SZLOQ v Minister for Immigration
[2008] FMCA 272
•3 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLOQ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 272 |
| MIGRATION – Review of RRT decision – where claims have no Convention nexus. |
| Migration Act 1958 (Cth), s.422B |
| Applicant: | SZLOQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3370 of 2007 |
| Judgment of: | Raphael FM |
| Hearing date: | 3 March 2008 |
| Date of last submission: | 3 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 3 March 2008 |
REPRESENTATION
| Applicant in person |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $2000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3370 of 2007
| SZLOQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Tonga. He arrived in Australia in 1978 and held an absorbed persons visa and a transitional (permanent) visa which have now been cancelled. He has been detained under the Migration Act 1958 (Cth) (“the Act”). On 1 August 2007 he applied to the Department of Immigration and Citizenship for a protection visa which the delegate declined to grant on 3 August 2007. On 13 August 2007, the applicant applied for a review of that decision from the Refugee Review Tribunal. He appeared before the Tribunal on 6 December 2007 and his wife, who is an Australian citizen, gave evidence on his behalf, as did his sons, and a daughter and grandchild also attended. On 6 December 2007, the Tribunal affirmed the decision not to grant a protection visa.
In his application, in response to the question “What do you fear may happen to you if you go back to that country?” the applicant said [CB 18]:
“I will not be accepted by people in Tonga because I have been out of the country so long. I will not be able to work or lead a normal life.”
He stated, in response to questions 43, 44, and 45, that the Tongan people would mistreat him if he returned because of his long absence and he could not obtain protection from his country because it would not help him in any way. The delegate in his decision indicated that he was unable to grant the requested visa because the applicant’s claim to fear persecution did not come within any of the Convention grounds.
The applicant provided a statutory declaration to the Tribunal [CB56-58]. It explained that he was born in Tonga, but that he had been in Australia for almost 30 years. He has an Australian partner and he has four children. He has no relatives left in Tonga because of his extended absence. He had been a seaman before he entered Australia. The applicant stated that he did not wish to be separated from his wife and children, especially the children who needed him for guidance and support. He felt that if he was to be taken from his children, they would face great hardship. He has four sisters, all of whom live here as Australian citizens together with their children. The applicant made reference to certain difficulties he had had, but since March 2006, he believed he was settled in the community and had no intention of falling into those difficulties again. The applicant stated that he was now 55 years of age and his only wish was to remain with his family.
At the hearing before the Tribunal, the applicant advanced no further ground upon which he could claim to be a person to whom Australia owed protection obligations [CB69]:
“After the Tribunal introduced the hearing and asked the Applicant if he had any questions about the hearing process, the Applicant asked why he had been “sent here” for a protection visa. The Tribunal took this to be a layman’s indication that the Applicant was seeking to remain in Australia not necessarily for reasons relevant to the Convention, as he sees it, but for what he described as the compelling social and emotional reasons discussed in his handwritten statement. The Tribunal explained to the Applicant that he appeared to be seeking consideration under s.417 of the Act and clarified that the Tribunal could only consider claims for Conventio-related protection. …
The Tribunal discussed the Convention with the Applicant and proceeded to ask a number of questions aimed at assessing whether or not he might have any Convention-related claims that he might not hitherto have recognised as such.
In his answers to the Tribunal’s questions, the Applicant indicated that his claims relate entirely to the social and emotional isolation he would feel amongst Tongan society after so long an absence, and to the great strain he and his Australian family would suffer were he to be removed from them and this country.”
It is not surprising that the Tribunal, whilst finding that the applicant’s claims were true and candid, was unable to point to a Convention ground for his fear of persecution in Tonga [CB70]:
“To put this in more detail, the Applicant has not identify [sic] the treatment he might face in Tonga that could reasonably be regarded as persecution and his claims do not support a finding that the suffering he might face upon returning to Tonga would be directed at him for any Convention-related reason. The Tribunal heard what it regards as the Applicant’s humanitarian claims. They were very compellingly put by an Australian family that, not to put too fine a point on it, has taken some tragic blows.”
The Tribunal concluded that the applicant’s claims could not be considered within its jurisdiction and found that the applicant was not a refugee.
In his application to this court, the applicant stated that the Tribunal erred in making its decision and that thus denied him procedural fairness and exceeded its authority. He said that the Tribunal erred in its decision and thus overlooked his circumstances and claims. The grounds of the application are not particularised and it is not clear exactly what the Tribunal is alleged to have done that was not procedurally fair, and in what way this unfairness could be fitted within the bounds of s.422B of the Act. Before me today, the applicant said that there had to be some error in the decision to send him back to Tonga. But that decision was not one made under the refugee visa sections of the Act. The decision to return the applicant to Tonga was, presumably, part of the decision to revoke the absorbed person visa that he already had. I explained to the applicant the necessity for finding a Convention nexus with the fears that he had expressed and that, without such a nexus, the Tribunal’s decision was open to it on the facts. The applicant was unable to provide me with any assistance to indicate how the Tribunal may have fallen into jurisdictional error by making the finding that it had made.
Having considered the Tribunal decision and the papers contained in the court book, it seems clear that the applicant received a sympathetic hearing from the Tribunal, but that the Tribunal rightly concluded that in the absence of a Convention nexus no grounds existed for making a claim to the protection obligations of this country. I dismiss the application. I order that the applicant pay the first respondent’s costs assessed in the sum of $2000.00.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 6 March 2008
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