SZIYQ v Minister for Immigration

[2006] FMCA 1903

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIYQ v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1903

MIGRATION – Review of decision by Refugee Review Tribunal – unparticularised grounds – whether Refugee Review Tribunal’s decision affected by jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.65; 425; 425A; 426A; 474; pt.8 div.2
Migration Regulations 1994 (Cth), reg.4.35D
Federal Magistrates Court Rules 2001

NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 78 ALJR 992
SZATG v Minister for Immigration & Multicultural Affairs [2004] FCA 1595 Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155

Applicant: SZIYQ

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG1762 of 2006

Judgment of: Emmett FM

Hearing date: 5 December 2006

Date of last submission: 5 December 2006

Delivered at: Sydney

Delivered on: 5 December 2006

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the Respondent: Ms B. Rayment, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1762 of 2006

SZIYQ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 11 May 2006 and handed down on 1 June 2006. 

2. The applicant was born on 29 May 1964 and claims to be from Korea and of Korean ethnicity. 

3. The applicant arrived in Australia on 2 January 2006, having legally departed from Incheon Airport on a passport issued in his own name and a subclass 976 Electronic Travel Authority visa issued on 2 January 2006. 

4. On 7 February 2006, the applicant lodged an application for a protection (class XA) visa with the Department.  In a statement provided in support of his protection visa application, the applicant claimed that he feared persecution by the Korean government and police due to his involvement in union protests and lobbying for better work conditions in the factory where he worked.  The applicant claimed that, on 15 June 2005, he and other union members were arrested and beaten by police.  The applicant also claimed that, on

   
   

   5 September 2005, two strangers came to his home, tied him and his parents up, threatened the applicant with knives and searched his house. 

5. On 24 February 2006, a delegate of the first respondent (“the Delegate”) refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”). 

6. On 27 March 2006, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.  The applicant provided no further material in support his review application and failed to appear at a hearing before the Tribunal.  On 11 May 2006, the Tribunal affirmed the decision of the Delegate not to grant a protection visa. 

7. In deciding to proceed with its review without taking any further action to enable the applicant to appear before it, the Tribunal noted in its decision that it had written to the applicant on 4 April 2006, informing the applicant that it had considered all the material before it relating to his application, but was unable to make a favourable decision on that material alone.  The Tribunal noted that the letter went on to invite the applicant to attend a hearing and give oral evidence and present arguments on 5 May 2006. 

8. The Tribunal noted that the letter was sent to the applicant’s residential address, which was also the address that had been specified by the applicant for correspondence. The Tribunal noted that the applicant had not responded to the Tribunal’s invitation and had not contacted the Tribunal and that the letter had not been returned unclaimed. The Tribunal then purported to exercise the discretion provided under s.426A of the Act to proceed with its review without taking any further action to enable the applicant to appear before it.

9. The Tribunal then identified, with particularity, the claims made by the applicant in his written statement provided in support of his protection visa application.  The Tribunal then noted concerns that it had with the claims made by the applicant and matters it would have sought an opportunity to explore with the applicant at a hearing.  The Tribunal concluded that, on the limited evidence before it, it was not satisfied that the applicant was involved in a new independent union in his workplace or that he was dismissed from his employment because of his union activities. 

10. The Tribunal was not satisfied that the applicant had ever been viewed adversely by an employer or the police by reason of his political opinion or for any other Convention reason.  The Tribunal was not satisfied that the applicant had suffered harm, let alone serious harm, arising from any differences with any employer and was not satisfied that past events or any other factors contained in the material before the Tribunal gave rise to a well-founded fear of persecution within the meaning of the Convention in the reasonably foreseeable future. 

11. The Tribunal concluded that, having considered the evidence as a whole, it was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol and, accordingly, affirmed the decision under review. 

12. On 22 June 2006, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.  On 14 August 2006, the applicant filed an amended application in this Court identifying three grounds in the following terms:

    “1. Procedures that were required by the Migration Act and the Migration Regulations to be observed in connection with the making of the decision were not observed.

