SZKLX v Minister for Immigration - [2007] FMCA 1240

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKLX v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1240

MIGRATION – RRT decision – Singapore national fearing criminal prosecution and other harms – Tribunal finding that not covered by Refugees Convention – no jurisdictional error found.

Migration Act 1958 (Cth), ss.474, 476

Applicant A & Anor v MIEA & Anor (1996) 190 CLR 225

Applicant:

SZKLX

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1126 of 2007

Judgment of:

Smith FM

Hearing date:

20 July 2007

Delivered at:

Sydney

Delivered on:

20 July 2007

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the First Respondent:

Mr H Bevan

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1126 of 2007

SZKLX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 3 April 2007, which has been set down for final hearing under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 6 March 2007 and sent on that date to the applicant, who was in detention at Villawood. The Tribunal affirmed a decision of a delegate made on 19 January 2007, refusing to grant a protection visa to the applicant.
Under s.476 the Court has “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but its powers are confined by s.474 so that I do not have power to send the matter back to the Tribunal unless I am satisfied that the Tribunal's decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for a protection visa, nor whether he should be given permission to stay in Australia. As I have told the applicant today, the Minister has discretions in that respect which the Court cannot direct.
The applicant arrived in Australia in June 2006, and subsequently came to the attention of Australian law enforcement officers in relation to offences for which he has served a gaol sentence. After his release, he was taken into detention at Villawood. The details of those offences are not shown in the evidence before me.
On 9 January 2007, he lodged an application for a protection visa.

In this he sought protection against return to his country of nationality, Singapore. He referred to a period of residence in Malaysia after leaving Singapore in 2002, and until he came to Australia for a holiday.
The basis of his fears of return to Singapore were not clearly indicated in the protection visa application, and the delegate was not satisfied that the applicant would suffer persecution for a Convention reason if he returned to Singapore.
On appeal, the applicant attended a hearing held by the Tribunal on 1 March 2007, and explained his concerns more clearly. He referred to a relatively minor offence for which he had received a sentence in Singapore, and to some criminal activities in which he had participated before leaving Singapore. He said that he believed he was being sought by Singapore Police for potentially serious charges. He said that he had not been involved in any criminal activity during his residence in Malaysia, and he explained the offence for which he was sentenced in Australia after pleading guilty. His reasons for fearing being returned to Singapore were: first, that he would be sent to prison because of his previous criminal activities in Singapore; secondly, that he would be “beaten up by debt collectors because he ran away with their money and was unable to pay it back”; and, thirdly, that he would be at risk from unnamed people that would accuse him “of being an informer”.
The Tribunal put to the applicant that these concerns did not appear to relate to any of the Convention reasons for which a protection visa could be granted, and the applicant had no response to this.
In its statement of reasons, the Tribunal addressed the applicant's concern that he would be dealt with by the Singapore criminal justice system. The Tribunal accepted that the applicant “if found guilty, would be sentenced to a lengthy term of imprisonment and possibly caned.” It then addressed whether those circumstances could come within the Convention definition’s reference to “persecution”, referring to dicta of McHugh J and Brennan CJ in Applicant A & Anor v MIEA & Anor (1996) 190 CLR 225 at [233] and [258]. It concluded:
The Tribunal is of the view that the criminal law of Singapore which also regulates [relevant] offences is a law of general application. Whilst the law prescribes and imposes severe punishments on [persons convicted of the relevant offences], the Tribunal is satisfied that the intent of the law is not discriminatory and is to achieve a legitimate object in Singapore … [to protect] public health and safety. There was no evidence before the Tribunal to suggest and the Tribunal is not satisfied that the law discriminates against any group or that it is enforced selectively or in a discriminatory way. The Tribunal is satisfied that if the applicant were to face punishment by the authorities upon his return for the reason of committing [relevant] offences in Singapore, any harm suffered by him would not be discriminatory and does not constitute being persecuted for a Convention reason.
The Tribunal then considered the applicant's other two concerns, and concluded that they did not relate to a Convention reason for the harms feared. The Tribunal concluded that it was not satisfied that the applicant “has a well-founded fear of persecution for Convention reasons. He is not a refugee.”
I have considered the reasons and procedures followed by the Tribunal, and I am not satisfied that its decision was affected by jurisdictional error. In my opinion, the Tribunal shows a sufficient appreciation of the principles established by Applicant A in relation to fear of criminal prosecutions.
The applicant's application to this Court has the following grounds:
1.The Tribunal has made a jurisdictional (?) error while handing down there decision.
2.There was an error in law.
3.He wasn’t given proper legal as for whatever. I didn’t understand and I wasn’t informed in details.
Although he was given an opportunity to file an amended application and written submissions after receiving the relevant documents and a referral for legal advice, the applicant has not filed any documents further explaining these grounds. In the course of today’s hearing, he passed up a typed written submission. This does not provide any argument raising a jurisdictional error.
I am unable, myself, to find any argument coming within the general contentions made in the application of jurisdictional error and error of law.
I accept the submission made by the Minister in his written submission that there was no duty on the Tribunal to give the applicant “proper legal advice”, if that is the contention made in ground 3.
It appears to me that the Tribunal squarely raised with the applicant the central difficulty facing the applicant, which was that the harms he feared were not covered by the Refugees Convention, and that the issues were was properly addressed by the Tribunal.
The applicant's submissions to me, both orally and in writing, repeated his concerns that he would be severely sentenced if he returned to Singapore, and that he would face economic and other hardships there. However, these are matters to which the Court cannot give recognition by way of any relief in these proceedings.
For the above reasons, I am not satisfied that the Tribunal's decision was affected by jurisdictional error. It is therefore a privative clause decision, and I must dismiss the application.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 10 August 2007