SZRHV v Minister for Immigration - [2012] FMCA 579

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRHV v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 579

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether fear of harm from nuclear radiation in Japan is capable of being discriminatory persecution for a Convention related reason.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 474, Pt.8

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
Minister for Immigration and Multicultural Affairs v HajiIbrahim (2000) 204 CLR 1
NAHI v MIMIA [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29
Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 4
NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264
Abebe v Commonwealth of Australia (1999) 162 ALR 1
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259

Applicant:

SZRHV

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 729 of 2012

Judgment of:

Emmett FM

Hearing date:

3 July 2012

Date of Last Submission:

3 July 2012

Delivered at:

Sydney

Delivered on:

3 July 2012

REPRESENTATION

The applicant appeared in person and was assisted by an interpreter in the Japanese language.

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The proceeding before this Court, commenced by way of application filed on 3 April 2012, is dismissed.
The applicant pay the costs of the first respondent fixed in the amount of $5,500.

NOTE: The application for costs is in accordance with the relevant schedule in the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 729 of 2012

SZRHV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 6 March 2012 and handed down on 7 March 2012.
The applicant claims to be a citizen of Japan.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s protection visa application claims and the decision of the delegate of the First Respondent (“the Delegate”) and a summary of the Tribunal’s review and decision.

Background

On 7 March 2010, the applicant arrived in Australia having departed legally from Japan on a passport issued in his own name and a Subclass 417 Working Holiday visa.
On 5 March 2011, the applicant departed Australia.
On 6 March 2011, the applicant returned to Australia as the holder of a Subclass 976 Electronic Travel Authority (Visitor) visa.
On 7 December 2011, the applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 5 January 2012, the Delegate refused the applicant’s application for a protection visa.
On 6 January 2012, the applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 6 March 2012, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 3 April 2012, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then s.65(1)(b) mandates that the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“… owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
Pursuant to s.91R(1) of the Act, a Convention related reason must be the essential and significant reason for the persecution, must involve serious harm to the person and involve systematic and discriminatory conduct. Section 91R(2) of the Act expands on the notion of persecution and serious harm when considering Art.1A(2) of the Convention.

The Applicant’s application for a protection visa

The applicant provided a statement in support of his protection visa application in which he stated that:
a)He is a citizen of Japan and has no religion.
b)He left Japan because he wanted to work in Australia, improve his didgeridoo and English language skills, and, because the Japanese authorities and government have been dishonest about the dangers of nuclear power in Japan.
c)His health has been poor and he believes the Japanese government’s lack of concern for air quality will continue to affect and shorten his life.
d)The electricity companies and the Japanese government are misleading the Japanese people into believing the situation is safe.
e)If he returns to Japan he will face unprotected radiation exposure, including in relation to food, air quality and ocean pollution.
f)He is a member of a particular social group deprived of good quality air, food and water in Japan.
g)The authorities in Japan refused to warn people of the real dangers of nuclear radiation after the nuclear power leakage.
h)As a result of the March 2011 earthquake, dangerous radiation levels remain along the coast of Fukushima which is comparable to Chernobyl.
i)In Japan there are more than 50 nuclear power plants, with plans to build more, and this will only worsen the pollution of the rivers and oceans.
j)Since the age of 15, he has suffered from unknown allergies which medicines have not cured.
k)These allergies affected his sleep, concentration and mental health, resulting in suicidal thoughts.
l)Since his arrival in Australia, his health has improved considerably which led him to conclude that the contamination of the environment in Japan was causing his illness.
m)The Japanese government is persecuting citizens through its inactivity and dishonesty regarding the dangers of nuclear power plants and the effects of radiation upon the environment.
n)The government will not do anything to protect him from radiation because Japan relies on nuclear energy.
o)It does not matter where he lives in Japan because agriculture, fish and water have already been affected by radiation and pollution.
p)He does not want to die young or live a long life suffering the effects of radiation.

The Delegate’s decision

On 22 December 2011, the applicant attended an interview with the Delegate.
On 5 January 2012, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention.
The Delegate found that none of the claims fell within any of the Convention grounds as the essential and significant reason for the harm feared.

