SZLBF v Minister for Immigration & Anor

Case •

[2007] FMCA 1602

•

10 September 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLBF v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1602
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 – Applicant a citizen the Republic of Korea - claim of persecution for reason of political opinion – procedural fairness – where applicant did not attend the Tribunal hearing – no reviewable error.
Migration Act 1958 (Cth), ss.424, 425, 426A, 474

SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs  [2005] FCA 1811

SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306
Applicant: SZLBF
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG 2164 of 2007
Judgment of: Scarlett FM
Hearing date: 10 September 2007
Date of last submission: 10 September 2007
Delivered at: Sydney
Delivered on: 10 September 2007

REPRESENTATION

Applicant In Person
Solicitor for the Respondent: Ms Mansour
Solicitors for the Respondent: Clayton Utz

ORDERS

  1. The Application is dismissed.

  2. The Applicant is to pay the First Respondent's costs fixed in the sum of $3,200.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2164 of 2007

SZLBF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. The Applicant, who is a citizen of the Republic of Korea, asks the Court to set aside a decision of the Refugee Review Tribunal. The decision was signed on 23rd October 2006 and it was handed down on 14th November 2006.  The Tribunal refused the Applicant a protection visa.

  2. The Applicant now asks the Court for a writ requiring the Tribunal to redetermine his case. Obviously, that will require an order in the nature of certiorari, quashing or setting aside the Tribunal's decision.  In order to set aside the Tribunal's decision, the Court must be satisfied that the decision is affected by jurisdictional error. 

Grounds of Review

  1. The Applicant sets out in his application three grounds upon which he claims the Tribunal fell into error.  The three grounds are:

    1.Not all of the information I submitted to the Department of Immigration & Citizenship and the Tribunal was properly considered.

    2.My claim that the nationality security law in Korea is still in force to arrest people like me was denied by the Department of Immigration & Citizenship and the Tribunal.

    3.The Tribunal's decision is null and void, due to its negligence not to investigate my matter fairly.   

  2. In order to assess the grounds set out by the Applicant, it is necessary to consider the background to this matter. 

Background

  1. The Applicant, who is a citizen of the Republic of Korea, arrived in Australia on 11th February 2000. He did not apply for a Protection (Class XA) visa until 11th May 2006.  A delegate of the Minister for Immigration & Multicultural Affairs refused that application on 12th July 2006. 

  2. On 17th August 2006, the Applicant applied to the Refugee Review Tribunal for a review of that decision. A copy of the application for review can be found at pages 40 through to 43 of the Court Book.  The application for review sets out the Applicant's address and telephone number and says that he will need an interpreter in the Korean language.  No other documents were submitted with the application. 

Application for Review by the Refugee Review Tribunal

  1. The Tribunal wrote to the Applicant on 18th August, one day after it received the application, acknowledging receipt of that application.  On 29th August 2006 the Tribunal wrote to the Applicant. The letter told the Applicant that the Tribunal had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. The letter invited the Applicant to attend a hearing to give evidence and present arguments in support of his claims. 

  2. The hearing was scheduled for 19th October 2006. The Applicant did not attend the hearing. The Tribunal signed its decision four days later, on 23rd October 2006. The Tribunal handed that decision down on 14th November 2006.  A copy of the Tribunal decision record can be found at pages 56 through to 62 of the Court Book.

  3. In that decision the Tribunal set out the Applicant's claims and evidence on pages 59 and 60. The Tribunal noted that the Applicant claimed that he feared persecution because of his student activities in South Korea. He claimed to have been involved in demonstrations against the national security law and that he was a key figure in opposing government policy on reunification and reconciliation between North Korea and South Korea. 

  4. The Applicant claimed to have been detained and beaten several times because of his involvement in the protest against government policy.  He claimed to fear to return to South Korea because he still has a strong connection with associations supporting the reunification movement. The Applicant claimed that the government regarded that organisation as a threat to national security, and also pro-Communist.  He claimed that the government of South Korean continue to suppress and persecute the leaders of that organisation. In particular, the Applicant claimed that he feared the Korean National Police Administration and National Security Planning Agency. 

  5. The Tribunal noted that the Applicant did not appear on the day and at the time and place at which he was scheduled to appear for a hearing. The Tribunal decided to exercise its power under s.426A of the Migration Act to make a decision on the review without taking any further action to enable the Applicant to appear before it.

The Refugee Review Tribunal Decision

  1. The Tribunal accepted that the Applicant was a citizen of the Republic of Korea. However, the Tribunal was not satisfied that the Applicant had a well‑founded fear of persecution in Korea, for reasons of political opinion or any other Convention reason. The Tribunal gave these reasons:

    The applicant did not attend the hearing and this leaves me with claims which are untested and stated in the most general of terms.  The information that the applicant has provided does not give sufficient detail to satisfy me that he would face a real chance of persecution for reasons of his political opinion and past activities, should he return to South Korea now or in the foreseeable future.[1]

    [1] See Court Book at page 60

  2. The Tribunal affirmed the decision of the minister's delegate not to grant the applicant a protection (Class XA) visa. 

