SZHCU v Minister for Immigration
[2006] FMCA 1146
•31 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHCU v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1146 |
| MIGRATION – RRT decision – deaf mute Mongolian applicant – claimed discrimination because of disability – no jurisdictional error found. |
| Migration Act 1958 (Cth), ss.424A, 474, 483A Migration Litigation Reform Act 2005 (Cth) Sch.1 cl.41 |
| SZEFM v Minister for Immigration [2006] FCA 78 SZFIH v Minister for Immigration [2005] FMCA 1847, 196 FLR 126 |
| Applicant: | SZHCU |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2584 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 31 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 31 July 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr S Lloyd |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed
The applicant must pay the first respondent’s costs in the sum of $5,000.
These orders shall not take effect until 11 September 2006.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2584 of 2005
| SZHCU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 14 September 2005 under s.483A of the Migration Act 1958 (Cth), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal dated 27 July 2005 and handed down on 18 August 2005. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
Section 483A was repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of this proceeding (see Sch.1 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8).
The Court's powers under section 483A are limited by the provisions of Part 8 of the Migration Act, which have the effect that I cannot set aside the Tribunal's decision and send the matter back to the Tribunal unless I am satisfied that it was affected by jurisdictional error. I do not have power myself to decide whether the applicant's claims should be believed, nor whether he qualifies for a protection visa.
The present applicant arrived in Australia in January 2005. He has a deaf/mute disability, and came to Australia to participate in the 20th Deaf Olympic Games in Melbourne. On 2 February 2005, he applied for a protection visa assisted by a migration agent, Mr Mollah. Mr Mollah completed the form explaining the applicant's reasons for seeking protection in Australia so that he did not have to return to Mongolia as follows:
40. Why did you leave that country?
I was discriminated because of my dampness [dumbness]. I have all quality but people of Mongolia does not give my job only because of my dampness [dumbness]. I cannot survive my life in Mongolia. I will provide later details.
41. What do you fear may happen to you if you go back to that country?
If I back to Mongolia, cannot survive my life. There is no job for me. Actually I am abused. Discriminate. I will provide later.
42. Who do you think may harm/mistreat you if you go back?
1. Authority
2. General People (extremists)
43. Why do you think this will happen to you if you go back?
I cannot survive my life. Without food I have to die. I will provide later details.
44. Do you think the authorities of that country can and will protect you if you go back? If not, why not?
No. There is no help fund or security for damp [dumb] people. Even they do not encourage people to help damp [dumb] people. I will provide later.
No further details were ever provided to the Department, nor to the Tribunal until the applicant attended a hearing.
A delegate refused the visa on 10 February 2005, and Mr Mollah lodged an application for review by the Refugee Review Tribunal on 10 March 2005.
The Tribunal attempted to obtain more details by sending a request for additional information under s.424(2) to Mr Mollah. Neither the applicant nor his agent responded. However, the Tribunal made a further attempt to obtain information.
By letter dated 6 June 2005 sent to Mr Mollah, and subsequently to the applicant's residential address, the applicant was invited to a hearing on 4 July 2005 at 9.30 am. The Tribunal, by letters dated 24 June 2005, informed Mr Mollah and the applicant that the time of the hearing had been moved by one hour to 10.30 am on 4 July.
The applicant attended the hearing with Mr Mollah. There is no evidence that they did not consent to or acquiesce in the rescheduling, and I infer that they probably did. For the reasons I have given in SZFIH v Minister for Immigration [2005] FMCA 1847, I am not satisfied that the rescheduling without full notice under s.425A(3) gives rise to jurisdictional error (see also the judgment of Bennett J in SZEFM v Minister for Immigration [2006] FCA 78).
The Tribunal said in its statement of reasons that it communicated with the applicant at the hearing using a Mongolian interpreter communicating with the applicant through written statements in Mongolian script. The same method of communication has been followed by me today and on previous listings in this Court. It was not possible for the Court to obtain an interpreter in the language for the deaf with which the applicant is most familiar.
In its statement of reasons, the Tribunal said that it obtained the following information as to the applicant's concerns about his life in Mongolia:
The Tribunal asked the applicant about harm suffered by him in the past in Mongolia. He described an incident in 1997 when some drunks on the bus assaulted him. He did not know these people. He reported the incident to the police later and by that time he said that there was little they could do to identify the offenders as some time had already passed. He told the Tribunal that he believes than these people picked on him because he is a deaf/mute. When questioned on this the applicant said that he could hear their words. The Tribunal asked the applicant what he fears in Mongolia. He spoke about the light in the streets being poor and the poor security situation. He fears going out in the dark streets. He advises that it is sometimes difficult to go out into the street as people treat him in a rude manner and they will oppress him. The Tribunal asked whether there is any other harm he fears. He said that there is nothing further.
In relation to support services for people with disability in Mongolia, the applicant told the Tribunal that he had been assisted by the Government to obtain a bachelor's degree in physical education which qualified him to teach and coach soccer. Between 1999 and 2000 he had been employed in a business employing deaf people, but it had gone out of business. The applicant had then been entitled to a disability allowance, although he thought it was insufficient.
The applicant was not able to identify any particular Convention reason causing him to fear returning to Mongolia.
