SZGSV v Minister for Immigration
[2006] FMCA 1000
•18 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGSV v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1000 |
| MIGRATION – Review of decision by Refugee Review Tribunal – applicant alleges Refugee Review Tribunal failed to consider his claims – applicant alleges Refugee Review Tribunal failed to find that mistreatment amounted to serious harm – claim that country information not put to the applicant. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36; 36(2); 65; 65(1); 91R; 91S; 477(1A) div.2pt.8 |
| Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 Abebe v The Commonwealth (1999) 197 CLR 510 at 576 SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41 Das v Minister for Immigration & Multicultural Affairs (2004) 208 ALR 229 |
| Applicant: | SZGSV |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG1817 of 2005 |
| Judgment of: | Emmett FM |
| Hearing date: | 10 July 2006 |
| Date of last submission: | 10 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 18 July 2006 |
REPRESENTATION
| Applicant appearing in person |
| Solicitors for the Respondent: | Ms T. Quinn, Phillips Fox Lawyers |
ORDERS
That the name of the First Respondent be amended from “Minister for Immigration and Multicultural and Indigenous Affairs” to “Minister for Immigration and Multicultural Affairs.”
The application before this Court is dismissed.
That the applicant pay the First Respondent’s costs in an amount of $2200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1817 of 2005
| SZGSV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Division 2 Part 8 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 16 December 1998. The Tribunal decision affirmed a decision of the delegate of the Minister for Immigration and Multicultural Affairs (“the Delegate”) dated 16 July 1997. 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”).
The applicant is a 51 year old male who claims to be a citizen of Korea and is of Korean ethnicity (“the Applicant”).
The Applicant arrived in Australia on 24 February 1987, having legally departed from Kimpo Airport on a passport issued in his own name.
On 9 July 1987, the Applicant lodged an application for a protection (866) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
On 16 July 1997, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 22 July 1997, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. On 16 December 1998, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 12 July 2005, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Pursuant to Orders made on 4 August 2005, the Applicant filed an amended application on 14 November 2005 (“Amended Application”) seeking review on 3 particularised grounds. This amended application was filed 18 days out of time.
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.
The Tribunal proceeding
The Applicant appeared at a hearing before the Tribunal on
5 November 1998 and gave oral evidence.
The Tribunal noted that initially the Applicant relied on his statement provided in support of his application for a protection visa. That statement is set out as follows:
“I arrived in Australia Feb. 1987, I escaped there because I worked as a highest possible skilled welder in Hyundai Heavy Industry in Korea and conditions were while I was working:-
1. Did not get paid appropriate wages – despite I was a very skilful welder –
2. Did not get paid for I have done outside normal hours.
3. Work environment was so poor that many of work colleagues have received industrial diseases as the result of above.
Therefore, I have organized demonstration with the collegues to ractify and demanded better conditions.
Since I have organized demonstrations, employer however, called police and beat & arrested me for the leader of that group and detained as result of these instances.
I had no relatives at that time and I was separated from my family and I could not settle myself in Korea. My sister who was then already in Australia always asked me to live with her. Then I made my trip to Australia.”
The Tribunal noted that “the Applicant was not forthcoming when the Tribunal asked about his claims to refugee status and the particular harm he feared if he returned to Korea.”
The Tribunal noted the following:
“Eventually the applicant explained that he was a member of a union from 1979 until 1987, while working as a skilled tradesperson for a large company in Korea. As a member of that union, which was legally recognised by both the factory and government authorities, he sought to improve the conditions and benefits for the workers. He was not in a leadership position but was conscious that his living conditions were better than those of new members. In an attempt to improve those conditions he organised a petition to be signed by other workers and presented to management. He was not successful and so he came to Australia.
Asked if he had any problems as a result of his involvement in the union, the applicant said that about six months before he came to Australia he was demoted from his position as supervisor and was “picked-on” because of his activities. However nothing else happened to him. He decided to come to Australia because the workplace was not as good as previously and he wanted to see his sister.”
The Tribunal found that the Applicant was generally truthful in his claims before it and to the extent that there was any inconsistency between the Applicant’s written statement and his oral evidence, the Tribunal preferred the oral evidence as that evidence was both sworn and given with the assistance of an accredited speaking interpreter.
The Tribunal noted that the Applicant did not claim at the hearing that he would be persecuted for a Convention reason if he returned to Korea.
However, the Tribunal accepted that from 1979 to 1987 the Applicant was a member of a union which was sanctioned by the employer and the government. The Tribunal accepted that the Applicant sought to improve working conditions for other workers and that he was involved in putting a petition before the management that may have resulted in his demotion and being occasionally “picked-on”. However, the Tribunal did not accept that such mistreatment was so serious as to amount to persecution in a Convention sense.
