SZIKI v Minister for Immigration
[2006] FMCA 1240
•14 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIKI & ORS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1240 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – applicants are citizens of South Korea – fear of persecution for reasons of political opinion – credibility – no jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.417, 424A |
| First Applicant: | SZIKI |
| Second Applicant: | SZIKJ |
| Third Applicant: | SZIKK |
| Fourth Applicant: | SZIKL |
| Fifth Applicant: | SZIKM |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 595 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 14 August 2006 |
| Date of Last Submission: | 14 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 14 August 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondents: | Mr Smith |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
I dispense with the requirement for a litigation guardian for the Third, Fourth and Fifth Applicants.
The application is dismissed.
The First and Second Applicants are to pay the First Respondent’s costs fixed in the sum of $4,800.00 and I will allow (6) six months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 595 of 2006
| SZIKI |
First Applicant
| SZIKJ |
Second Applicant
| SZIKK |
Third Applicant
| SZIKL |
Fourth Applicant
| SZIKM |
Fifth Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
This is an application for review of a decision of the Refugee Review Tribunal. The decision was signed on 21st December 2005 and handed down on 17th January 2006. The Tribunal affirmed the decision of a delegate of the minister not to grant protection visa's to the applicants.
The applicants now seek orders by way of certiorari and mandamus quashing the decision of the Refugee Review Tribunal and remitting the application to the Tribunal for determination according to law.
The applicants are citizens of the Republic of Korea. They are husband, wife and three children. The children are all under the age of 18 years. As the children's claim depends solely on that of their father I am of the view that there is no need for them to take any separate part in the proceedings and it is unnecessary to appoint a litigation guardian on their behalf. Accordingly I propose to dispense with the requirement of litigation guardian in respect of the third, fourth and fifth applicants.
The background of this matter is that the first applicant, the father, arrived in Australia on 25th October 2002. The other applicant, being his wife and three children at that stage, arrived in Australia on
20th January 2003. Since then a further child has been born in Australia who is not a party to these proceedings.
The applicants lodged an application for a protection (class XA) visa on 20th June 2003. That visa, or, more correctly, those visas in respect of the applicants, were refused on 24th June. The applicants then sought a review of the delegate's decision from the Refugee Review Tribunal. An application on behalf of the five applicants to whom I have previously referred was received at the Sydney registry of the Migration Review Tribunal on 11th July 2005.
The Tribunal wrote to the applicants initially on 12th July acknowledging receipt of the application and again on 19th August raising some queries about whether or not the application for review was late. That detail was resolved in the applicant's favour and the Tribunal accepted, on 16th September 2005, that the application for review was a reviewable decision by the Refugee Review Tribunal.
The Tribunal wrote to the first applicant on behalf of all of the applicants, inviting them to attend a hearing of the Tribunal on Wednesday 26th October 2005. The applicants were advised that they could give oral evidence and present arguments in support of their claims and could forward further documents to the Tribunal.
The applicant did indeed take advantage of that offer and submitted a number of documents to the Tribunal in support of the applicants' claim. That included letters from the priest at a church, indicating that the family were currently church attendees and a letter from the principal of the school of which one of the children attended and a variety of other documents by way of references setting out the opinions of the writers that all five applicants, both severally and jointly, were people of good character.
The first applicant himself wrote to the Tribunal on 15th October making a written submission and indicating that he intended to attend the Tribunal hearing on 26th October accompanied by his son. The first applicant did attend as did his son. The other three applicants did not attend. They provided further documents on the hearing day in support of their claim. They provided a copy of the passports of each of the adult applicants and certainly of two of the children.
At the hearing itself on 26th October, the first applicant, the father, gave oral evidence to the Tribunal. The Tribunal member asked the first applicant a number of questions about his case. He told the Tribunal that he had a fear of persecution because of his activities as a union leader in the Republic of Korea and that he had come under adverse notice by the government as a result. The Tribunal asked the first applicant questions about matters that were of some concern, including the fact that the first applicant appeared to have changed the spelling of his name. He advised why it was that he had changed his name on that documentation.
