SZLBU & Ors v Minister for Immigration & Anor
[2008] FMCA 189
•12 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLBU & ORS v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 189 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – merits review not available in judicial review proceedings – Tribunal does not need to find a case against applicant in order to affirm delegate’s decision – Tribunal had no duty to undertake investigations – no error in Tribunal proceeding to decision under s.426A when applicant failed to attend Tribunal hearing. |
| Migration Act 1958, ss.65, 422B, 425A, 426A, 441A, 441C, 474 Migration Regulations 1994, reg.4.35D |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| First Applicant: | SZLBU |
| Second Applicant: | SZLBV |
| Third Applicant: | SZLBW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2236 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 12 February 2008 |
| Date of Last Submission: | 12 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 12 February 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The first and second applicants pay the first respondent’s costs fixed in the amount of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2236 of 2007
| SZLBU |
First Applicant
| SZLBV |
Second Applicant
| SZLBW |
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants are citizens of Korea where, the first applicant claims, his family was linked to a government organisation which was disapproved of by the government. He alleges that his father was associated with the “Jochongriun” organisation which supported reunification of North and South Korea and that this subsequently led to his family being discriminated against, harassed and intimidated by Korean national security agents. The first and second applicants left Korea for Australia, arriving on 7 November 1991. The third applicant was born in Australia on 29 September 1998.
The first applicant’s wife and son are the second and third applicants respectively. As they have no claims of their own, the first applicant will be described in these reasons as “the applicant”.
The applicant claims to fear persecution in Korea because of his membership of a particular social group, being his family.
Many years after his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 1 February 2007. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 5 of the Tribunal’s decision (Court Book (“CB”) pages 73 – 74). Relevantly, they are in summary:
a)the applicant’s father was linked to “Jochongriun”, an organisation in Japan which supported reunification between North and South Korea;
b)this organisation was regarded by the Korean government as an anti-State political group which harmed the “demographics of system of Korean politics”;
c)as a result of his father’s support of this group, the applicant’s family suffered discrimination at school and at work;
d)the applicant himself suffered discrimination when he tried to find work;
e)his family was intimidated by Korean national security agents;
f)the applicant was unable to finish his studies because he was intimidated at school;
g)the Korean national security agency opposed the socialist movement and blocked freedom of speech and freedom to study communism;
h)the applicant was mentally and psychologically exhausted by government policy which “persecute anti-government dissident, specially socialist secretly”; and
i)it was not possible for the applicant to ask police for protection from this harassment.
The Tribunal’s decision and reasons
On 26 March 2007 the Tribunal wrote to the applicant to advise that it had considered all the material before it in relation to his application but was unable to make a decision in his favour on that information alone (CB 60 – 61). The Tribunal invited the applicant to a hearing on 21 May 2007 to give oral evidence and present arguments. The applicant was advised that if he did not attend the Tribunal might make a decision on his application without further notice. No response was received from the applicant although, when he was telephoned by the Tribunal, he advised that he would attend the hearing. Notwithstanding what he had advised, the applicant did not attend the hearing. In these circumstances and pursuant to s.426A of the Act, the Tribunal proceeded to make a decision on the review without taking any further action to enable the applicant to appear before it.
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following reasons:
a)the applicant provided very little detail in support of his claims;
b)his discrimination claims appeared to relate to a period of his youth;
c)he had not supplied information on whether any of his family members are still in Korea, particularly his father, and whether or not they are continuing to face discrimination or harm;
d)the Tribunal was unable to ascertain that the organisation “Jochongriun” existed or how its supporters were treated by the South Korean authorities, noting that the applicant provided no evidence from any reliable external source that this group exists, or existed in the past;
e)the Tribunal was not satisfied that the applicant, even if he faced discrimination some decades ago, would continue to do so now and it was not satisfied that this might amount to persecution, noting that the applicant himself did not claim to be involved in any current political activities which might attract the adverse attention of the South Korean authorities; and
f)the Tribunal encapsulated its decision in the following passage:
In sum, the Tribunal has before it so little information about [the applicant’s] past experiences, and the basis for his claimed fear of harm in South Korea now, that it is unable to establish the relevant facts. (CB 75)
Proceedings in this Court
The grounds of the application were pleaded in the following terms:
1. Not all the information I submitted to the DIAC and the Tribunal was properly considered.
2. 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.