    2. The decision was an improper exercise of the power conferred by the Migration Act and Regulations.

    3. The decision involved an error of law. There was no evidence or other material to justify the making of the decision.”

13. The applicant was unrepresented before the Court today, although had the assistance of an interpreter.  The applicant confirmed that it was the amended application upon which he relied this morning.  The grounds in the amended application were interpreted for the applicant and he was invited to make submissions in support of the grounds.  The Court pointed out to the applicant that the grounds were not particularised and it was difficult in the circumstances for the Court to understand what was meant by each of the grounds.  The applicant was unable to make any meaningful submission other than to state that he could not go back to Korea and he had a lot of scars.  

14. I shall now deal with each of the applicant’s grounds of review as disclosed in the amended application. 

15. Ground 1 complains that the procedures required by the Migration Act 1958 (Cth) and the Migration Regulations 1994 were not observed. However, it is plain from the Tribunal’s decision that it had regard to the fact that it had written to the applicant, in accordance with its statutory duty pursuant to s.425 of the Act, to invite the applicant to appear before it. I note that the letter was sent to the applicant at the only address identified by him in his review application for correspondence. I also note the applicant did not have the assistance of a migration agent in the preparation of his application for review and the address for correspondence is the same as the applicant’s residential address. The letter complies with the requirements of s.425A of the Act and reg.4.35D of the Migration Regulations 1994 (Cth).

16. In the circumstances, pursuant to s.426A of the Act, the Tribunal was entitled to proceed with its review without taking any further action to enable the applicant to appear before it. The Tribunal decision makes plain the matters considered by the Tribunal in the exercise of that discretion. The Tribunal particularly noted that the applicant had not responded to the Tribunal’s invitation and had not contacted the Tribunal and that the Tribunal’s letter had been returned unclaimed. In the circumstances, to the extent that Ground 1 of the amended application is a complaint about the procedures followed by the Tribunal, that complaint is not made out.

17. Grounds 2 and 3 of the amended application are meaningless in the absence of particulars.  As is apparent from the Tribunal decision, the Tribunal was aware of its statutory obligations in the conduct of its review.  It had regard to the material before it, provided by the applicant, being the applicant’s statement in support of his protection visa application, and identified the deficiencies in that material that prevented it from being satisfied about the applicant’s claims. 

18. The first respondent correctly submitted that it was open to the Tribunal simply not to accept the applicant’s claims and that the Tribunal is not obliged to accept at face value the applicant’s claims.  The first respondent referred the Court to NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 at [5] where the Full Court of the Federal Court stated the following:

    “In assessing the adequacy of these reasons, it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China. Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.” 

19. The first respondent also correctly submitted that the Tribunal is not obliged to search out and obtain information to support the applicant’s case, nor is it under a duty to make the applicant’s case for him (Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 78 ALJR 992 at [43]; SZATG v Minister for Immigration & Multicultural Affairs [2004] FCA 1595 at [22]-[26] per Hely J; Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169-170).

20. It is for an applicant to satisfy the Tribunal, that he meets the applicable criteria for being a refugee. Section 65 of the Act mandates that if the decision-maker is not satisfied that the applicant meets the applicable criteria, then it must refuse a protection visa. The reason for the Tribunal’s lack of satisfaction was due to inadequate material and the fact that it did not have an opportunity to explore concerns that it had with the applicant at a hearing arising out of his claims, particularly where the claims were not supported by any independent evidence. The Tribunal’s conclusions were open to it on the material before it and for which it provided reasons.

21. The decision is not affected by jurisdictional error and is a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere and the proceeding before this Court is dismissed.

22. The first respondent seeks costs fixed in an amount of $3200.  I note that the amount sought is less than is provided in the applicable schedule of costs attached to the Federal Magistrates Court Rules 2001. 

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:  S. Tsang

Date:  20 December 2006