The Tribunal did not make its decision on the spot. What the Tribunal did do was write to the first applicant on 7th November 2005, quoting from some material and asking for comments. The letter said:
The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason for deciding that you are not entitled to a protection visa.
The letter then set out a variety of pieces of evidence about the first applicant's arrival in Australia and departure from Australia and information about what the applicant told the department was his history. The Tribunal set out in two places in the letter why it considered that information to be relevant and what inferences, at least without explanation, the Tribunal could draw from that evidence.
The letter itself is set out on pages 116 through to 119 of the court book. The first applicant replied to that letter on 28th November 2005 and a copy of that reply is set out on pages 120 and 121 of the court book.
The Tribunal in its decision set out the claims and evidence of the first applicant in some detail. That material appears at pages 132 through to 135 of the court book. The Tribunal also quoted from some background independent information relating to trade union leaders in South Korea. That information included material from the Department of Foreign Affairs and Trade and from the United States State Department. The material appears at pages 136 to 138 of the court book.
The Tribunal set out its findings and reasons in four pages of the decision. That material reproduced at pages 138 through to 141 of the court book. The Tribunal referred to a chronology of the applicant's claims and at page 139 said:
The applicant claims that he will be harmed in Korea for his political opinion and his membership of a particular social group, union supporters or union members. I have rejected the applicant's claims. I am satisfied the applicant is not a witness of truth.
The Tribunal then sets out - and it appears on page 139 and 140 - various reasons why the Tribunal was not satisfied that the first applicant's evidence established that he was a truthful witness.
The Tribunal then, at page 140, set out the situation as the Tribunal saw it if the applicant and his family were to return to South Korea now or in the foreseeable future. The Tribunal found that there was no independent evidence to suggest that persons who were members of a union until 1991 would be treated unfairly in South Korea.
The Tribunal also noted some humanitarian issues in the second paragraph on the final page of the Tribunal decision. That material is reproduced at page 141. I will quote from that paragraph in full:
The applicant claims that he has three children who were born in Australia and his son has told the Tribunal that he does not wish to return to South Korea. He has been educated in Australia to date and has no contact or friends in South Korea if required to return. The applicant claims that his children are well adapted in Australia and there is unfairness in South Korea. I do not have a discretion in humanitarian issues.
The Tribunal was not satisfied that the harms complained of by the first applicant give rise to a real chance of persecution at the time of the hearing or in the reasonably foreseeable future and having considered the evidence as a whole was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugee's Convention as amended by the refugee protocol.
The Tribunal found that the first applicant did not satisfy the criterion set out in sub-s.36(2) of the Migration Act for a protection visa.
The Tribunal also noted that no specific convention claims were made by or on behalf of the second applicant, who is the wife, or the children. The fate of their application depended on the outcome of the first applicant's application. The Tribunal affirmed the decision not to grant protection visas to the applicants.
The applicant has sought judicial review of that decision by means of an application filed at this Court on 23rd February 2006. The applicant set out three grounds for the orders which they seek, which I will quote in full:
i)I was denied justice and careful consideration on my claim to be a refugee.
ii)Refugee Review Tribunal did not fully review the evidence I have provided at the interview and at the lodgement.
iii)My argument at RRT interview was true and genuine but it was not accepted.
The first applicant has attended Court today and in answers to questions from the bench in order to clarify questions about grounds (i) and (ii) reiterated his factual claims. He confirmed that he attended the hearing and gave evidence and that he was given time to explain his answers but he did not receive a favourable result. He was not satisfied with the opinion formed by the Tribunal about his credibility or about the likelihood of his suffering any persecution if he were to return to South Korea.
He claimed that the Tribunal did not fully review the evidence but confirmed that as far as he knew the Tribunal had received all of his documents but he did not see whether the Tribunal member did or did not look through all those documents. He told the Court that if he and his family were required to go back to South Korea it would create difficulties for them all and pointed out that he had five children, of whom three were born in Australia. He said that he had been nervous at the Tribunal hearing and as a result he was not able to answer the Tribunal's questions properly. He did however concede that he had not told the Tribunal of his nervousness.