The Tribunal noted that essentially, in its view, the Applicant’s claim was that, having spent so many years in Australia he wished to remain here and would have personal difficulties resettling in Korea.
The Tribunal noted that any such difficulties were not claimed by the Applicant to be so serious as to amount to persecution or that they would arise because of a Convention reason.
The Tribunal identified the independent information to which it had regard and noted that the general political situation in Korea had improved as had the rights and conditions of workers who were now generally better protected under the law. The Tribunal found that, to the extent the Applicant might encounter any difficulties in the workplace if he were to return to Korea, the legal system in Korea would offer him appropriate protection.
For those reasons, the Tribunal was not satisfied that the Applicant has a well founded fear of persecution for a Convention related reason if he were to return to Korea.
The proceeding before this court
On 12 July 2005, the Applicant first filed an application seeking judicial review of the Tribunal decision made on 22 December 1998. On 4 August 2005, the Applicant was granted leave to file an amended application and directed to file and serve any affidavits containing additional evidence by 27 October 2005 and any written submissions in support of his claim not less than two weeks prior to the hearing.
On 23 August 2005, the First Respondent filed a notice of objection to competency on the basis that the Applicant’s application for judicial review was a privative clause decision and was filed more than 28 days after the notification of the decision, in which case this Court had no jurisdiction to entertain the application.
On 14 November 2005, the Applicant filed an Amended Application in the following terms:
“The grounds of the application are:
1. The Refugee Review Tribunal failed to take seriously the contents of my statement dated 9/7/97 which involved serious mistreatment and involvement which to the best of my belief should lead to be accepted as persecution as I have lost my working rights, all my family members left Korea and some of the reasons behind their departure is the fear and persecution which occurred to me.
2. As a result of the mistreatment and detention I started to suffer serious migraine headaches and this is one of the reasons which possibly prevented me from lodging a review with the Federal Court within a specified time rather I have written to the minister and requested ministerial intervention.
3. The RRT accepted me as truthful in my claim and refused to recognise my persecution as a highly profiled person within the company as a result of my actions I suffered physical and mental abuse as well as loss of income and such mistreatment was not fully considered by the Tribunal as leading to meet refugee definition of refugee.
Particulars
1. I rely on my statement contained in the green book and the record of interview and asked that a copy of the transcript would be given to the Honourable Judge to show how the Tribunal erred in law by ignoring or failing to consider my claim seriously or misunderstanding my claim which is very important to my application.
2. The Tribunal failed to consider my circumstances as meeting definition of refugee as a worker who has serious involvement who could be classified as member of social group who had a leadership role and good income which no longer exists and no longer be resumed.”
At the hearing the Applicant sought to rely on a written outline of submissions that also sought to raise two further grounds of complaint.
The first was that country information was not put by the Tribunal to the Applicant at the hearing.
The second was that the Tribunal failed to ask the Applicant questions as to why he had not lodged a protection visa application for 10 years after his arrival in Australia. To some extent, this ground is a further particular of Ground 1 of the Applicant’s Amended Application and is dealt with below under the heading “Ground 1”.
The First Respondent did not oppose the Applicant relying on these further matters.
Moreover, the First Respondent confirmed to the Court, that in the event that the Tribunal decision was not a privative clause decision, the First Respondent would not be asking the Court to refuse any discretionary relief to the Applicant. Because of the concession of the First Respondent, I did not pursue with the Applicant the failure by him to provide any evidence as to his delay in filing an application for judicial review in this Court for more than 6 years from notification of the Tribunal decision.
Ground 1
I understand ground 1 to relate to a complaint by the Applicant that the Tribunal failed to ask questions of the Applicant about his claims of persecution and for those reasons was unable to reach the level of satisfaction required under ss.36 and 65 of the Act.
It is plain from the Tribunal’s decision that the Applicant was provided an opportunity to make further oral claims, which he did. However, the Tribunal noted that “the applicant was not forthcoming” when the Tribunal sought to ask him about his claims in respect of the harm he may suffer if he was to return to Korea and about his claims generally. The Tribunal had regard to the further claims made by the Applicant orally and found him to be generally truthful.
The Tribunal found that it preferred the evidence provided by the Applicant in his oral evidence rather than that contained in his written statement because the oral evidence was given on oath and with the assistance of an accredited Korean interpreter. The Tribunal is entitled to place whatever weight it considers appropriate on the evidence before it and indeed is required to make findings in respect of that evidence (Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 41 per Mason J). However, the Tribunal made it plain that it made no adverse finding in respect of the Applicant arising out of any inconsistency in the evidence contained in his written statement and his oral evidence.
