SZIJJ v Minister for Immigration
[2006] FMCA 1816
•23 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIJJ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1816 |
| MIGRATION – Review of a Refugee Review Tribunal decision – no genuine fear of persecution – application dismissed. |
| Migration Act 1958 (Cth), s.474 |
| WAGJ of 2002 v Minister (2002) FCAFC 553 |
| Applicant: | SZIJJ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 513 of 2006 |
| Judgment of: | Turner FM |
| Hearing date: | 23 November 2006 |
| Date of last submission: | 23 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 23 November 2006 |
REPRESENTATION
| The applicant appeared in person |
| Counsel for the Respondent: | Ms V. McWilliam |
| Solicitors for the Respondent: | Ms G. Broderick of Clayton Utz |
THE COURT ORDERS THAT:
The application be dismissed.
The applicant pay the first respondent's costs of $4,500.
The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG513 of 2006
| SZIJJ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 17 February 2006 seeking to review the decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed a decision of the delegate of the Immigration & Multicultural Affairs not to grant the applicant a protection visa.
The applicant was born on 5 May 1956 and claims to be from the Philippines ("the applicant").
The applicant arrived in Australia on 12 June 2005, on a visitor's visa which had been issued in Manilla in the Philippines on 19 May 2005.
The applicant lodged an application for a protection visa with the Department of Immigration & Multicultural Affairs on 26 July 2005. In this application she claimed to have been persecuted as a result of her involvement with the environmental group, "Save the Life Movement".
The application was refused by a delegate of the first respondent on
13 October 2005.
On 10 November 2005 the applicant filed an application for a review of the decision of the minister's delegate with the Refugee Review Tribunal (“the Tribunal”). The applicant gave oral evidence before the Tribunal on 22 December 2005, at which time she maintained the claims made in her original protection visa application.
On 17 January 2006 the Tribunal handed down its decision, dated
23 December 2005, affirming the decision of the minister's delegate refusing to grant the applicant a protection visa. In considering the applicant's claim the tribunal found:
i)The applicant is a member of the “Save the Life Movement” and that she has been involved in disseminating information about illegal logging and quarrying. While having doubts about some of the claims, the Tribunal accepted that during 2005 the applicant received a number of telephone calls from various anonymous people who suggested to her that she should cease her activities with the movement. Having observed the applicant at the hearing and on the basis of the evidence as a whole, the Tribunal did not accept that the applicant took the calls seriously. (Court Book “CB” page 66).
ii)The Tribunal accepts as being plausible that a member of the movement has been gunned down, but on the basis of the available information and as put to the applicant during the hearing, the Tribunal does not accept that the murder had anything to do with the activities of the movement. (CB page 66).
iii)The Tribunal did not accept that the applicant had a genuine fear of persecution which was based on her involvement with the movement. Although the Tribunal is not required to consider whether there is any objective basis for any fear she claims to have, in consideration of the evidence as a whole the Tribunal is satisfied that there is no objective basis for any fear of persecution that the applicant claims to have. (CB page 66).
iv)The applicant agreed that the authorities of the Philippines support the environment preservation activities. Furthermore, on her own evidence, the applicant believes that the authorities have and would offer her protection if the need arises. (CB 66).
v)Looking at the evidence as a whole, the Tribunal is not satisfied that there is a real chance of convention related harm occurring to the applicant in the reasonably foreseeable future if she were to return to the Philippines. (CB 67).
The applicant then filed the application in this Court seeking judicial review of the tribunal's decision pursuant to the Migration Act 1958.
The application
In her application the applicant sets out three grounds as follows:
i)That a breach of the rules of natural justice and procedural fairness occurred in connection with the making of the decision. The Tribunal failed to complete its jurisdiction as it failed to investigate the motives of my persecutors and their reasons for wanting to persecute me.
ii)The findings of the Tribunal does (sic) not suggest that the government of the Philippines would be able to offer me effective protection where I claimed the government's protection for my persecutors. The Tribunal failed to make relevant findings.
iii)The Tribunal also made jurisdictional error by failing to find that the continous (sic) and persistent threats made to my life is denied to my liberty and human rights and may constitute persecution within the Refugee Convention.
Findings
Ground 1:
the Tribunal has no obligation to make out a case for an applicant: WAGJ of 2002 v Minister (2002) FCAFC 553 at 560.
There is no procedural unfairness demonstrated in relation to this ground.
The Court rejects that ground.
Ground 2:
the Tribunal found that the authorities would offer the applicant protection if she needed it. The applicant agreed with that proposition when it was put to her. The ground is not made out.
The Court rejects it.
Ground 3: the Tribunal found that as a matter of fact, the applicant did not have a genuine fear of persecution based on her involvement with the “Save the Life Movement”. This Court will not review that finding of fact. It was properly open to the Tribunal.
The Court rejects this ground.
I find that the Tribunal's decision is a privative clause decision and has not been affected by 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 is dismissed.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Dian Neligan
Date: 23 November 2003
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