SZKEZ & Anor v Minister for Immigration & Anor

Case •

[2007] FMCA 1130

•

9 July 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKEZ & ANOR v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1130
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicants are citizen of the People's Republic of China claiming fear of persecution because of unemployment – where Tribunal found no convention nexus – the Court cannot review the fairness of the Tribunal decision – no jurisdictional error.

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), s.422, 424, 474
SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205 followed.
Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61
SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26
Attorney-General (NSW) v Quin (1990) 170 CLR 1 followed.
SZBEL v Minister for Immigration & Multicultural Affairs (2006) 231 ALR 592
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
First Applicant: SZKEZ
Second Applicant: SZKFA
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG 484 of 2007
Judgment of: Scarlett FM
Hearing date: 9 July 2007
Date of last submission: 9 July 2007
Delivered at: Sydney
Delivered on: 9 July 2007

REPRESENTATION

Applicants: First Applicant in Person
Counsel for the Respondent: Mr Mitchell
Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

  1. The Application is dismissed.

  2. The Applicants are to pay the First Respondent's costs fixed in the sum of $4,100.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 484 of 2007

SZKEZ

First Applicant

SZKFA

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application for review of a decision of the Refugee Review Tribunal. The decision which was signed on 28th November 2006 and handed down on 9th January 2007 affirmed the decision of a Delegate of the Minister not to grant the Applicants Protection (Class XA) Visas. 

  2. The Applicants filed an application and an affidavit at this Court on 14th February 2007 seeking judicial review of that decision in particular they seek an order in the nature of certiorari setting aside the decision of the Refugee Review Tribunal and an order in the nature of mandamus remitting the application to the Refugee Review Tribunal for determination according to law. 

  3. I note that the application actually seeks that the application for a visa be remitted to the Tribunal to “be heard and determined differently and according to law”. The Court has no power to direct the Refugee Review Tribunal as to what decision it should reach. That matter is a decision for the Refugee Review Tribunal taken after considering the evidence and applying the appropriate provisions of the Migration Act 1958. In any event the Court has no role to second guess the Tribunal on matters of fact or judgment. As I explained to the First Applicant this afternoon the Federal Magistrates Court can only correct the Tribunal if jurisdictional error is revealed. (See SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205 at [3]).

Background

  1. The Applicants, who are husband and wife, are citizens of the People's Republic of China. They arrived in Australia on 23rd April 2006 and applied for Protection (Class XA) visas on 5th June 2006. On
    2 September 2006 a Delegate of the Minister refused their applications for visas. The Applicants then on 9th October 2006 applied to the Refugee Review Tribunal for a review of the Delegate's decision. 

  2. The application for review was not accompanied by any additional material from the Applicants. The Tribunal wrote to the Applicants inviting them to attend a hearing on 22nd November 2006. The Applicants replied indicating that the First Applicant at least did wish to attend and would require the assistance of an interpreter in the Fujian language. She attended the hearing at the Tribunal bringing with her a copy of her passport. 

  3. The First Applicant gave evidence to the Tribunal and made it clear that the Applicants resided in Hong Kong. The Tribunal asked her about her claim that the Hong Kong government has a bad human rights record; that there were limited opportunities for both skilled workers and non-skilled workers and that the government did nothing to stop bureaucrats from colluding with each other or developers who made property prices increase.

  4. The Applicant stated at the Tribunal hearing that neither the Second Applicant nor herself belonged to any political party or trade union nor do they profess to any religion.  The First Applicant said that she and he Second Applicant had suffered economic hardship because there were no jobs in Hong Kong. She said that in 1997 when Hong Kong returned to the People's Republic of China all the factories moved to the mainland and there was no work for people in Hong Kong and they did not have enough income to raise a family.

  5. She also stated that the chances of employment were limited due to difficulties with her age and application. She said that these were problems both for the Second Applicant and for herself as it was harder to get a job without education and when one is older.  A copy of the Tribunal decision record is set out on pages 72 through to 79 of the Court Book.  The findings and reasons are set out on pages 77 to 79. 

The Tribunal’s findings and reasons

  1. The Tribunal considered the definition of serious hard in sub-section 91R(2) of the Migration Act and found that the First Applicant has not suffered persecution involving serious harm and if she were to return to the People's Republic of China she would not suffer serious harm in the future. The Tribunal referred to the Applicant's claim of suffering economic harm, having become unemployed and stated:

    Further, becoming unemployed due to a factory closing and not being able to find employment is not a denial of capacity to earn a livelihood.  The first applicant still has the capacity to earn a livelihood even if for a period of time she cannot find any employer.  Further, the first applicant becoming unemployed due to a factory closing is not persecution involving systematic and discriminatory conduct and the Tribunal finds accordingly.

