SZGOY v Minister for Immigration
[2006] FMCA 907
•23 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGOY v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 907 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in the Philippines by insurgents – no reviewable error found – application dismissed as incompetent as filed out of time. |
| Migration Act 1958, ss.422B, 424A, 477 |
| Abebe v Commonwealth of Australia (1999) 197 CLR 510 Minister for Immigration v Lay Lat [2006] FCAFC 61 Minister for Immigration v NAMW (2004) 140 FCR 572 Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZGOY |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1647 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 23 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 23 June 2006 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Ms T Wong |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Minister’s Objection to Competency is upheld.
The application is dismissed as incompetent.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1647 of 2005
| SZGOY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”). The RRT decision was handed down on 19 May 2005. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from the Philippines and had asserted a fear of persecution at the hands of the New People's Army. I adopt as background for the purposes of this judgment paragraphs 3 to 13 of the Minister's written submissions filed on 15 June 2006:
The applicant was born in Lucena City, Philippines on 28 April 1979 and is a citizen of the Philippines: court book, pages 15, 16. She arrived in Australia as a visitor on 31 October 2004: court book, page 77.
In November 2004, the applicant made an application for a protection visa to the Minister for Immigration and Multicultural Affairs: court book, page 1. On 10 November 2004, the Minister’s delegate refused to grant the applicant a protection visa: court book, page 38.
On 24 December 2004, the RRT received an application for review of the decision of the Minister’s delegate: court book, page 48. On 30 December 2004, the RRT wrote to the applicant acknowledging receipt of the application and inviting the applicant to immediately send to the RRT any documents, information or other evidence which the applicant wanted the RRT to consider: court book, pages 53-54.
On 14 January 2005, the RRT invited the applicant to a hearing: court book, page 55. On 10 February 2005, the RRT rescheduled the hearing and on 17 February 2005, the applicant attended a hearing before the RRT: court book, pages 60-61, 68.
On 19 May 2005, the RRT sent a letter to the applicant, notifying the applicant of the RRT’s decision to affirm the decision of the Minister’s delegate: court book, page 72.
On 24 June 2005, the applicant filed an application for review in this Court. On 26 October 2005, the applicant filed an amended application for review (the “amended application”).
The applicant’s claims
The applicant claims to have a well-founded fear of persecution by persons who had lent money to the Applicant for a business venture and a guerrilla group named the New People’s Army (the “NPA”). During her hearing before the RRT, the applicant made the following claims (court book, pages 80-82):
a)the applicant’s family had incurred large debts for her business and the applicant feared that the people collecting the debts would accuse her of fraud and that the police would be unable to protect her; and
b)the NPA was causing problems for her family, demanding rice and food and vandalising their house if they failed to pay the revolutionary tax. Police protection was available, however the police responded slowly.
The RRT Decision
The RRT commenced its decision by reviewing the legal principles applicable to determining whether the applicant was entitled to a protection visa: court book, pages 77-79. The RRT then summarised the applicant’s claims made in her application for a protection visa and evidence provided to the RRT during hearing: court book, pages 79-81. The RRT then referred to independent country information regarding the NPA and its activities: court book, pages 79-83.
The RRT was satisfied that the applicant was a national of the Philippines, and assessed her claims against that country: court book, page 83. The RRT accepted that the applicant ran a small business, that she borrowed money for the business and that she was concerned about the repayment of those debts: court book, page 83. The RRT concluded, however, that debt recovery by the applicant’s creditors would be motivated by private commercial considerations, and would not amount to Convention-related persecution: court book, page 84.
The RRT was not satisfied that the applicant was subject to persecution from the NPA, for three reasons (court book, pages 84-86):
a)the applicant and her family had stable accommodation, employment and business arrangements in recent years, and their overall circumstances did not indicate that they had been subject to persecution;
b)the RRT would have expected that a credible account of serious, sustained NPA action against a family in the applicant’s area would attract attention from the authorities and possibly others, and that this would generate evidence to corroborate the applicant’s claims, however the applicant had no such additional evidence; and
c)the RRT could find nothing in the applicant’s or her family’s profile which would explain persistent NPA targeting.
The RRT was not satisfied that the applicant had been subject to persecution from the NPA or anyone else, for any reason and found her evidence on these matters to be unreliable: court book, page 85. The RRT affirmed the decision of the Minister’s delegate not to grant a protection visa: court book, page 86.
The applicant relies upon her amended application filed on 26 October 2005. The Minister objects to the competence of that application because of the operation of s.477(1) of the Migration Act 1958 (Cth) (“the Migration Act”). At the time the judicial review application was filed, the operation of the time limit under s.477 depended upon the decision under review being free from jurisdictional error. The Minister’s objection was therefore heard concurrently with the hearing of the judicial review application. The amended application contains three grounds. These are dealt with in paragraphs 15 to 24 of the Minister's written submissions. Subject to my observations at paragraph 3 below, I agree with and adopt those paragraphs for the purposes of this judgment:
The applicant’s grounds of review stated in her amended application can be summarised as follows:
a)the RRT failed to give the applicant an opportunity to comment upon independent country information, in breach of s.424A and common law requirements of natural justice (“Ground 1”);
b)the RRT failed to consider whether the authorities were willing to provide protection to the applicant from persecution by the NPA and erred in determining that the demands of the NPA did not represent a serious threat or persecution within the meaning of the Convention (“Ground 2”); and
c)the RRT failed to consider the applicant’s claim that the reasons for her fear of persecution was based upon her reluctance to meet the demands of the NPA and a conflict between the NPA members and her family (“Ground 3”).