Further, it is not for the Tribunal to make the Applicant’s case for him. It is for the Applicant to satisfy the Tribunal that the criteria required, pursuant to ss.36 and 65 of the Act, for a protection visa are met by the Applicant (Abebe v The Commonwealth (1999) 197 CLR 510 at 576; SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [14]-[16]).
A further particular was raised by the Applicant in his written submissions, namely, that the Tribunal erred in failing to ask him questions about why he did not apply for a protection visa for more than 10 years after his arrival in Australia. It was not a matter pressed by the Applicant at the hearing. Moreover no adverse finding was made by the Tribunal in respect of the Applicant’s conduct in that regard. The Tribunal noted that the Applicant raised the many years he had spent in Australia as the reason why he wished to stay here and would have personal difficulties resettling in Korea. However, the Tribunal noted that there was no evidence to suggest that such difficulties were so serious to amount to persecution or that they would arise for a Convention reason. Moreover, no such claim was made by the Applicant.
Accordingly, in the circumstances, it was not incumbent on the Tribunal to ask the Applicant questions about why he did not lodge an application for protection until some 10 years after his arrival in Australia.
To the extent that ground 1 otherwise seeks merits review, this Court has no jurisdiction to entertain such an application.
For those reasons, ground 1 is not made out.
Ground 2
Ground 2, to some extent, appears to be an attempt at explaining why the Applicant had delayed for more than 6 years in seeking judicial review in this Court of the Tribunals decision. However, such a statement would only become relevant in the event that the Tribunal’s decision is not a privative clause decision and the Court is required to give consideration as to whether, in the exercise of its discretion, any relief ought be granted to the Applicant.
To the extent that ground 2 raises a ground relating to the consequences of any mistreatment in Korea, no such ground was raised by the Applicant before the Tribunal and no such ground is squarely raised by the material before the Tribunal (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263).
For those reasons ground 2 is rejected.
Ground 3
To the extent that ground 3 is a complaint that the Tribunal failed to find that the mistreatment of the Applicant amounted to serious harm, that is finding of fact that was open to the Tribunal and was therefore not reviewable by this Court (Das v Minister for Immigration & Multicultural Affairs (2004) 208 ALR 229 at 237; Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41 at [52]).
The Tribunal accepted that the mistreatment asserted by the Applicant, in being demoted and occasionally picked-on, occurred.
However, it found that such mistreatment was not so serious as to amount to persecution in the Convention sense. The Tribunal also noted that no other past mistreatment was identified by the Applicant at the hearing as a result of his involvement with the union. The Tribunal further noted that the Applicant did not claim he would be seriously mistreated by the authorities for any reason if he were to return to Korea. In the circumstances, the Tribunal’s finding that such mistreatment was not so serious to amount to persecution in the Convention sense was reasonably open to it on the evidence before it. The Applicant did not seek to tender a copy of the transcript or to suggest that the findings of the Tribunal were not in accordance with the evidence before it. Rather, the Applicant disagreed with the Tribunal’s conclusion based on the evidence before it.
Accordingly, this ground is not made out.
To the extent that ground 3 appears to raise a claim by the Applicant that he was a member of a social group “who had a leadership role and good income which no longer exists and no longer exists and no longer be resumed”, no such claim was made before the Tribunal and there was no evidence before the Tribunal of the existence of such a social group that suffered persecution for a Convention related reason.
For those reasons this ground is not made out.
Use of country information
In his written outline of submission, the Applicant claimed that the Tribunal did not put country information to him at the hearing. However, the Tribunal noted that it put to the Applicant the independent information before it and to which it had regard. The Tribunal identified in its decision the nature of that information and noted that the Applicant acknowledged that there had been significant changes but said that “he may not have serious problems if he returned, but said he had lived in Australia so long it would now be impossible for him to settle in Korea.”
In particular the Tribunal noted that, at the hearing, the Applicant made no claims to have organised demonstrations at his workplace or to have been beaten, arrested or detained by the police as a result.
Again the Applicant did not provide a copy of the transcript before this Court as to the Tribunal proceeding. In the circumstances, I accept that the Tribunal decision accurately records what transpired at the hearing. Accordingly, I find that the Tribunal did put to the Applicant the independent information before it to which it had regard as stated by it in its decision.
For those reasons this ground is not made out.
Conclusion
Accordingly, the Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Pursuant to s.477(1A) of the Act, the application being filed more than 28 days after notification of the Tribunal’s decision, the proceeding is incompetent.
The proceeding before this Court is dismissed.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 18 July 2006
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