  2. The Tribunal noted the Applicant's general claims about the Hong Kong government's poor human rights record and the deficiencies generally of the Hong Kong government.  However, the Tribunal went on to find:

    These claims are general and there is insufficient evidence as to the harm the first applicant may face.  They are, in part, to support the first applicant's more specific claim dealt with above.  These circumstances do not amount to persecution and the Tribunal finds accordingly.[1]

    [1] See Court Book at page 77.

  3. The Tribunal found that there was no plausible evidence that the First Applicant had suffered persecution in the People's Republic of China because of her political opinion, her imputed political opinion; her membership of a particular social group; her religion or for any other Convention reason.  The Tribunal also found that the evidence did not establish that there was a real chance that the First Applicant would suffer persecution for a Convention reason at the time of the hearing or in the reasonable foreseeable future if she were to return to the People's Republic of China.

  4. Accordingly the Tribunal was not satisfied the First Applicant had a well founded fear of persecution for a Convention reason if she were to return to China.  The Tribunal noted that no specific Convention claims had been made by or on behalf of the Second Applicant whose application depends on the First Applicant's application. 

  5. The Tribunal was not satisfied the first named Applicant satisfied the criterion set out in sub-s.36(2) for a protection visa and was not satisfied that the Second Applicant could satisfy the alternative criterion set out in sub-s.36(2)(b). The Tribunal affirmed the Delegate's decision not to grant Protection (Class XA) Visas. 

The Application for judicial review

  1. The Applicants in seeking judicial review set out two grounds. First, the Refugee Review Tribunal committed jurisdictional errors of law in that it failed to comply with the Migration Act 1958. Second, the Refugee Review Tribunal denied the Applicants fairness by affirming the decision not to grant the Applicants protection visas by the Department of Immigration. No particulars are provided of either claim and the Applicants have not filed any written outline of submissions.

  2. The First Applicant attended Court; the Second Applicant did not. The First Applicant indicated that she would represent the Second Applicant's interests. I am satisfied that the Second Applicant is indeed an applicant and I note that there are two separate signatures on the application. I asked the Applicant to provide details or further particulars of her two claims as to failure by the Tribunal to comply with the Migration Act or the denial of fairness, whether it be procedural fairness or any other fairness by the Tribunal.

  3. The Applicant provided no further particulars but asked the Court to delay the time as long as possible because she needs the time to work in Australia.  I indicate that the Court does not have a jurisdiction to deal with that.  I have read the written outline of submissions prepared by Mr Mitchell of counsel on behalf of the First Respondent Minister.   The submissions which he made, in my view, are a correct outline of the law as it relates to the Applicant's claims.  I adopt the submissions set out in paras.4.3 and 4.4 of the written outline of submissions which I shall read on to the record:

    In respect of ground 1, the Tribunal did not breach any obligation in the procedural code constituted by Division 4 of Part 4 of the Migration Act 1958. (See Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 and SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62).  It made its decision based on an assessment of the material before it as not evidencing past Convention related persecution or a reasonably likelihood of prospective Convention related harm.  These conclusions were open on the evidence and constituted an appraisal of information given by the Applicants for the purpose of their application for review. (See Court Book 75 and 76). The appraisal of that information was not itself information and therefore not subject to s.424A(1) of the Migration Act. (See SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18]. 

    In respect to ground 2, the Court cannot review the fairness of the Tribunal's decision. (See Attorney General (NSW) v Quin (1990) 170 CLR 1at 35-6). In respect of any procedural fairness claim, the natural justice hearing rule did not apply to the Applicant's application for review by reason of s.422B of the Migration Act 1958. Further there is no evidence as to what occurred at the Tribunal hearing, other than the reasons for decision.  Therefore there is no evidence from which it may be inferred that the determinative issues were not put to the Applicants for comment.  (See SZBEL v Minister for Immigration & Multicultural Affairs (2006) 231 ALR 592 at [33]-[43]; NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241at [21]).

  4. In my view no jurisdictional error has been made out. I am mindful of the fact that the Applicants are not legally represented but I am unable, from my independent reading of the decision and supporting documents to identify any arguable case for a jurisdictional error and I am satisfied that the Tribunal decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act.

  5. Under sub-s.474(1) of the Act the Tribunal decision is final and conclusive and is not subject to orders in the nature of certiorari or mandamus as the Applicants seek.

  6. There is an application for costs on behalf of the First Respondent Minister in the sum of $4,100.00. The Applicants have been wholly unsuccessful in their claim and in my view that is an appropriate matter for a costs order in favour of the First Respondent Minister. I am told that the amount of $4,100.00 which is sought is inclusive of counsel's fees and is calculated on a party and party basis. In my view it is an appropriate figure and well within the scale envisaged by the Federal Magistrates Court Rules.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  16 July 2007


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