The Tribunal’s review and decision

On 6 January 2012, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.
The applicant provided further documents in support of his review application.
On 13 January 2012, the Tribunal wrote to the applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 21 February 2012 to give oral evidence and present arguments.
On 21 February 2012, the applicant attended the Tribunal hearing and gave evidence.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The decision of the Tribunal is accurately summarised by counsel for the First Respondent in his written submissions as follows:
“The Tribunal found that the Applicant was not the subject of systematic and discriminatory conduct for any of the five Convention reasons, as required by s 91R(1) of the Migration Act 1958 (the Act). It noted that Japanese government policies to people with allergies and concerning nuclear power and its effects was not discriminatory and applied to everyone in Japan, and there was no evidence that the Applicant would be targeted for a Convention reason. It found that the Applicant would not be forced to ingest contaminated food. It found the conduct of the Japanese government of which he complained was not discriminatory but aimed at governing Japan, and so the harm the Applicant feared was not for a Convention reason: CB 112 [99]. See generally CB 108-113.”

The proceeding before this Court

The applicant was unrepresented before this Court, although had the assistance of a Japanese interpreter.
On 22 May 2012, the applicant attended a directions hearing before me. I explained to the applicant that this Court had no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the Tribunal’s decision is affected by a mistake going to the jurisdiction of the Tribunal. I also explained to the applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court. The applicant confirmed that he wished to continue with the application. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support.
At the directions hearing, the applicant was referred to the Court’s Legal Advice Scheme for free legal advice. The applicant has participated in the Court’s RRT Legal Advice Scheme and received free legal advice. The applicant was also provided with the contact details of legal services providers and interpreting and translation services.
At the commencement of the hearing, the applicant confirmed that he had not filed any amended application, evidence or submissions in support of his application and that he had no further documents to present to the Court this morning in support of his application.
The applicant confirmed that he relied on the grounds contained in an application filed on 3 April 2012 as follows:
“1. No jurisdiction decision
2. Humanitarian grounds (My life will be in danger in my country)
3. Nil assistance received from dep immigration”
Each of the grounds was interpreted for the assistance of the applicant and the applicant was invited to make submissions in support of each of the grounds and in support of the application generally.
The applicant commenced his oral submissions by making the point that he was not a lawyer and had no legal assistance. He said that he had been in detention for nine months, whereas he understood he should have been out in three months.
Following the oral submissions of counsel for the first respondent, the applicant made further submissions. I understood the applicant’s complaint to be that the Tribunal had not understood that he had a political opinion against the government’s nuclear policy. The applicant also said that whilst living in Japan he could not go outside for three years because of the pollution and that he suffered harm, fear and discrimination during those three years. He expressed a wish to stay in Australia.
The Tribunal’s decision record made clear that the Tribunal gave detailed consideration to the applicant’s claims and whether any of them was capable of establishing a fear of persecution occurring by reason of a Convention ground which is the essential and significant reason for the persecution and which involves serious harm and systematic and discriminatory conduct.
The Tribunal accepted that the applicant has concerns about returning to Japan and that the applicant might be seriously harmed by a natural disaster such as an earthquake in the future if he were to return to Japan. The Tribunal was satisfied, on the basis of independent information before it, that the Japanese authorities have taken significant steps to assist those affected by earthquakes and had not seen any evidence that the applicant would be deprived of any such assistance in the future.
The Tribunal gave careful consideration as to whether the applicant was a member of a particular social group that had suffered Convention related persecution.
The Tribunal accepted that the applicant may suffer harm by nuclear fallout and that such harm would be serious and his membership of a group of people with allergies could be the essential and significant reason he could suffer that harm. However, the Tribunal found that any such harm was not discriminatorily aimed at such a social group. The Tribunal made similar findings in relation to a social group deprived of human rights to good quality air, food and water or a social group who objects to living in a society with radiation in the air due to nuclear plants and fears potential cancers.
The Tribunal also accepted that the applicant is opposed to Japan’s reliance on nuclear energy and that he disagrees with the government’s nuclear policies. The Tribunal found there was no evidence to indicate that the applicant would engage in vocal opposition to the government. However, the Tribunal found that even if the applicant was to publicly express his political views on nuclear energy in Japan, country information before it indicated that the Japanese government and laws provide for freedom of speech, there is an independent press, effective judiciary and a functioning democratic system. On the basis of that evidence, the Tribunal found that the applicant would not suffer persecution by reason of any anti-government political opinion that he may hold or seek to express publicly.
Further, the Tribunal considered the applicant’s claim that he would be deprived of his liberty and rights in Japan. However, the Tribunal found there was no evidence to support such an assertion. On the applicant’s own evidence, he is not known to the authorities in Japan and has been educated and employed in Japan in the past.
The Tribunal also considered the applicant’s claim that he would be killed by nuclear energy and the government’s actions if he returned to Japan. However, the Tribunal found such an assertion was not supported by any independent information to suggest that the government in Japan is using nuclear plants as weapons and killing people. The Tribunal found that the impact of any nuclear disaster would affect all Japanese in the area affected. The Tribunal found there was no evidence to suggest that the consequence of any nuclear disaster causing harm to the applicant would be systematic and discriminatory.
The Tribunal also considered the applicant’s claim that he would not be able to eat if returned to Japan as the food and water is contaminated and the government is forcing its citizens to consume contaminated food. However, the Tribunal found that independent information before it made clear that the Japanese government is making significant efforts to avoid the distribution of contaminated food and to protect its citizens from ingesting contaminated food and water.
The Tribunal also considered the applicant’s claim that the government was not able to manage its nuclear waste and that its old power plants are at risk. However, the Tribunal found there was no independent information to support such an assertion and that, even if correct, there is no evidence of any discriminatory targeting of the applicant for a Convention related reason.
The Tribunal considered all of the applicant’s circumstances combined, namely, a person with allergies exacerbated by radiation with an anti-government political opinion and whether such a particular social group exists. However, the Tribunal found that even if such a group existed, there is no evidence that the group would be targeted and suffer harm as a consequence of discriminatory conduct essentially because of the combination of these circumstances.
In relation to the applicant’s claims of a fear of harm of exacerbated allergies, lack of access to clean air, food, water and deprivation of his liberty and rights, the Tribunal was satisfied that any such harm was not because of any discriminatory conduct on the part of the Japanese conduct for any Convention based reason.
It is well accepted that a person fleeing a natural disaster is not a refugee (see Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 and Minister for Immigration and Multicultural Affairs v HajiIbrahim (2000) 204 CLR 1).
The Tribunal identified with particularity the independent country information to which it had regard. The country information to which the Tribunal has regard and the weight it gives that information is a matter for the Tribunal (NAHI v MIMIA [2004] FCAFC 10 and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).
The Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.
A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).
A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).
In the circumstances, the applicant’s complaints do not identify any jurisdictional error on the part of the Tribunal and appear more to be a disagreement with the findings and conclusions of the Tribunal. Such complaints invite merits review which this court cannot undertake (Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

