Jin v Minister for Immigration & Multicultural Affairs [2002] FCAFC 245

FEDERAL COURT OF AUSTRALIA

Jin v Minister for Immigration & Multicultural Affairs

[2002] FCAFC 245

MIGRATION – application for a protection visa – South Korean national – whether appellant has a well-founded fear of persecution by reason of her political opinion –appellant's personal circumstances and health not relevant to the grant or refusal of a protection visa

Migration Act 1958 (Cth), s 476(1) WEI-SOON JIN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS No N 573 of 2001 SPENDER, R.D. NICHOLSON & NORTH JJ 16 AUGUST 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 573 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: WEI-SOON JIN

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES: SPENDER, R.D. NICHOLSON, & NORTH JJ

DATE OF ORDER: 16 AUGUST 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of and incidental to the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 573 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: WEI-SOON JIN

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES: SPENDER, R.D. NICHOLSON & NORTH JJ

DATE: 16 AUGUST 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT THE COURT: 1 This is an appeal from a judgment of Beaumont J, given on 27 April 2001. The primary judge dismissed an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 15 February 2001. The Tribunal affirmed a decision made by a delegate of the Minister for Immigration and Multicultural Affairs ("the respondent") on 19 December 2000, to reject the application of Ms Jin, the appellant, for the grant of a protection visa. 2 Ms Jin is a South Korean national. She arrived in Australia on 9 October 1996, on a tourist visa granted to her by the Australian authorities in South Korea. Having remained in Australia illegally for some years, in May 2000, she was arrested and charged with credit card fraud, convicted and sentenced to a term of imprisonment. On 21 November 2000, at the expiration of her term of imprisonment, she was transferred to immigration detention. On 27 November 2000 she lodged her application for a protection visa. 3 Ms Jin claimed in support of her protection visa application that, owing to well-founded fear of being persecuted in South Korea for reasons of her political opinion, she was both outside that country and unwilling to avail herself of that country's protection. 4 The Tribunal accepted that, in September 1996, Ms Jin had been involved in a series of workers' protests at a relatively small factory at which she had worked in Seoul and that, in light of the resulting disruption and property damage, the police had become involved. According to the Tribunal, those circumstances made it plausible that the police had wanted to find Ms Jin at that time, either to question or to warn her. However, Ms Jin gave oral evidence to the Tribunal to the effect that no charges had been preferred or warrant issued at that time and that she had not been a "wanted" person in any official sense. The Tribunal observed that that evidence was consistent with Ms Jin's ability to leave South Korea lawfully around that time, notwithstanding the existence of measures in place to prevent the departure from South Korea of persons wanted by the police. 5 The Tribunal next expressed the view that the absence of any reports or claims of further police enquiries about Ms Jin in the four years preceding its decision strongly suggested that there was no warrant for her arrest outstanding in South Korea and no continuing police interest in her. 6 Then, the Tribunal turned to country information supplied to it on Ms Jin's behalf. The information was claimed to demonstrate that she was likely to be imprisoned in extremely harsh conditions for a Convention reason on her return to South Korea. The Tribunal was not persuaded by the material, relying instead on more recent country information which satisfied it that, at the time of its decision, South Korea was a functioning democracy in which dissenting views could be freely expressed and non-violent protests and demonstrations accommodated. The Tribunal observed that since early 1998, Kim Dae Jung, a prominent former dissident and opposition leader, had been President of the country. The Tribunal also expressed the view, based on the country information, that a person who organised or participated in a strike or demonstration at a private workplace would not, for that reason alone, be arrested or sought by the police now. Accordingly, the Tribunal was satisfied that Ms Jin did not face any real chance of police investigation or arrest on her return to South Korea. 7 The Tribunal then considered what the position would be if that conclusion was wrong. It was also satisfied that any police interest in Ms Jin would only be in relation to the damage which had been caused to her employer's property in 1996. Such interest would not amount to persecution for a Convention reason, but would instead amount to the non-discriminatory application to her of the ordinary criminal law. By that reasoning the Tribunal concluded that Ms Jin did not have a well-founded fear of being persecuted for political reasons in South Korea. 8 On 20 February 2001 Ms Jin lodged her application to the Court for a review of the Tribunal's decision. The application did not identify any grounds, but indicated that the details would be supplied at a later date. However, as the primary judge pointed out in his reasons for judgment, no such details were ever supplied. Nor, as the primary judge also pointed out, did Ms Jin make any submissions in support of her application at the oral hearing, although she was invited to do so. It was therefore inevitable that the primary judge would dismiss the application. 9 In her notice of appeal to the Court from the judgment of the primary judge, Ms Jin did, contrary to her conduct regarding her application for review of the Tribunal's decision, state what purported to be a ground of appeal. That purported ground of appeal was as follows: "The last demonstration was in October 1996. More then [sic] 50 workers in our factory participated in this demonstration. When I arrived Australia, I heard from my friend that the police authorities is chasing me in Korea. While here was working in the Silverwater gaol and was electrocuted. However I was not able to contact any of my family as they have all desapeard [sic]. Together because of my poor health as a result of the electrocution, and as there is no one look after me, I am appealing on humanitarian ground." 10 The first three sentences are the same as three of the sentences appearing in Ms Jin's protection visa application under the heading "Why I left my country". They express the factual basis of the claim before the Tribunal. In other words, the notice of appeal reasserts the original basis for the claimed fear of persecution. As outlined earlier in these reasons, the Tribunal dealt with this basis. The notice of appeal might, in the circumstances, be taken as asserting that the primary judge erred in failing to find that the Tribunal was wrong in holding that there was no continuing police interest in Ms Jin. The primary judge did not deal with this argument because, as explained, Ms Jin did not elaborate her case before the primary judge. Nevertheless, it is convenient for us to deal with the argument. 