Ground 1: Breach of s.424A and requirements of natural justice
The applicant claims that the RRT “ought to have informed me in advance of its intention to rely, at least marginally, on the independent country information to determine my own matter”. The applicant claims that the failure of the RRT to give the applicant an opportunity to comment on the independent country information constituted a breach of s.424A of the Act and a failure to meet the requirements of natural justice.
Pursuant to ss.424A(3)(a) of the Act, the RRT was not required to give the applicant an opportunity to comment upon independent country information, as the information in question was “not specifically about the applicant or another person”: see Minister for Immigration v NAMW (2004) 140 FCR 572 at 600.
Part 7, Division 4 of the Act is an “exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”, meaning that any common law requirements of natural justice with respect to providing an opportunity to comment on independent country information were not applicable to the RRT when hearing the applicant’s case: see s.422B; Minister for Immigration v NAMW (2004) 140 FCR 572 at 600; Minister for Immigration v Lay Lat [2006] FCAFC 61 at [66]-[70].
Ground 1 of the amended application fails to demonstrate jurisdictional error.
Ground 2: Failure to availability of state protection
The applicant claims that the RRT:
failed to consider whether the authorities were willing to provide protection to me in circumstances where I claimed that my family and I had been threatened by the New People’s Party (NPA). The view arrived by the Refugee Review Tribunal that the demands of the NPA did not represent a serious threat or persecution within the meaning of the Convention is an error. A reasonable Tribunal could not have made such assertions without evidence.
The applicant’s submission fails to have regard to the reasons given by the RRT for rejecting the applicant’s claims to have been persecuted by the NPA. The RRT carefully analysed the applicant’s claims in the context of available independent country information, and concluded that the applicant’s evidence was unreliable. The making of such a finding was a function of the RRT “par excellence”: Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at [67].
The applicant provides no particulars for her claim that the RRT fell into error by making these findings. Having determined that the applicant was not persecuted by the NPA, the RRT was not required to make any finding as to whether the applicant would receive effective state protection from the NPA by Philippines authorities. No error is demonstrated in the portion of the RRT’s reasons for decision rejecting the applicant’s claim to fear persecution by the NPA.
Ground 3: Failure to consider claim
The applicant argues that the RRT failed to consider her claim that she was reluctant to meet the demands of the NPA, and that there was a conflict between the NPA members and her family. The applicant further states that “the Tribunal failed to investigate the motive of my persecutors; and therefore failed to complete its jurisdiction as required by law.”
As stated above, the applicant’s claim to have been persecuted by the NPA was considered in detail by the RRT and no error is demonstrated in the manner in which the RRT approached its task. It was for the applicant to present evidence in support of her claims: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ. The RRT was under no duty to inquire into the applicant’s claims, and certainly under no duty to investigate the motives of the applicant’s persecutors. Ground 3 does not demonstrate any jurisdictional error in the RRT’s decision.
Ground 2 of the amended application asserts a failure to consider the availability of state protection. Ordinarily, where persecution is asserted at the hands of non-state agents, an obligation to consider the availability of state protection will only arise where a decision maker concludes that there is a real risk of persecution. Plainly, if there is no risk of persecution, the existence or absence of State protection is irrelevant. In this case the RRT found that the applicant did not face a real risk of persecution at the hands of the New People's Army. However, in reaching that conclusion the RRT took into account action taken by the Philippines Government to suppress the NPA. The consequence is that State protection was, in effect, considered in the context of concluding that the risk of persecution by the NPA was inconsequential.
The amended application does not establish any jurisdictional error in the decision of the RRT. The applicant had the opportunity to make oral submissions in support of her application but limited her submissions to her personal circumstances. She continues to believe that she cannot return to the Philippines. She told me that her family circumstances had changed from what is set out on page 80 of the court book. The applicant has six siblings. At the time of the RRT decision one was in the United States, one was in Australia and one was en route to Taiwan. The other three lived together in the Philippines. The applicant told me from the bar table today that her three siblings in the Philippines have, since the RRT decision, moved to the United States. The concentration of her family in the USA may be a factor relevant to her consideration of her future options. That is a matter for her.
I find that the decision of the RRT is a privative clause decision and hence the application must be dismissed.
Because the decision is free from jurisdictional error, the effect of s.477(1) of the Migration Act is that the application originally filed on 24 June 2005 was filed out of time. I must accordingly uphold the objection to competency and dismiss the application as incompetent. As I have previously observed I do not regard that outcome after a final hearing as converting what would otherwise be final orders into interlocutory orders.
The orders that I will make are that the Minister's objection to competency is upheld and the application is dismissed as incompetent.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $4,200 on a party/party basis. The applicant did not wish to be heard on costs. I accept the Minister's assessment. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $4,200.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 28 June 2006
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