SZQLL v Minister for Immigration
[2011] FMCA 756
•5 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQLL v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 756 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and was given the pseudonym SZQLL. |
| Migration Act 1958 (Cth), ss.36(2)(a), 91X |
| Abebe v Commonwealth of Australia (1999) 162 ALR 1 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 |
| Applicant: | SZQLL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1543 2011 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 28 September 2011 |
| Delivered at: | Sydney |
| Delivered on: | 5 October 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Applicant appeared in person with the assistance of a Tongan interpreter |
| Solicitors for the Respondents: | Ms A. Collins of Minter Ellison |
ORDERS
The Application filed on 20 July 2011 is dismissed.
The Applicant is to pay the First Respondent’s cost and disbursements of and incidental to the Application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1543 2011
| SZQLL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In accordance with the Court Orders made on 30 August 2011, the solicitor for the First Respondent was required to file a folder of materials which was to be indexed, labelled and paginated containing all of the documents which may be relevant to the hearing. This Order was complied with and the volume of materials provided is identified as the Court Book (“CB”). On the date of the hearing the Court Book was marked Exhibit “A”.
At the First Court Date directions hearing on 16 August 2011 the Applicant expressed the desire to participate in the pilot RRT Legal Advice Scheme (NSW) and the Scheme Coordinator was advised of that request. In the Court file a certificate lodged by the panel advisor indicated that he had a conference with the Applicant at the Villawood Detention Centre and provided the Applicant with advice. Also contained within the Orders made at the Directions hearing on
16 August 2011 was a request that the Applicant file and serve in the Registry, a short written outline of submissions and a list of authorities 14 days before the hearing. The Applicant indicated that he had failed to satisfy this requirement.
The proceedings
The Applicant is a citizen of Tonga and arrived on 14 August 2008 as a holder of a Multiple Entry (Subclass TR – 676) Visa to attend the World Youth Day. He departed Australia on 9 August 2008 and returned again on 14 August 2008 on the same visa (CB 80). On 15 November 2008 the Applicant became an unlawful non-citizen.
He was granted a Bridging Visa in 2010 however his last Bridging Visa ceased on 30 August 2010. He was detained on 13 January 2011 and remained in the Villawood Immigration Detention Centre (CB 80).
On 13 April 2011 the Applicant applied to the Department of Immigration and Citizenship for a Protection (Class XA) Visa (CB 1-53).
In the Statutory Declaration attached to his Application made on
11 April 2011, the Applicant claimed that he could not return to Tonga because of an incident which occurred in Australia in early 2010, during which time he was attacked (for unknown reasons) and lost the sight in his right eye (which was removed and replaced with a prosthetic eye) (CB 38). The Applicant claims that he will be unable to obtain the medical treatment necessary for ongoing treatment to his right eye in Tonga. He also claims that he will be harassed and discriminated against (including in relation to employment) because of his disability, and that the authorities in Tonga will not be able to protect him. The Applicant also claims that his capacity to subsist will be threatened (CB 39-40).
On 16 May 2011, a delegate of the First Respondent wrote to the Applicant inviting him to attend an interview with an officer of the Department on 20 May 2011 (CB 67). On 24 May 2011, a delegate of the First Respondent refused the Applicant’s application for a protection visa (CB 80 – 85). The Applicant was notified of this decision by letter dated 24 May 2011 (CB 71). On 26 May 2011 the Applicant sought review of the delegate’s decision by the Refugee Review Tribunal (CB 87). On 1 June 2011, the Refugee Review Tribunal invited the Applicant to appear before it on 19 June 2011 to give evidence and present arguments relating to the issues arising in his case (CB 102). The Applicant attended that hearing (CB 139).
On 7 June 2011, prior to the Tribunal hearing, the Applicant’s legal representative provided written submission in support of his Application (CB 112- 138). The submissions repeated and elaborated on the claims that the Applicant had made in his Protection Visa (Class XA) application, including that:
In the present case, given our client’s disability and difficulty being experience in the Tongan economy, the chances of him being unable to subsist are significant. We therefore submit that Australia has protection obligations in relation to our client (CB 115).
On 24 June 2011, the Tribunal decided to affirm the delegate’s decision not to grant the Applicant a protection visa (CB 144). The Tribunal notified the Applicant of that decision by letter dated 27 June 2011 (CB 143).
The Tribunal hearing
In setting out the following material, I have relied upon the written submissions prepared by Ms Collins, solicitor for the First Respondent. I have made no further direct attribution as this would make the summary unwieldy. The information is provided to assist in the understanding of the nature of the Application and not to establish any evidentiary point. It is the decision of Tribunal member John Cipolla dated 24 June 2011, RRT case number 1105034 that is the decision under review.