11 Viewed in this way, the first three sentences of the notice of appeal contend that the Tribunal made an error of fact. Ms Jin suggests that the Tribunal should have found that she was of continuing interest to the police. 12 The grounds on which the Court can review the decision of the Tribunal are set out in s 476(1) of the Migration Act 1958 (Cth) as applied at the time of the decision. That section does not allow the Court to intervene where the appellant takes issue with the Tribunal's finding of fact. It is for the Tribunal not the Court to evaluate the evidence. Consequently, no ground of review is made out based on the first three sentences of the notice of appeal. 13 The remaining part of the notice of appeal claims humanitarian assistance by reason of Ms Jin's personal circumstances. This is not a matter for the Court. It does not relate to the rejection of the application for a protection visa. 14 When the appeal was called on, on 7 March 2002, Ms Jin raised two concerns – first, she was not in a financial position to hire a solicitor, and second, she had experienced severe medical problems. 15 He medical problems had been the subject of the following observation by the Tribunal at 13: "The Tribunal noted with concern the evidence of the Applicant (whom it had found to be a generally credible witness) concerning the effects of an electric shock sustained from machinery while she was in prison in Australia in 2000. The Applicant's evidence at hearing is that she still suffers severe physiological and physical effects from the injury (she complained of discomfort during the hearing), and that although she is receiving medication she has not been able to obtain a specialist medical diagnosis or treatment while in Immigration detention. These are not matters for this Tribunal but may raise issues concerning the duty of care owed by Australian authorities to the Applicant while in custody, including in relation to her injury while in prison and the adequacy of medical diagnosis and treatment while in Immigration detention." 16 This Court raised the possibility that there may have been a failure to provide proper medical attention to Ms Jin while she was in immigration detention, and that any such failure may have had some consequences in the proceedings before the Tribunal. In response, the respondent sought time to explore the factual basis of these concerns. The Court urged Ms Jin to obtain legal assistance on this issue. The hearing was adjourned until 16 April 2002 to allow these matters to be addressed. 17 On 5 April 2002, Mr Hardman, a solicitor engaged on behalf of the respondent, swore an affidavit which included reference to a specialist medical report from Dr Clauston dated 27 April 2001. The report was inconclusive. It ended by saying: "It is impossible to assess the prognosis of this lady's pain until she has been adequately investigated." 18 Ms Jin also filed some documents on the question of her medical condition which included a report by Dr Kim dated 25 March 2002. That report included the following: 'She was then moved to Villawood Detention Centre in Nov.2000. She continued to having pain in the left arm and/neck and the headache, back pain along with insomnia, dizziness and episodes of involuntary micturition/incontinence, requiring sedatives, analgesics, sleeping pills and antidepressants. A few attempts had been made to retrieve her medical condition at the Villawood Detention Centre and to talk to her medical officer Dr. R. Greenwood had been fruitless without any return correspondence. Currently she is still experiencing pain in the neck, left arm, lower back, left leg, and urinary incontinence, dizziness, fainting and collapses with loss of consciousness which often require trip to hospitals for further management. She suffers from anxiety depression and insomnia. She is taking analgesics (Panadeine forte), sedatives (Ducene), antidepressants (Lovan/Prothiaden). In particular she bitterly of lack of sleep/insomnia for which she takes sedatives and sleeping pills which in turn make her very drowsy at night and the next morning and quite often cause giddiness and falls. Although not diabetic she occasionally showed hypoglycaemia which also causes fainting spells and collapses." 19 The appeal came on for further hearing on 16 April 2002. Ms Jin had not obtained legal assistance despite information provided to her after the last hearing of the appeal by the respondent as to the various sources of such assistance. In light of the material filed after 7 March 2002 the Court determined to direct that Ms Jin be provided with pro bono legal assistance and to adjourn the further hearing of the appeal until 15 August 2002. On 12 June 2002, this assistance was provided. In a letter to a registrar of the Court, counsel who saw Ms Jin to provide pro bono legal assistance wrote: "Today I saw Wei-Soon Jin in conference from 2 pm to 3:45 pm with a Korean interpreter. We discussed her migration status, whether she has a compensation claim against the State of New South Wales or another party, and the relationship between her migration status and a compensation claim. I was satisfied that Ms Jin understood the matters we discussed and the advice I gave." 20 On 15 August 2002 the appeal came on for hearing in Sydney. Justice Spender presided in Sydney and Justices Nicholson and North participated by video-link from Perth and Melbourne respectively. The hearing commenced as scheduled at 11.00 am EST. Ms Jin did not appear in court. Consequently, the Court made orders dismissing the appeal for want of prosecution. 21 It became known shortly afterwards that Ms Jin had been in the court building at 11.00 am, but not at the required courtroom. The Court therefore reconvened at 12.15 pm. In the circumstances the previous orders were vacated. 22 Ms Jin, through an interpreter, then said that she was very sick and does not have a "medical card" to get treatment. She wished to obtain a "medical card". Ms Jin then said that she did not wish to say anything further. 23 Although we understand Ms Jin's concern for her health, despite every endeavour by the Court to ensure that she has obtained the necessary assistance, Ms Jin has made no submission and put no material to the Court which bears on the correctness of the decision of the primary judge. The appeal must therefore be dismissed with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate: Dated: 16 August 2002

For the Appellant: The appellant appeared in person

Counsel for the Respondent: Mr J Smith

Solicitor for the Respondent: Clayton Utz

Dates of Hearing: 7 March 2002, 16 April 2002, 15 August 2002

Date of Judgment: 16 August 2002