SZKIX v Minister for Immigration
[2007] FMCA 1047
•2 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKIX v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1047 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – applicant is a citizen of South Korea – claiming fear of persecution from violent criminals connected with private moneylenders – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 474 |
| Applicant: | SZKIX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 878 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 2 July 2007 |
| Date of last submission: | 2 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 2 July 2007 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr Bevan |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The title of the First Respondent Minister is changed to Minister for Immigration & Citizenship.
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $4,100.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 878 of 2007
| SZKIX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal. The Tribunal signed its decision on 12th February and handed that decision down the same day, 12th February 2007. The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
The Applicant, by his application and affidavit filed on 12th March 2007, seeks judicial review of that decision. He seeks a writ of prohibition directed against the First Respondent Minister, restraining the Minister from acting on the Tribunal decision. He also seeks an order in the nature of mandamus, requiring the Tribunal to reconsider the application, according to law. I explained to the Applicant that, in order for the Court to set aside a decision and make an order in the nature of mandamus, the Court had to be satisfied that there was a jurisdictional error.
Background
The background to this matter is that the Applicant is a citizen of South Korea. He arrived in Australia on 17th February 2002 and applied for a protection visa on 9th January 2007. That application was refused on 12th January 2007.
The ground of the application is that the Applicant fears persecution from violent criminals connected with private moneylenders. He borrowed money and gambled money and the criminal people have been pursuing him and he claims that they have threatened his life and threatened the life of his family. The Applicant is, and was at the time of his application for a protection visa, detained in the Immigration Detention Centre in Villawood.
The Tribunal wrote to the Applicant under the provisions of s.424A of the Migration Act on 29th January 2007. The Tribunal had previously acknowledged receipt of his application for review, which was made on 16th January. The Tribunal also invited the Applicant to attend a hearing to take place on 9th February.
The Tribunal's letter to the Applicant set out that the Tribunal had information that would, subject to any comments that he made, be the reason, or part of the reason, for deciding that he was not entitled to a visa. That information was set out in a document known as ‘Attachment A’, which was annexed to the Tribunal's letter. The Tribunal invited the Applicant to comment on that information and asked for those comments to be received by 5th February 2007, which was four days before the hearing.
The document headed ‘Attachment A’ set out the information that the Tribunal believed would be the reason, or part of the reason, for deciding that he was not entitled to a protection visa. That information is as follows:
The applicant claimed to have departed South Korea ‘because of gambling’. He claimed to have ‘used his savings to gamble and then started to borrow money from friends and acquaintances’. He was unable to pay the interest on his borrowings. Accordingly, he left South Korea in February 2002.
The applicant claimed that after he departed his family had advised him the police had attended his home in South Korea. The police were seeking his whereabouts and had spoken to his children as his wife had not been home at the time. The police advised his children to inform him that if he did not contact them they would issue a warrant (presumably for his arrest). The applicant claimed the police had told the children they were seeking his whereabouts as people had ‘complained he owed them money’.
The applicant claimed his wife had divorced him in 2002 ‘because of his gambling’; and he is no longer in contact with his children since 2002; as he does not ‘want them to have any problems for what he has done’. However the applicant feared that if he returned to South Korea he would be imprisoned ‘for a long time’. He also feared the people to whom he owed money may try and harm him. Thus he feared the people to whom he owed money and the police.
The Tribunal's letter went on to say that:
Based on this information the Tribunal:
1. May not be satisfied the applicant has a real chance of being harmed (for the purposes of the Refugees Convention), should he return to South Korea;
2. May not be satisfied the applicant may be subject to harm which is sufficiently serious to amount to persecution (for the purposes of the Refugees Convention), should he return to South Korea; and
3. May not be satisfied that an essential and significant reason the applicant may be harmed is for at least one of the reasons provided in the Refugees Convention.
The Applicant responded to the Hearing Invitation, indicating that he wished to attend the hearing, but did not provide any comments in reply to the s.424A letter. It does appear that a migration agent was having difficulty seeing the Applicant in order to take those instructions.
Eventually, the Applicant provided a statement which was received at the hearing. In that statement the Applicant said that he had lost all his money from stock investments and gambling in casinos over two years, from 2000 to 2001. He was also accused of writing a cheque that was not met on presentation. He indicated that he lost his house and all his money and that he had a great number of debts and he had even attempted suicide. Eventually he left and went to Australia. He indicated:
If I go to Korea, I do not have a place to live in. My children will have a hard time due to the criminal organisation, fear and anxiety. I will be sentenced to by the court to a prison term. It will be less suffering for my children if I wind up my life here in Australia rather than in Korea.[1]
[1] See Court Book, p.71
The Applicant attended the hearing and gave evidence. A copy of the Tribunal decision record appears at pages 78 through to 83 of the Court Book. The Tribunal considered the Applicant's claims and the evidence and set out its findings and its reasons on pages 82 and 83 of the Court Book.
The Tribunal’s findings and reasons
The Tribunal considered the applicant's evidence and accepted that the Applicant was a national of South Korea. The Tribunal went on to find that:
The Tribunal may be satisfied the harm the applicant is claiming to fear would ordinarily, without more, be sufficiently serious to constitute persecution for the purposes of the Refugees Convention.