The Tribunal concluded that the Applicant did not have a well-founded fear of persecution or a Convention reason, on the basis that:
a)The Applicant would not be targeted or singled out in his ability to find adequate health care in Tonga, but rather the shortcomings of Tonga’s healthcare system are a general problem reflection the circumstances of a small island State (CB 156, para.59);
b)The Applicant has no obvious disfigurement as a result of his injury and disability, leading the Tribunal to conclude that the Applicant would not suffer from any discriminatory work practice on that basis (CB 157, para.60); and
c)The Applicant’s likely inability to find work could not flow as a result of discriminatory treatment but would simply reflect the poor state of the Tongan economy and the limited employment opportunities that the economy provides to its citizens (CB 157, para.61).
The Tribunal could not be satisfied that the Applicant is a person to whom Australia had protection obligations under the Refugee Convention and therefore concluded that he did not satisfy the criteria set out in s.36(2)(a) of the Migration Act for a protection visa (CB 157, para.64).
Grounds for review
The grounds contained in the Applicant’s Application for Review filed on 20 July 2011 are:
1. Cannot return to Tonga because no opportunities of receiving treatment for prosthetic right eye.
2. Discrimination faced by all members of community in Tonga due to inability to obtain work because of disability/
3. Financial suffering due to a lack of ability to work on self and family.
Submissions
The Applicant confirmed that he had not prepared any written submissions in support of his Application. When invited to make any oral submissions, he simply repeated his claim that he would not be able to source the appropriate medical support in Tonga for his prosthetic eye. It was explained to the Applicant that the function of this Court was not to carry out merits review in respect to his original visa application but was limited to review of the Tribunal decision should it contain any jurisdictional error. The Applicant indicated that he understood this. Ms Collins indicated that she relied upon her written submissions which it was submitted that the Applicant’s grounds of review were mere assertions of fact which are not susceptible to judicial review. To the extent that the Applicant seeks to challenge the factual findings of the Tribunal, it is submitted that such a challenge would amount to an impermissible attempt to engage the Court in a merits review of the Tribunal’s decision: Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272 and 292.
It was submitted on behalf of the Minister that to the extent that the Applicant seeks to allege that the Tribunal failed to consider the Applicant’s claims, such a claim is not supported by the terms of the Tribunal’s reasons for decision. The Tribunal set out the Applicant’s written claims in detail at para.21 and 24 (CB 147- 152) and summarised his oral evidence to the Tribunal at para.26-49 of its reasons for decision (CB 152 – 155). The Tribunal made findings in relation to those claims at para.54 – 63 of its decision (CB 156 – 157), which the Minister submits was reasonably open to it on the material before the Tribunal.
Consideration
I agree with Ms Collins’ written submissions that although the Application pleads three grounds of review, in effect it is really a continuous narrative of a single complaint that the Applicant would not be able to access adequate medical facilities for his condition, mainly the loss of his right eye, the care for the prosthetic eye and that he would also be unable to find work in Tonga which would be exacerbated by his disability. In effect, the grounds of review and the limited oral submissions made by the Applicant during the make no reference to the contents of the Tribunal decision other than the ultimate outcome that his application was rejected.
A review of the Court Book, which is the only evidence before the Court, reveals that the Applicant was represented by a legal practitioner and registered Migration Agent from the period when the original protection visa application was lodged up to the Tribunal hearing. That firm provided detailed written submissions to the Tribunal together with a number of information bulletins from the Kingdom of Tonga addressing the issue which was the subject of the Applicant’s claim. Within the decision itself the Tribunal member has recorded in some detail the details of the Applicant’s claim and information revealed during the Tribunal hearing. Each of those issues has been addressed by the Tribunal and it is not apparent that any error arises from the method adopted by the Tribunal member in carrying out its review.
The Tribunal indicated that it believed that the Applicant had given an honest account in respect to his claims at the review hearing and accepted that the Applicant’s evidence could be relied upon. The Tribunal also accepted that the Applicant had sustained a substantial injury as a result of the assault in April 2010 while living unlawfully in Australia and as a result of that assault, the Applicant had sustained an injury to his right eye which was unable to be saved and was replaced with a prosthetic eye. The Tribunal also accepted that the Applicant will need ongoing monitoring and medical treatment in relation to his right eye which include regular checkups and an operation on the bottom right eyelid.
The Tribunal also acknowledged that the Applicant’s treatment is highly specialised and he may not be able to receive this treatment if he returns to Tonga due to the limited medical facilities available there. However, the Tribunal was not satisfied that the Applicant would face a real chance of persecution or would suffer serious and discriminatory harm amounting to persecution in Tonga because of his inability to obtain adequate care, or because of his ability to find employment in that country. On a fair reading of the Tribunal decision it is not apparent that any jurisdictional error has been made. Consequently, the Application filed in this Court on 20 July 2011 is dismissed and the Applicant is to pay the First Respondent’s costs of this Application.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 5 October 2011.
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