Application for Minister’s Intervention under s.417

  1. The Applicant later wrote to the Minister for Immigration. On 18th December 2006, the Applicant wrote to the Minister, asking the Minister to exercise the Minister's discretion, which comes under s.417 of the Migration Act. That letter referred to the delegate's decision not to grant the Applicant a visa and referred to the application for review on 17th August 2006. The letter then set out a statement about the political situation in Korea. A copy of the letter can be found at pages 63 and 64 of the Court Book.

  2. The Minister's department wrote to the Applicant on 25th May 2007, informing him that the Minister had decided not to consider exercising its power under s.417 of the Migration Act.

  3. The Applicant provided a change of address to the Refugee Review Tribunal on 2nd July 2007. The following day, the Tribunal wrote to the Applicant, enclosing a copy of the Tribunal's decision record.

Application for Judicial Review 

  1. The Applicant commenced proceedings on 12th July 2007. Along with his application, he supplied an affidavit to the Court.  In that affidavit he said:

    I was recently advised by the migration solicitor that I was eligible to appeal to the Court.

    Not all the information I submitted to the Court was properly considered by the Tribunal.

  2. At the hearing of this matter, the Applicant conceded that he had not attended the Tribunal hearing. He said that he had not received any notice to attend the hearing. He told the Court that the address given on his application for review was not his address but a friend's address.  He said that he had not received any letters from the Tribunal and speculated that his friend may not have passed the letters on to him.  He asked to submit a further letter to the Court setting out his case within 10 days. That application was refused because the matter was listed for final hearing today.

Ground 1

  1. As I mentioned earlier, the Applicant set out three grounds for review.  The first ground is that not all the information the Applicant submitted to the Department of Immigration & Citizenship and the Tribunal was properly considered. The Applicant was not able to indicate what information was not properly considered. I asked him specifically about that point and he said that he did not know. The Applicant said that his application to the Court had been prepared by another person. 

  2. I note, from the Tribunal decision, that the Tribunal appears to have set out a clear summary of the Applicant's claims in his protection visa application, and that this appears on page 59 of the Court Book. 

  3. The Applicant did not provide any further information with his application for review. The Applicant did not attend the Tribunal hearing and, so, the Tribunal was left with the original information that it had when it wrote its letter to him on 29th August 2006. That letter, written to comply with s.425 of the Migration Act, told the Applicant that the Tribunal had considered the material before it but was unable to make a decision in his favour on that information alone.

  4. At the time of the hearing, the Tribunal did not have any further information from the Applicant. In the circumstances, it was hardly surprising that the Tribunal was not able to make a decision favourable to the Applicant (See SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs[2] and SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs[3]). 

    [2] [2005] FCA 1811

    [3] [2005] FCA 1306

  5. The reason why the Tribunal did not grant the Applicant's application was because it did not have enough information to do so. The Applicant's first ground, therefore, must fail. 

Ground 2

  1. The Applicant's second ground says:

    My claim that the national security law in Korea, still in force to arrest people like me, was denied by the DIAC and the Tribunal.

  2. This ground appears to be a challenge to the merits of the Tribunal decision.  It is not open to the Court to consider again the facts relating to the Applicant's claim. The evidence before the Tribunal was inadequate to allow the Tribunal to be satisfied that the Applicant met with requirements for a protection visa. 

  3. The Applicant's second ground must fail.

Ground 3

  1. The Applicant's third ground claims that the Tribunal decision is null and void, due to its negligence in not investigating his matter fairly. 

  2. There is no evidence of negligence on behalf of the Tribunal. It is well‑established that the Tribunal has no obligation to exercise its powers, under ss.424 and 427 of the Migration Act, to conduct its own investigation of the Applicant's claims. There was no information before the Tribunal which necessitated the Tribunal exercising its powers to obtain further information.

  3. The evidence and the information provided by the Applicant did not give sufficient detail to satisfy the Tribunal that the Applicant would face a real chance of persecution for reasons of his political opinion or past activities if he were to return to South Korea. 

  4. This was a decision for the Tribunal to make and it was a decision open on the evidence before it.  There was nothing that required the Tribunal to make a further investigation.  It remains for the Applicant to provide information to the Tribunal to show that he meets the requirements for a visa. 

  5. The Applicant's third ground fails. 

Conclusion

  1. I am mindful that the applicant is not legally represented in these proceedings. I have read through the Tribunal decision and supporting material, independently of either the Applicant's application or the Minister's submissions, in order to ascertain whether an arguable case for jurisdictional error can be found. 

  2. There is no jurisdictional error. The Tribunal decision is a privative clause decision, as defined by s.474 of the Migration Act. It is final and conclusive and is not subject to orders in the nature of certiorari or mandamus.

  3. The application will be dismissed. 

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  28 September 2007


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