SZGSR v Minister for Immigration
[2006] FMCA 882
•21 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGSR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 882 |
| MIGRATION – Review of decision by Refugee Review Tribunal – unparticularised generic grounds – use of independent information. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36; 36(2); 65; 65(1); 91R; 91S; 424(1); 424A(1); 424A(3)(a); 474; 483 |
| Applicant: | SZGSR |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG1813 of 2005 |
| Judgment of: | Emmett FM |
| Hearing date: | 9 June 2006 |
| Date of last submission: | 9 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 21 June 2006 |
REPRESENTATION
| Applicant appearing in person |
| Solicitors for the Respondent: | Mr A. Cox, Phillips Fox Lawyers |
ORDERS
The application before this Court is dismissed.
That the Applicant pay the First Respondent’s costs in an amount of $3600.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1813 of 2005
| SZGSR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 24 May 2005 and handed down on 14 June. The Tribunal decision affirmed the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection visa to the applicant.
The applicant is a 23 year old male who claims to be a citizen of Mongolia and of Chinese ethnicity (“the Applicant”).
The Applicant arrived in Australia on 3 January 2005, having legally departed from Ulaan Baatar on a passport issued in his own name.
On 28 January 2005, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
The Applicant claimed that he feared persecution due to his Chinese ethnicity. He claimed that he faced discrimination throughout his life, including losing his Mongolian girlfriend due to the attitudes of her parents and other family members.
On 7 February 2005, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant does not have a well founded fear of persecution for a Convention reason and is, therefore, not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 7 March 2005, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Tribunal affirmed the decision of the Delegate not to grant a protection visa in a decision handed down on 14 June 2005.
On 11 July 2005, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia owes protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
Tribunal proceeding
The Applicant gave oral evidence to the Tribunal.
The Applicant filed his application for review by the Tribunal on
7 March 2005. On that date, the Applicant was sent a letter inviting him to provide any further material to the Tribunal.
On 14 April 2005, the Applicant was invited to attend a hearing before the Tribunal on 24 May 2005 and again invited to send to the Tribunal any further documents or arguments he wished the Tribunal to consider. That letter also informed the Applicant that the Tribunal had considered the material before it in relation to the application but was unable to make a decision in favour of the Applicant on that information alone.
In fact, there was no material provided by the Applicant to the Tribunal in support of his review application. In his primary application, the Applicant stated that he would provide details later. No further details were ever received from the Applicant, either by the Delegate or by the Tribunal.
In his primary application for protection, the Applicant claimed that he was discriminated against in Mongolia because of his Chinese ethnicity. He made no other claim before the Tribunal of persecution for any other reason. He told the Tribunal that it was hard for him to get a job in service companies in Mongolia and that his relationship with a Mongolian girl was contrary to the wishes of her family.
The Tribunal noted that it asked the Applicant what job he was qualified to do and that the Applicant responded that he was trained as a sports teacher who taught fitness and physical development and, particularly, wrestling. The Tribunal noted, consistent with the information in his primary application, that the Applicant agreed that he had taught at a high school immediately before coming to Australia.
The Tribunal noted that it had consulted a number of “usually reliable sources”, being the United States State Department Annual Report on Human Rights Practices, Human Rights Watch reports and Amnesty International reports. The Tribunal put to the Applicant that nothing in any of those sources revealed any discrimination against Chinese people in Mongolia and that in fact trade between China and Mongolia was booming. The Tribunal noted that it asked the Applicant if he had anything to add in respect of this information and noted the Applicant’s response that he did not.
The Tribunal noted that the Applicant was able to complete tertiary education and to obtain employment in accordance with his training and qualifications. The Tribunal did not accept that the Applicant had been or would be denied employment for reasons of his ethnicity.
The Tribunal found that the Applicant had not suffered persecution of a Convention related nature. The Tribunal found that there was not a real chance that the Applicant would be attacked or threatened with death for reason of his ethnicity and therefore did not accept that there is a real chance that the Applicant would suffer harm amounting to persecution for a Convention related reason should he return to Mongolia in the foreseeable future.
The Tribunal concluded that the Applicant did not have a well founded fear of persecution in Mongolia by reason of his race or ethnicity or for any other Convention related reason.
The hearing before this court
The Applicant was unrepresented at the hearing before this Court. The Applicant said that he had not brought any of his Court documents to this Court for the hearing because he had “forgotten them”. The First Respondent provided him with copies. The Applicant did not suggest there were documents of any other nature that he had forgotten to bring.
The Applicant stated that he was very anxious at the Tribunal hearing, that the Tribunal member was very harsh, made him feel guilty and concluded that he was telling lies. The Applicant said that he was quite scared of the Tribunal member because he was showing him many documents and ignoring the Applicant’s evidence. The Applicant said that the Tribunal member only considered material and documents from the internet and that they would not disclose hidden matters. The Applicant also submitted that he had no legal knowledge.
On 8 July 2005, the Applicant filed his first application for judicial review of the Tribunal’s decision. That application was of a generic nature with no particulars. On 4 August 2005, directions were made by consent providing an opportunity for the Applicant to file an amended application with full particulars. He was also directed to file any further evidence upon which he intended to rely, including a transcript of the Tribunal hearing on 27 October 2005, and written submissions 14 days before the hearing. The Applicant filed an Amended Application on
21 October 2005. No other document has been received from the Applicant.
The Applicant relied on an amended application (“the Amended Application”) filed in this Court on 21 October 2005 in the following terms:
“On the following grounds.
