SZLVY v Minister for Immigration
[2008] FMCA 944
•13 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLVY v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 944 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – merits review not available in judicial review proceedings – challenge to Tribunal’s “understanding” is no more than a challenge to its fact finding unless there is a reference to a failure to identify the considerations to be addressed or the tests to be applied – Tribunal has no duty to inquire – mere negligence on the part of the applicant’s migration agent does not vitiate the Tribunal’s decision. |
| Migration Act 1958, ss.91S, 417, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 |
| Applicant: | SZLVY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 11 of 2008 |
| Judgment of: | Cameron FM |
| Hearing date: | 2 July 2008 |
| Date of Last Submission: | 2 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 13 October 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 11 of 2008
| SZLVY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Korea where, he claims, he was being chased by private money lenders. He alleges that while in Korea he was running a travel agency which became insolvent, and that this subsequently led to huge financial and legal pressures. The applicant arrived in Australia on 31 August 2001.
The applicant claims to fear persecution in Korea because of outstanding loans to private money lenders.
After his arrival in Australia, the applicant lodged an application for a protection visa. His wife, their two sons and his mother-in-law were included in the application as members of the family unit but are not applicants in these proceedings. The application was refused by the Minister’s delegate on 20 September 2007. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant and his family were unsuccessful before the Tribunal and he has applied to this Court for judicial review of the Tribunal’s decision. As already noted, the applicant’s family members were not included as applicants in this application.
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 – 7 of the Tribunal’s decision (Court Book (“CB”) pages 150 – 153). Relevantly, they are in summary:
Protection visa application
In a statement accompanying his protection visa application form, the applicant claimed that:
a)the travel agency the applicant was running in Korea became bankrupt and the bankruptcy resulted in money lenders and legal pressures which forced the whole family to “live on the streets practically”;
b)were he to return to Korea he would be separated from his family because of legal problems and he would not be able to help his wife;
c)it is impossible for him to make a living while he is being chased by private money lenders, many of whom work with gangs;
d)the private money lenders will do anything to get money and he will not be able to hide the fact of his return to Korea;
e)in Korea the law is very distant for the powerless and only comes to the rescue when someone is hurt or dead. It is highly unlikely that the police will protect one’s safety or one’s house; and
f)things will be worse than when they left.
Tribunal hearings
At the Tribunal hearing on 8 November 2007, the applicant made the following additional claims:
a)he tried to revive his business by borrowing money from private money lenders, not banks;
b)the money lenders would ring and ask for money. On one occasion they came to his house and there was a scuffle and the applicant was hit. They also came to the company’s office and destroyed the business operations there;
c)he did not inform the police of this incident as he knew the police could not protect him 24 hours a day;
d)he is in debt to five money lenders, all of whom have threatened him;
e)he has never had any serious injuries, but there were threats and verbal violence;
f)in July 2003 one of the money lenders came to Sydney and the applicant paid him small amounts. The money lender then asked the applicant to pay for his travel expenses and when the applicant refused to pay on one occasion, the money lender hit him;
g)in June 2006 another money lender came to Australia. The money lender distributed photos and used the Korean community newspaper to look for the applicant but they did not meet;
h)after this incident the applicant could not continue with the business he was running in Sydney;
i)he borrowed $A120,000 and has paid back $A15,000; and
j)money lenders have a very bad reputation and are known to murder people. He is afraid that they will retaliate against him.
The Tribunal raised with the applicant at the hearing its concern that the harm feared by the applicant, while potentially serious, was not harm which was Convention-related. The hearing was adjourned so that the applicant could have some time to respond.
On 27 November 2007 the applicant appeared before the Tribunal for a second time and submitted that his family would be in a very difficult situation were he forced to return to Korea. The applicant’s adviser further submitted that the family members should have lodged their own claims for refugee status on the basis that they were members of a particular social group, being members of the applicant’s family.
The Tribunal’s decision and reasons
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 findings and reasons:
a)while the Tribunal accepted the applicant’s evidence as a genuine account of his circumstances, it was not satisfied that the harm feared by the applicant, arising out of his failure to repay debts, was harm which could properly be construed as Convention-based persecution. In reaching this conclusion, the Tribunal noted that:
i)the money lenders were of the same ethnicity and nationality as the applicant and no mention was made by the applicant of any threats being made against him or any harm being done to him for reasons of race, nationality, religion or political opinion;
ii)the applicant did not claim that the harm done to him was for reasons of his membership of a particular social group;
iii)the sole reason put forward by the applicant for the harm done to him was that he was unable to repay substantial sums of money which he had borrowed and the Tribunal did not accept this demonstrated the existence of a relevant social group in a Convention sense;
b)despite ample opportunity to do so, the applicant did not submit any evidence which might demonstrate a claim for Convention-based persecution; and
c)as the fear claimed by the applicant was not for a Convention reason, pursuant to s.91S of the Act the Tribunal disregarded any fear of persecution that the applicant’s family members may have had by reason of their membership of the particular social group being the applicant’s family.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
1.If we go back to Korea the situation would be far more intense than 7 years ago. First I would not be able to help her as I would have to go through trials. She would have to fight for her life instead of me in that worst situation. I belive [sic] she is not capable to overcome that. Once we arrive in Korea we cannot put food on the table and have no one to ask for help. It is impossible to make living while I am being chased by the private money lenders constantly. For her to care for the children as well as my mother in law is too much of a burden. She is mentally and physically exhausted. I’m afraid of what she would to herselfs [sic] she tried to commit 7 years ago so my family’s situation is very danger.
