SZGZF v Minister for Immigration
[2005] FMCA 1740
•24 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGZF v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1740 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in North Korea – whether the RRT breached ss.425 or 424A of the Migration Act 1958 (Cth) considered – no reviewable error found – application dismissed. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36, 91R, 424, 424A, 425 |
| NAGV & NAGW of 2002 v Minister for Immigration [2005] HCA 6 NBLB v Minister for Immigration [2005] FCA 1051 |
| Applicant: | SZGZF |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2208 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 24 November 2005 |
| Delivered at: | Sydney |
| Delivered on: | 24 November 2005 |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Mr R Beech-Jones |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Refugee Review Tribunal is joined as the second respondent to the application.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2208 of 2005
| SZGZF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS 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 decision was signed on 29 July 2005 and notified to the applicant by letter dated the same day. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant claims to be from North Korea and had made claims of political persecution. Relevant background facts are set out in paragraphs 2-4 in the Minister's written submissions. I adopt those paragraphs as background for the purposes of this judgment:
The applicant claimed she had a well founded fear of persecution if she was to return to North Korea for reason of the political opinion that would be imputed to her from her defection to China. Her claims were set out in her protection visa application (court book, pages 23 to 24), submissions lodged by her migration agent to the RRT (court book, pages 71 to 88) and in her oral evidence to the RRT (court book, pages 100 to 105). In summary the applicant claimed that:
(i)she was born on 13 January 1967 in North Korea and was of Christian religion (court book, page 16);
(ii)in late December 1994 or early January 1995 she left North Korea for China because of hunger (court book, pages 18 and 23.5);
(iii)after a year she returned to North Korea to visit her mother but one year later again left for China to escape hunger (court book, page 23.7);
(iv)she commenced a de facto relationship with a man in China and became pregnant to him. She was then kicked out of the house and sent to another household (court book, page 23.6);
(v)eventually she obtained a false passport and travelled to Malaysia and in Malaysia was put on a plane and came to Australia (court book, page 23.10);
(vi)she fears that if returned to North Korea she would be punished by the North Korean government (court book, page 24).
In addition, her agent submitted that the applicant did not wish to return to South Korea as she did not regard herself as a South Korean citizen and she feared that as a North Korean she would be subject to monitoring and suspicion by the South Korean government in the way that South Koreans are not (court book, page 81.3).
In its decision the RRT set out the constituent elements of the definition of a refugee (court book, pages 2 to 3) including the terms of sub-section 36(3), (4) and (5) of the Migration Act 1958 (Cth) (“the Migration Act”) (court book, page 97.7), summarised the claims and the evidence before it (court book, pages 98 to 111) including the “country information” (court book, pages 105 to 111) and then set out the findings and reasons for its decision (court book, pages 111 to 114). In summary, the RRT found that:
(i)it was unable to be satisfied as to the applicant’s nationality however, it gave the applicant the benefit of the doubt that she was a citizen of North Korea and that she departed North Korea illegally at some point (court book, page 113.1). However it did not accept she resided in North Korea for a period of 29 years as she claimed (court book, page 112.7);
(ii)it noted that she had a right to enter and reside in South Korea and she had not taken “all possible steps to avail herself of this right” (court book, page 113.4);
(iii)it appeared to accept that, as a North Korean, she would face a screening process and a degree of social ostracism but did not consider that this harm was a degree or kind which amounted to “serious harm” which was required by s.91R of the Act (court book, page 113.7);
(iv)it was noted that there was the possibility of arbitrary arrest or detention but did not consider that the chance of this occurring it was more than remote (court book, page 113.10);
(v)it did not accept the applicant held any fear for her sister’s life (in North Korea) should the applicant reside in South Korea; and
(vi)it followed that by operation of s.36(3) that Australia did not have protection obligations and it was not satisfied that the exempting sections in sub-section 36(4) or (5) were applicable (court book, page 114.5).
The applicant relies upon an amended application filed in court by leave today. That application purports to raise four grounds, however only grounds 3 and 4 raise a legal issue. Ground 3 challenges the RRT decision on the basis that the RRT failed to comply with s.425 of the Migration Act. The particular is that the RRT did not invite the applicant to state whether she had stated any steps to reside in South Korea. On its face, this particular makes no sense because it was plain to all concerned in this case that the applicant had never lived in South Korea. The applicant did not lose before the RRT on the basis that she had not taken steps to reside in South Korea. Rather, the RRT decided that Australia owes no protection obligations to her because she has a legal right to live there. I confirmed with the applicant during argument that she wished this ground to be considered as if the particular related to the issue of the legal right of the applicant to live in South Korea. There is, nevertheless, no substance to the asserted breach of s.425.
First, there is no doubt that the applicant was invited to a hearing before the RRT. Secondly, the applicant was aware before the hearing of the potential issue of her right to live in South Korea and her migration agent made a written submission to the RRT about it. This is set out on pages 85 to 87 of the court book. Thirdly, it is clear from the record of the RRT decision that the issue was discussed with the applicant at the oral hearing conducted by the RRT. I refer in particular to page 104 of the court book. I find that the applicant was aware or was made aware by the RRT of the essential and significant reason why her protection visa application might fail.
The fourth ground in the amended application asserts jurisdictional error by making findings or advancing propositions without evidence. Again, the particulars make no sense because they relate to whether the applicant had taken all possible steps to enter and reside in South Korea. I have considered this ground as if the particulars related to the findings actually made by the RRT. The RRT findings were based upon the terms of ss.36(3) and 36(4) of the Migration Act and country information. Those sections have received very limited judicial consideration.
In NAGV & NAGW of 2002 v Minister for Immigration [2005] HCA 6 the High Court found it unnecessary to consider them. The provisions were considered by Emmett J in NBLB v Minister for Immigration [2005] FCA 1051. His Honour found no jurisdictional error in a factually similar decision of the RRT. I understand that the Full Federal Court is currently reserved on an appeal against His Honour's judgment but I further understand that issue on appeal is not one raised in the present application.
In my view, there was sufficient material before the RRT to support its finding. The country information pointed to the applicant being treated as a North Korean defector. The position is clouded somewhat by the country information reproduced on page 109 of the court book which relates to measures taken by the South Korean government to screen out ethnic Koreans seeking to migrate from China to South Korea. The RRT found that those measures would not prevent the applicant being accepted by South Korea as a North Korean defector. That finding was open to the RRT on the material before it. The no evidence ground fails.
The only other issue that occurs to me which was not raised by the applicant is whether the RRT was obliged by s.424(1) of the Migration Act to give written notice to the applicant of information concerning her right to enter and live in South Korea. Mr Beech-Jones submits that the decision that the applicant had a legal right to enter and live in South Korea was a conclusion rather than information and that the country information which led to that conclusion was information which did not require disclosure by reason of s.424A(3)(a) of the Migration Act.
While one would have expected that information of such fundamental importance would have been notified to the applicant in writing and that the applicant would have been given the opportunity to respond to it, I accept Mr Beech-Jones’ submission that the Migration Act did not legally oblige the RRT to take that course.
I find that there is no jurisdictional error in the decision of the RRT. The decision is therefore a privative clause decision and the application must be dismissed.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs in the sum of $6,675. The applicant did not wish to be heard on costs. I accept that costs of not less than $5,000 have been properly and reasonably incurred on behalf of the Minister when considered on a party and party basis. That is also the amount that will generally be awarded in migration proceedings after a final hearing after the Federal Magistrates Court Rules 2001 (Cth) are amended on 1 December 2005. 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 $5,000.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 1 December 2005
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