SZGXY v Minister for Immigration
[2007] FMCA 1664
•3 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGXY v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1664 |
| MIGRATION – Applicant seeking third review by Tribunal – abuse of process – registry not to accept for filing any further applications. |
| Migration Act 1958 (Cth), ss.91R, 424(1), 474 |
| Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | SZGXY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 158 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 3 October 2007 |
| Date of Last Submission: | 3 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 3 October 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr J. Mitchell |
| Solicitors for the Respondents: | Ms A. Radich of Blake Dawson Waldron |
ORDERS
The application and amended application are dismissed.
The Registry is not to accept for filing any further applications by the applicant for review of the decision of the delegate dated 10 August 2004, or the decisions of the Refugee Review Tribunal dated 28 October 2004 and 21 November 2006, without the prior leave of the Court.
The applicant is to pay the costs of the first respondent fixed in the amount of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 158 of 2007
| SZGXY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 21 November 2006 which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. The applicant filed an affidavit on 14 May 2007 that included details of an amended application.
Background
On 22 July 2004 the applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa. In this application she claimed to fear persecution by other Indonesian citizens on the grounds of her Chinese ethnicity and Christian faith.
The application was refused by a delegate of the first respondent on 10 August 2004 (CB 27) and by the Tribunal on review on 28 October 2004 (CB 62). An application for judicial review was subsequently filed with this Court, and on 4 August 2006 Nicholls FM quashed the decision of the Tribunal and ordered that the matter be reheard according to law (CB 70). The application was again refused by the Tribunal on review on 21 November 2006 (CB 118).
The matter is now before this Court pursuant to an application for judicial review filed on 16 January 2007 and the details of the grounds in the amended application filed in the affidavit of 14 May 2007.
Issues for determination
The issues before the Court are as follows:
·Whether the Tribunal failed to take evidence into account;
·Whether the application is an abuse of the process of the Court.
The application
In her application, the applicant set out three grounds as follows:
(1)The RRT constructively failed to exercise its jurisdiction under the Act because I believe I’m a refugee. I meet the requirement under Protocol Refugee States Article 1A(2).
(2)The Tribunal failed to take into account relevant considerations. RRT was obligated to take into account all of the evidence also to enable the clarification from the fact after time make evidence.
(3)The Tribunal obligated to take into account all of the evidence and also the fact on the ground and also to take consideration who is behind and what the purpose to make a Chinese as a victim or space-goat (sic).
In her amended application contained in the affidavit dated 14 May 2007, the applicant set out the following grounds:
(1)RRT was not satisfied that the applicant’s past harm considered cumulative within the meaning of s.91R.
(2)RRT did not accept that the applicant suffered general discrimination.
(3)RRT did not accept that my suffering was attributable to anti-Chinese riots in May 1988.
(4)RRT made a decision without properly checking the evidence.
Findings as to the grounds of the application
Ground one complains that the Tribunal failed to exercise its jurisdiction because it did not accept that the applicant is a refugee. The Court finds that the Tribunal exercised its jurisdiction without error. The four key elements of the definition of a “Refugee” were set out at CB 119.9 – 121.1. The Tribunal then decided that the applicant did not comply with those elements. Ground one is rejected.
Ground two complains that the Tribunal did not take into account all of the evidence. As stated by the Federal Court of Australia in Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:
The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.
Nor error has been shown. Ground two is rejected.
Ground three complains again that the Tribunal failed to accept or take account of evidence. The Court refers to Lee. No error has been shown. This ground is rejected.
Findings of the Court as to the grounds in the amended application
Ground one complains about the Tribunal not accepting evidence. The Tribunal set out its reasons for finding that the harm considered cumulatively did not amount to persecution within s.91R (CB 130.4 and 131.10). It is for the Tribunal to decide what evidence it accepts or rejects: Lee (ante). This ground is rejected.
Grounds two and three contain claims that the applicant was traumatised by the riots in May 1998, and previous ethnic based violence, and that she feared living in Indonesia as a Chinese person (CB 130.2). Her ethnicity is the Convention basis of her asserted fear (CB 123.5). The Tribunal was not satisfied that the applicant had suffered persecution in the past (CB 130.5). That finding of fact was properly open to the Tribunal and is not subject to review. The Tribunal also considered the applicant’s claim to fear persecution if she returns to Indonesia, on the basis of her own evidence and country information as to the availability of state protection in the event of anti-Chinese acts (CB 131.8). The Tribunal was not satisfied that the applicant’s fears of future harm were genuine or well-founded (CB 130.5 – 130.9).
Ground two is similar to ground one and is rejected for the same reasons. The Tribunal considered the applicant’s claims and rejected vital parts of them, as it was entitled to do: Lee (ante)
Ground three is rejected for the same reasons as grounds one and two.
Ground four alleges that the Tribunal failed to check the evidence before making its decision. The Tribunal was entitled to rely on country information. In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court decided at [11] as follows:
By s.424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.
This is a complaint about the evidence the Tribunal accepted or rejected; that is a matter for the Tribunal: Lee (ante). This ground is rejected.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application and amended application are dismissed.
The applicant applied for a protection visa on 22 July 2004. The delegate decided to refuse to grant a visa on 10 August 2004. The applicant sought a review of that decision, and on 28 October 2004, the Tribunal affirmed the decision of the delegate not to grant the applicant a visa. The applicant sought a review of the Tribunal’s decision by this Court, and on 4 August 2006, the matter was remitted to the Tribunal to be determined according to law. The Tribunal again affirmed the decision of the delegate by decision signed on 21 November 2006, and the applicant filed the present application for judicial review with this Court.
The Tribunal has already affirmed the decision of the delegate twice. The applicant now seeks orders for another review. The Court finds that the applicant is abusing the process of the Court and dismisses the application pursuant to r.13.10(c).
The Court directs the Registry not to accept for filing any further applications by the applicant for review of the decision of the delegate dated 10 August 2004, or the decisions of the Refugee Review Tribunal dated 28 October 2004 and 21 November 2006, without the prior leave of the Court.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 13 November 2007
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