a Convention reason.”

8. On 10 February 2005, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.  That application is in the following terms, and I refer to that document as if it was herein set out in full.:

   “The grounds of the application are:

   1. There is an error of law in the Tribunal’s decision because the Tribunal ignored the facts and made an inappropriate decision.”

9. The applicant was unrepresented before the Court this afternoon, however, had the assistance of a Mandarin interpreter.  I know note that the applicant has participated in the pPanel aAdvice sScheme and received advice on 22 April 2005. 

10. The applicant’s application before this Court discloses no particulars in support of the ground. Despite being invited to make submissions this afternoon in support of his application, the applicant had nothing to say, other than that he liked Australia and just did not want to go back to the PRC.  The applicant expressed the hope that the Australian Government would let him stay because he would like to stay.

11. I explained to the applicant the limited nature of the role of this Court in reviewing the decision of the Tribunal and that, unless the decision of the Tribunal is affected by jurisdictional error, this Court has no jurisdiction to interfere.

12. Directions were made by consent in respect of this matter in February 2005 when the matter was set down for hearing and the applicant was granted leave to file an amended application and to file any evidence in support of his application.  No other document has been received from the applicant by this Court or the first respondent in respect of his application.

13. The applicant told the Court, that his residential address and address for service changed about a year ago and acknowledged that he had not brought this to the attention of the first respondent or the Court but that he had given those details to his solicitor.  The applicant at other times spoke of an agent who was assisting him.  However, as was pointed out to the applicant, there is nothing before the Court to suggest that the applicant is represented in this proceeding in any way.  Indeed, the applicant confirmed that it is his signature on the application filed in this Court, being the only document lodged by him or on his behalf.

14. The applicant’s claims before the Tribunal were in respect of harm feared from his former employer and that his employer stopped him obtaining more money or alternative employment.  The Tribunal did not accept the applicant’s claims and did not accept that the applicant was prevented from obtaining a job or getting alternative work.

15. The Tribunal had regard to country information before it that indicated that there were growing job opportunities in the private sector in the PRC.  The Tribunal otherwise did not accept that the applicant would not have been able to secure other employment commensurate with his skills if he had sought such work.  The Tribunal did not accept that the applicant’s difficulties with his employer would have prevented him from securing other work.  The Tribunal stated that, based on the country information before it, it was satisfied that if the applicant’s record was as bad as he had sought to make out, he would not have been allowed to continue to work in his former factory until 1998.

16. The Tribunal essentially did not accept the claims made by the applicant.  The Tribunal identified in some detail the exchanges that it had had with the applicant about the applicant’s claims and the concerns it had with such claims. 

17. The Tribunal concluded:

    “…I do not accept the applicant was prevented from securing employment at least commensurate with his skills for the reasons he claimed; secondly, I do not accept that his former factory manager or anyone else, had any continuing interest in him; and, thirdly, that even if they did, based on the evidence considered, I do not accept that a significant and essential reason for any such interest in him would be for one of reasons in the Refugees Convention.”

18. For those reasons, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason in the PRC.

19. Those are findings of fact that were open to the Tribunal on the evidence and material before it.  The first respondent confirmed that it had considered the entirety of the Tribunal’s decision and not just the ground upon which the Applicant relied. The first respondent submitted that the decision contained no error.

20. In the circumstances, the decision of the Tribunal is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Migration Act, this Court has no jurisdiction to interfere.

21. The application is dismissed.

22. The first respondent seeks costs fixed in the amount of $3000.  I note that the relevant schedule at the time is Schedule 1 of the Federal Magistrates Court’s Rules 2001 prepared on 29 March 2004 and I note that the sum sought by the first respondent is in fact less than the amount provided by the schedule.  I also note that the first respondent has indicated that costs incurred by the first respondent are in the order of $3600.  In the circumstances, I am satisfied that the amount sought is reasonable. 

ORDERS DELIVERED

1. I note that the applicant has informed the Court this afternoon that his current address for service, and indeed his residential address, is [address supplied] and, in the light of that information, I grant leave to the applicant to be excused from complying with r.Rule 6.01 of the Federal Magistrates Court Rules 2001 that would otherwise require the filing of a document notifying an address for service. 

I certify that the preceding twenty-three () (23) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:  S. Tsang

Date:  25 August 2006