That the RRT decision was effected to take into account a relevant consideration when it assessed weather the delegate of the Minister raised reasonable grounds for not granting a protection visa.
Particulars:
The tribunal did not properly consider in assessing the chance of my persecution and persecuted on my return to Mongolia based on the member of a particular social group in Mongolia. I was persecuted because I was discriminated in Mongolia. If I persecuted by the Authority it is not possible for me to live safely in Mongolia. I will be persecuted if I return back to Mongolia because of my chine backgrounds. It is a convention base persecution. I have no documentary evidences to establish my persecution. I provide my oral evidence to support my claims.
It is true I did not collect relevant documentary evidences to prove my persecution. Because I have no one to help me to collect more documents.
The Tribunal’s satisfaction that I am not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief.
The tribunal did not observe Migration Act 1958 properly to making the decision.
The Tribunal failed considered my claims with the proper way which the migration Act 1958 provided.
I will provide more details to support my judicial review application in my outline of submission.
Particulars:
The Tribunal did not provide me adequate particulars of the independent information.
The Tribunal did not provide me an adequate opportunity to respond the substance of the information.
The Tribunal finding that the totality of the country information does not show that Chinese background persons are persecuted in Mongolia.
I attend the Tribunal hearing, I informed to the tribunal hearing regarding my persecution. Without any reason the tribunal did not properly consider my genuine claims.
Without the proper consideration of my oral evidence if the tribunal made decision the decision effected by the procedural fairness. I refer High Court Judgment plaintiff S157 v Commonwealth of Australia (4 February 2002). And SAAP v MIMIA [2005] HCA 24 (18 May 2005).
I did not receive any advice from the pilot scheme lawyer yet. I am not represented by any solicitor.
I repeat the claims as relief which I provided in my application under judiciary act 1903.”
I have understood the Amended Application to disclose the following grounds.
Ground 1 - That the Tribunal decision was affected by jurisdictional error to take into account a relevant consideration when it assessed whether the Delegate of the Minister raised reasonable grounds for not granting a protection visa
There were no particulars provided in respect of this ground and the Applicant made no further submission in respect of it. No transcript was filed by the Applicant.
In the circumstances, it is not possible to discern to what the Applicant may be referring. Nothing on the face of the decision would reveal any such error as alleged by this ground.
Accordingly, this ground is not made out.
Ground 2 - That the Tribunal failed to consider whether or not the Applicant may be persecuted on his return to Mongolia based on his membership of a particular social group in Mongolia
It is quite clear from the Applicant’s primary application, review application and oral claims before the Tribunal that the only basis for the Applicant’s claim was his Chinese ethnicity in Mongolia. The Tribunal considered and rejected that claim by the Applicant, after giving reasons and making appropriate findings. No membership of any particular social group was alleged before the Tribunal and no further particulars were furnished in support of this ground.
Accordingly, this ground is not made out.
Ground 3 - That the Tribunal’s decision was not a rational or logical decision
No particulars are furnished in respect of this decision. Certainly, the Tribunal took steps to inform itself from sources identified by it, referred to above, as to discrimination against people of Chinese ethnicity in Mongolia.
It was for the Applicant to satisfy the Tribunal that he met the criteria for a protection visa (ss.36 and 65of the Act). The Tribunal considered the Applicant’s written claims and oral evidence and, having found that any fear held by the Applicant was not well founded, that being one of the criteria, it rejected his application for a protection visa. That is a finding of fact that was open to the Tribunal on the evidence before it and for which it provided reasons. There is nothing on the face of the decision to allow for the conclusion that the Tribunal’s decision was not a rational or logical decision and none was identified by the Applicant.
Accordingly, this ground is not made out.
Ground 4 – That the Tribunal failed to observe the Migration Act in making its decision
Again no particulars are provided in respect of this ground. There is nothing apparent on the face of the Tribunal’s decision that would indicate any failure to comply with any obligations under the Act. In the first part of its decision, under the heading “Definition of Refugee,” the Tribunal recited the matters of which it needed to be satisfied. The Tribunal’s summation is accurate and the tests referred to were relevant and were properly applied by the Tribunal to the facts as the Tribunal found them.
Accordingly, this ground is not made out.
Ground 5 – That the Tribunal did not provide the Applicant with adequate particulars of the independent information nor an adequate opportunity to respond to the information.
Section 424(1) of the Act entitles the Tribunal to obtain information it considers relevant and to have regard to it. Section 424A(3)(a) excludes from the requirements of s.424A(1) any obligation by the Tribunal to provide particulars of that information to the Applicant.
However, the Tribunal did, in fact, identify to the Applicant the result of its inquiries from its sources and invited the Applicant to comment upon them. The Tribunal noted that the Applicant said that he had nothing else to add.
Accordingly, this ground is not made out.
Conclusion
The First Respondent submitted that there was no other error in the Tribunal’s decision capable of amounting to a jurisdictional error.
Whilst the Tribunal does refer to the Applicant’s primary application in which he stated that he could not get a job, that information does not form part of the reason that the Tribunal rejected the Applicant’s claims. The Tribunal did not accept that the Applicant had been denied employment by reason of his ethnicity, because the Applicant had agreed with the Tribunal member that he had in fact taught at a high school immediately prior to coming to Australia. In those circumstances, there was no failure by the Tribunal to comply with its obligations under s.424A(1) of the Act.
In the circumstances, the Tribunal decision is a privative clause decision and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
Accordingly, the Applicant’s application is dismissed.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S.Kwong
Date: 15 June 2006
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