None of the complaints made by the applicant identifies any jurisdictional error on the part of the Tribunal and no jurisdictional error is apparent on the face of the Tribunal’s review or decision record.
The other two complaints by the applicant in the grounds of his application do not disclose any error capable of review by this Court. They remain entirely unparticularised or supported by written or oral submissions.
In the circumstances, the applicant’s oral complaint that the Tribunal had not understood that the applicant had a political opinion against the government’s nuclear policy is not made out. It is clear from the Tribunal’s decision record, as referred to above, that the Tribunal accepted that the applicant may have such a political opinion but was not persuaded that the applicant would suffer discriminatory persecution in Japan for that reason, even if publicly expressed.
The applicant’s complaint that he could not go outside in Japan for three years because of pollution and suffered harm and discrimination during those years is also not made out. There is no evidence before this Court to suggest that the applicant’s claims went beyond those claims considered by the Tribunal, nor did the applicant suggest otherwise. It is plain from the Tribunal’s decision record, that at the heart of affirming the decision under review was its finding that any harm that the applicant may have suffered in the past or may suffer in the future for the reasons claimed, did not amount to discriminatory persecution for a Convention related reason.
As stated above, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.
Accordingly, none of the applicant’s complaints are made out.

Conclusion

A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The Tribunal also put to the applicant independent country information before it and invited the applicant to comment upon it. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date: 3 July 2012