The Tribunal informed itself with country information, which included the following passage from the 2004 Country Report On Human Rights Practices concerning the situation of persons with disabilities in Mongolia:
Persons with disabilities
The labor law prohibits discrimination in employment and against persons with disabilities, and it required the Government to provide benefits according to the nature and severity of the disability, which the Government did. The Law on Social Protection of the Disabled charge provincial governors and the Ulaanbaatar governor with the responsibility to work with provincial councils and the Ulaanbaatar city council to develop and implement measures to protect persons with disabilities. However NGOs claimed that the Government did little to implement such measures, and in practice, most persons with disabilities could not find jobs. The law requires companies employing more than 50 persons to hire at least 3 persons with disabilities and the Government provided tax benefits to enterprises that hired persons with disabilities, whom some firms hired exclusively. Person injured in industrial accidents have the right to reemployment when ready to resume work, and the Government offered free retraining at a central technical school. There were several specialized schools for youths with disabilities, but these students also were free to attend regular schools. There is no law mandating access to buildings for persons with disabilities, which made it difficult for these person to participate fully in public life. Persons with disabilities have demonstrated for higher government subsidies. Government pensions for persons with disabilities were approximately $40 (40,000 tugrik) per month. Approximately 30 NGO’s participated in activities assisting the approximately 40,000 persons with disabilities in the country.
Under the heading "Findings and Reasons", the Tribunal accepted that the applicant's claim of discrimination due to his condition as a deaf mute could be assessed on the basis that he was a member of a particular, cognisable social group in Mongolia. However, the Tribunal did not accept that the applicant would face persecution in Mongolia for reason of his membership of such a group.
The Tribunal said:
On his own evidence the applicant has not been denied access to basic services in a manner that threatens his capacity to subsist, since he has received an education up to and including tertiary level. He has freedom of movement and the means to travel abroad; he is able to live independently in Mongolia and indeed has been the recipient of extensive government support. The costs of relatively recent tertiary study were borne by the government. In the past he has managed to secure employment albeit in a special placement. Although the applicant has faced difficulty finding a position in his preferred profession as a soccer coach there is no evidence before the Tribunal that work will be denied him because of his impairment.
On his own evidence the applicant has not been denied a capacity to earn a livelihood of any kind in such a manner as would threaten his capacity to subsist, or faced significant economic hardship. He was employed in a special placement between 1989 and 2000 and returned to tertiary study in 2000. This study was supported by the government and the applicant also received an allowance during the period of this study. Independent evidence supports the applicant’s claim that it is very difficult for person with disabilities to find work in Mongolia. The applicant and his wife receive disability allowances and whilst the Tribunal acknowledges that life is difficult for them it finds no evidence that the applicant has been denied access to basics services or denied the capacity to earn a livelihood of any kind. Indeed the applicant has been the recipient of significant government and community support in his study and in his life as a sportsman. There is no credible reason to assume that basic services would be denied the applicant in the future or that in the future he would be denied a capacity to earn a livelihood.
The Tribunal thought that the applicant's account of being assaulted once by a group of drunks showed him to have been “the victim of an unfortunate but random assault”. It found that “there is no evidence that the police failed to protect the applicant or that they failed to respond to his request for assistance”.
The Tribunal considered the general situation of the applicant in society, and accepted that he “is the subject of societal discrimination because of his condition as a deaf/mute”. However, it was not satisfied that he had suffered physical harassment or ill treatment of a significant level as to amount to persecution.
It also said that it was satisfied that:
The applicant can expect to receive the same degree of protection which is available to all citizens in Mongolia. There is no evidence before the Tribunal that such assistance has ever been denied the applicant in the past.
The Tribunal concluded:
Apart from the above findings of lack of persecution based on the applicant’s evidence, the Tribunal finds that the country information does not support claims that the applicant faces persecution in Mongolia because of his disability … In general, the Tribunal finds that the country information shows that the Mongolian authorities are willing and able to protect the rights of the disabled.
In summary, the Tribunal is not satisfied that the applicant has a well‑founded fear of persecution for a Convention reason in Mongolia for reason of his disability as a deaf mute or for any other Convention reason.
I have considered the reasoning and procedures followed by the Tribunal, and am unable to identify any jurisdictional error affecting its decision.
The application filed in this Court followed a precedent commonly used by former clients of Mr Mollah. It says:
The grounds of the application are:
The Tribunal made his decision in bad faith. The Tribunal deprived me of the natural justice. The Tribunal denied the evidentiary proof of my claim. The Tribunal’s decision did not reflect the material facts of my claim. The Tribunal has given a decision, which was preset in the back of it’s mind. The Tribunal mixed up many facts with this decision which affected the decision. The Tribunal concentrated in particular fact, while ignored many other facts in this condition. The Tribunal make up his mind without any inquiry regarding my claim and he did not believe my genuine convention based refugee claim. My application is late.
I refer to High Court case 157/2002 v MIMIA. I will provide more details of grounds later.
I can find no substance in any of these general allegations. I consider the Tribunal carefully considered the applicant's claims, and assessed them against the Convention definition of "refugee" in accordance with law.
The applicant's application has been listed twice before me at directions hearings. He has been given two opportunities to file an amended application and written submissions. He has been referred for legal advice under the free scheme, and has been assisted with a fully qualified Mongolian interpreter who has been able to communicate the Court’s directions to him in writing. I consider he has had ample opportunity to put forward arguments to show jurisdictional error by the Tribunal. However, he has filed no documents beyond his initial application, and had no submissions prepared to make to me today.
His statements to me essentially were that he wanted to live and work in Australia. However, that contention does not provide me with a ground for making an order in his favour.
I consider that there is no jurisdictional error affecting the Tribunal's decision. It is therefore a privative clause decision and I must dismiss the application.
My ex tempore judgment has not been translated to the applicant verbatim, and I shall stay my order for a short period which will allow him an opportunity to obtain a translation and further advice on it before it takes effect.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 17 August 2006
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