Again, based on the applicant's evidence and the country information considered, the Tribunal may be satisfied the applicant's fear will ordinarily, without more, be considered well‑founded for the purposes of the Refugees Convention.[2]
I note that there is no reference to any independent country information considered by the Tribunal.
[2] See Court Book, p.82
The Tribunal went on to consider whether the harm that the Applicant feared was for at least one of the reasons provided within the Refugees Convention. The Tribunal's consideration was that:
The Tribunal was not satisfied that an essential and significant reason he may be pursued was for one of the reasons provided in the Refugees Convention. For instance, the South Korean authorities and most of his debtors, were apparently seeking the applicant for reason of his non‑payment of borrowed monies; for reason of him bouncing cheques etc. There is no suggestion he may be pursued by such persons for any other reason. The applicant also feared some persons representing criminal groups may pursue him. The Tribunal was not satisfied such persons or groups would pursue the applicant for any Convention reason; nor based on the country information considered (including but certainly not limited to US Department of State, Country Reports on Human Rights Practices, Republic of Korea, 2005), that the South Korean authorities would not be willing or able to protect the applicant. There was no evidence that satisfied the Tribunal for instance, that state protection would be withheld from the applicant for a Refugees Convention reason.[3]
[3] See Court Book, pp. 82-83.
The Tribunal noted that the Applicant claimed to attend church in Australia but did not understand that the Applicant was claiming to fear persecution for reason of religion in South Korea. The Tribunal was not satisfied the Applicant had a well-founded fear of persecution for a Convention reason in South Korea and affirmed the decision not to grant the applicant a Protection (Class XA) visa.
The application for judicial review
In his application, the Applicant sets out three grounds:
(1)If I return to my country, I will be imprisoned for 5- 10 years because of my gambling debts and money owed. If I am released from prison after this time, my life will be in danger because of a criminal group similar to the mafia, who will look for me and maybe harm my family.
(2)The RRT Member did not fully understand the danger to me and possibly to my family.
(3)The respondent, the RRT, refused to grant my protection visa application without further investigations.
The Applicant provided a written submission. Regrettably, most of that document was in the Korean language, without a translation, and appeared to contain copies of bank statements. There was also a support letter from a representative of the Villawood Mission, where the writer expressed support for the Applicant but also raised concerns about the Applicant's mental state and suggested that there seems to be some kind of mental illness and the Applicant needs to see a psychiatrist urgently. There was also a certificate of baptism from the Hillsong Church and a certificate showing that he had completed a Discovery Course run by that church.
I am, of course, concerned about the fears that the Applicant may need psychiatric attention and I propose to recommend that such assistance be provided to him.
The Applicant's oral submissions dealt with his fear of violent criminals connected with private moneylenders. He expressed for his own safety and that of his family. The Applicant also took issue with the Tribunal for not seeking to look at the cause of his gambling, although that would appear to be outside the scope of the Tribunal's jurisdiction.
I have had the benefit of a written outline of submissions prepared, on behalf of the Minister, by Mr H P T Bevan of counsel. Counsel for the Minister submits that the Tribunal's reasons clearly indicate that the Tribunal did understand the Applicant's claims regarding danger to him, and points out that the Tribunal was prepared to accept that the harm would ordinarily, and without more, be sufficiently serious to constitute persecution. However, the Tribunal found that the necessary Convention nexus was absent.
It was also submitted that it was for the Applicant to satisfy the Tribunal that he meets the criteria for a protection visa, and there was no obligation on the Tribunal to conduct any further investigations. Indeed, the investigations that the Applicant said the Tribunal should have conducted as to the cause of his gambling would not indicate any nexus with the Convention.
The Applicant's grounds for review must fail. He has not established jurisdictional error.
I am aware that the Applicant is not legally represented and my own independent reading of the Tribunal decision and supporting material does not indicate any jurisdictional error. The Tribunal did write to the Applicant and provide information to him under the provisions of s.424A of the Migration Act. There is no breach of that section, nor is there any breach of s.425. The Tribunal invited the Applicant to a hearing and the Applicant attended and gave evidence, with the assistance of an interpreter in the Korean language. There is no suggestion of bias and I am satisfied that no jurisdictional error has been revealed.
I accept the fact that the Applicant is distressed and gloomy about his future if he were to return to Korea but the Applicant did not provide to the Tribunal any information that would indicate that he met the criteria for a protection visa under the provisions of sub-s.36(2) of the Migration Act.
As there is no jurisdictional error, the decision is a privative clause decision, as defined by sub-s.474(2) of the Migration Act. Consequently, under sub-s.474(1), it is not subject to the orders in the nature of prohibition and mandamus that the Applicant seeks. It follows that the application must be dismissed.
There is an application for costs on behalf of the First Respondent Minister. The Applicant has been unsuccessful in his claim and this is an appropriate matter for a costs order. The amount sought is $4,100.00, inclusive of counsel's fees. I accept the fact, as I told the Applicant, that he does not have the funds that would enable him to meet that order. Nevertheless, and acknowledging that the costs order may be somewhat academic, I do propose to make an order.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 4 July 2007
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