2.The RRT member did not fully understand the danger to me and my family.
3. The RRT member did not take evidence from my wife and witness and refused to grant my protection visa application without proper investigations.
In his written submissions the applicant also:
a)made complaints about the appropriateness and the effectiveness of the advice and representation which he and his family had received from the migration agent; and
b)sought a rehearing on the merits.
The applicant’s family situation
The first of the grounds pleaded in the application is, in reality, an invitation to the Court to reconsider the merits of his application in light of the consequences to his family which the refusal of the visa will have. As already noted, the Court cannot review the applicant’s application for a visa. Moreover, this ground does not address the basis of the Tribunal’s decision which was, on the facts which the Tribunal found, and which were largely in accordance with the applicant’s allegations, that no basis for the grant of a protection visa was established. This was because, even accepting the applicant’s version of events, the fear which the applicant described did not fall into any of the categories set out in Article 1A(2) of the Convention which define the basis upon which a person may be considered to be a refugee.
For these reasons, the first ground set out in the application does not disclose jurisdictional error on the part of the Tribunal.
Tribunal did not understand
The second ground for review alleged in the application is to the effect that the Tribunal’s appreciation of the facts was deficient, rather than that it did not understand what claims were being made. An attack on the Tribunal’s “understanding”, without reference to a failure to identify the considerations required to be addressed or the tests to be applied, is really no more than a challenge to the Tribunal’s conclusions on the facts. In judicial review proceedings such as these, it is not open to the Court to reconsider the Tribunal’s findings on such factual matters. Further, a consideration of the Tribunal’s decision does not lead me to the conclusion that the Tribunal did, in fact, fail to understand what the applicant was advancing. It appreciated what his allegations were but concluded that they did not amount to a claim which met the criteria of the Convention.
For these reasons, the second ground pleaded in the application does not disclose jurisdictional error on the part of the Tribunal.
Failure to take evidence and to inquire
The first element of the third ground pleaded in the application is that the Tribunal did not take evidence from the applicant’s “wife and witness”. The second element is that the Tribunal reached its decision without “proper investigations”. These elements may be, but are not necessarily, related. In any event, it is not apparent from the Tribunal’s decision record that any request was made to take evidence from the applicant’s wife or anybody other than the applicant himself. No evidence was led by the applicant to suggest that such a request was refused. In those circumstances, it cannot be concluded that any such request was made and rejected. Perhaps the applicant’s allegation is that the Tribunal should have asked his wife and other witnesses to give evidence. However, the Tribunal is not required to undertake inquiries nor to prompt from the applicant an elaboration of his case which he chooses not to make. It was for the applicant to put before the Tribunal such evidence and arguments as he wished the Tribunal to consider and if he did not do this then he cannot complain that the Tribunal did not do it for him.
Deficiencies in representation
The applicant made submissions concerning the representation provided to him by his migration agent and his complaints in relation to it. Although the applicant may have some legitimate complaints in respect of his representation at the Tribunal hearing, at their highest they do not go beyond allegations of negligence. Even were such allegations to be proved, they would not amount to matters vitiating the Tribunal’s decision such as were considered in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189.
Merits review
The second matter raised in the applicant’s written submissions was a request that the Court review the applicant’s family’s claims to be entitled to protection visas. This request is misconceived. Reviews of the merits of visa applications are undertaken by the Tribunal as a function of the executive branch of government. It is the Court’s role to determine that the review by the executive is conducted and determined according to law. The Court cannot review the merits of a visa application in these judicial review proceedings and consequently this ground does not disclose any basis upon which the Tribunal’s decision might be set aside.
Conclusion
As jurisdictional error on the part of the Tribunal has not been demonstrated, the application must be dismissed.
However, in light of the Tribunal’s findings of fact and the circumstances of the applicant and his family, the Minister might think it appropriate to give consideration to exercising his discretion under s.417 of the Act.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 13 October 2008
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