I have read the written submissions filed on behalf of the first respondent minister. In respect of the first ground; namely denial of justice and careful consideration of his claim, it is submitted that the applicants were given a hearing and were given an opportunity to address in writing the Tribunal's concerns in relation to their claims. The Tribunal had written to them under the provisions of s.424A of the Migration Act and set out why it had concerns about the credibility of the applicants' case. It is submitted, and I believe correctly, that the procedure adopted by the Tribunal was fair in all of the circumstances. As to the ground the Tribunal did not fully review the applicants' evidence, it is submitted - again I believe correctly - that the Tribunal did give reasons as to why it rejected the applicants' claims. It rejected most of the applicants' claims but has provided reasons for doing so.'
The final ground; which was that the applicants' arguments at the Tribunal hearing were true and genuine but were not accepted, goes only to the merits of the Tribunal decision and does not show any jurisdictional error. The third ground in fact is a challenge to the factual finding. It is of course quite clear that on a judicial review the Court does not conduct a merits review. In other words; it does not challenge the factual findings made by the Tribunal. Provided that there is evidence upon which a Tribunal can make findings of fact, the Court will not interfere and will not substitute its own view of the facts from those found by the Tribunal member.
The Tribunal's decision was clearly based on findings of fact and in particular findings as to the first applicant's credit. Findings as to credit are themselves factual findings and the Tribunal has set out in some detail why it was not satisfied of the credibility of the first applicant's evidence. There is indeed no suggestion that the procedure conducted by the Tribunal was unfair. Indeed, the reverse seems to be true. The applicant attended a Tribunal hearing and gave oral evidence. The applicant was able to submit documentary evidence which it appears the Tribunal considered. The Tribunal wrote to the applicant after the hearing, specifically referring to its concerns and setting out why it was that unless those concerns were met, that the material referred to would form the reason or part of the reason for affirming the delegate's decision. In my view; in writing the letter that it did and setting out the concerns that it had, the Tribunal met its obligations under s.424A of the Migration Act. The applicant replied to that letter and he is, on the face of the decision, the Tribunal took that into account.
In the end this is largely a question of credibility. The Tribunal did not accept the credibility of the first applicant's evidence on the day of the hearing. In my view it was open to the Tribunal to make that finding and as such there is no jurisdictional error. The Tribunal did consider humanitarian aspects relating to the applicant's children but as the Tribunal member pointed out, however, the Tribunal does not have any discretion to make a decision on humanitarian grounds. Sadly for the applicants nor does the Court. As far as humanitarian concerns are concerned, applicants may ask the Minister to exercise her discretion under s.417 of the Migration Act. But that discretion is purely a matter for the Minister and neither the Court, nor for that matter the Refugee Review Tribunal, has any power to persuade the Minister to do so. It is a discretion that resides entirely with the Minister.
In my view no jurisdictional error has been made out. I am mindful of the fact that the applicants are not legally represented. I have read through the Tribunal decision myself independently of the applicants' claims and I am satisfied that I cannot discern any arguable case for a jurisdictional error on any ground not referred to by the applicant. There is, in my view, no jurisdictional error and it follows that the Tribunal's decision is a privative clause decision as defined in
sub-s.474(2) of the Migration Act. As the decision is a privative clause decision, orders in the nature of certiorari or mandamus are not available. The application therefore must be dismissed.
I note that an order for costs is sought against the first and second applicants; the mother and father only as the third, fourth and fifth applicants are minors. The amount sought is $4,800.00 inclusive of barrister's fees. It is a normal procedure that the minister seeks an order for costs against an unsuccessful applicant. In my view there is no reason why I should not make an order for costs against the first and second applicants only. The amount of $4,800.00 appears to me to be an appropriate figure within the range envisaged by the Federal Magistrates Court scale.
The first and second applicants are to pay the first respondent's costs fixed in the sum of $4,800.00. I note that there are three children who are applicants who are under the age of 18 years. In the circumstances, I will allow six months to pay costs.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 23 August 2006
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