3. The Tribunal’s decision is void and null due to its negligence not to investigate my matter fairly.
In his affidavit sworn or affirmed 14 July 2007, the applicant also states that he was denied a fair chance of appearing before the Tribunal which he said today he wished to rely upon as a ground of review of the Tribunal’s decision.
Dealing with each of these grounds in turn:
Failure to consider information properly
This ground has not been particularised in the application or in such submissions as the applicant made today. As the summary of the Tribunal’s decision record appearing earlier in these reasons reveals, there was relatively little information before the Tribunal upon which it could consider the application before it. However, a consideration of the Tribunal’s decision reveals that such information as it did have, it did consider.
The crux of this particular asserted ground of review appears to be that such information as the Tribunal had was not “properly” considered. This element of the asserted ground of review is an invitation to undertake a review of the merits of the applicant’s application. Whether a different Tribunal might have reached a different conclusion on the same facts is not a matter which demonstrates jurisdictional error on the part of this Tribunal. In proceedings for judicial review, the Court cannot substitute its own views of the facts for those of the Tribunal even were it to have a different view of them.
For these reasons, the first asserted ground of review is not made out.
Tribunal denied the applicant’s claim
The second asserted ground of review misunderstands the role of the Tribunal. It is not a matter of the Tribunal finding a positive case against the allegations made by an applicant; the Tribunal does not have to disprove an applicant’s claim in order to affirm the decision of the delegate. The role of the Tribunal is to consider the material and arguments before it and to determine whether it is satisfied that an applicant meets the criteria for a protection visa. If it is not so satisfied, s.65 of the Act requires the Tribunal to affirm the delegate’s decision.
In this case, the Tribunal did not deny the applicant’s claim or make any positive finding against that claim. It was simply a matter of the Tribunal not being satisfied that the criteria for a protection visa had been made out, whether that related to the national security law in Korea still being in force or the other relevant aspects of the applicant’s claim.
Tribunal failed to investigate the matter fairly
The third asserted ground of review also misconceives the Tribunal’s role. Although it is an inquisitorial body, the Tribunal has no duty to undertake investigations, except possibly in very limited circumstances. Those circumstances do not exist here and although the Tribunal did have power to make inquiries, the fact that it did not do so does not show that it erred. Consequently, this third asserted ground of review is not made out.
Tribunal denied applicant fair chance of a hearing
In relation to the matter raised in his affidavit sworn or affirmed on 14 July 2007, the applicant has adduced no evidence. The only evidence on the subject is what is contained in the Court Book which is Exhibit A in these proceedings. A notice pursuant to s.425A of the Act dated 26 March 2007, addressed to the applicant at the address given by him in his application to the Tribunal, was despatched by registered post by the Tribunal on that day (CB 60, 73). I find that the letter was sent to the applicant on 26 March 2007 and that it invited the applicant to a hearing on 21 May 2007.
The procedural requirements associated with an invitation to an applicant to appear at a Tribunal hearing are set out in ss.425A, 441A(4), 441C(4) of the Act and reg.4.35D of the Migration Regulations 1994 (Cth). Given the date of the letter, the date of the hearing and the date on which the letter was sent, I find that the procedural requirements of the Act and the regulations were satisfied, that the applicant was properly invited to attend the Tribunal hearing and that this satisfied the relevant procedural fairness requirements of the Act which, it should be noted, have been codified by virtue of s.422B of the Act.
Consequently, I cannot find that this asserted ground of review is made out or that any jurisdictional error is demonstrated by the Tribunal proceeding to make its decision pursuant to s.426A.
Generally
The grounds of review raised by the applicant do not, in reality, address the principal issue arising out of the Tribunal’s decision. That issue is the fact that the Tribunal reached its decision because it was not satisfied on the material before it that the applicant met the criteria for a protection visa. As already noted in these reasons, the Tribunal wrote to the applicant on 26 March 2007 advising him that it could not make a favourable decision on the application based on the information it then had. Because the applicant failed to attend the Tribunal for the hearing, he denied himself the opportunity to give, and the Tribunal to receive, information which might have led it to the state of satisfaction required by the Act.
Because the Tribunal was unable to reach the level of satisfaction required and none of the grounds raised by the applicant today demonstrate jurisdictional error on its part, I find the Tribunal’s decision was not affected by jurisdictional error.
Conclusion
Consequently, the application will be dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 22 February 2008
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