SZIQS v Minister for Immigration & Multicultural Affairs [2007] FCA 158 (20 February 2007)

Last Updated: 21 February 2007

FEDERAL COURT OF AUSTRALIA

SZIQS v Minister for Immigration & Multicultural Affairs
[2007] FCA 158

SZIQS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 1992 OF 2006

CONTI J
20 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1992 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZIQS Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	CONTI J
DATE OF ORDER:	14 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the first respondent’s costs of 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	NSD 1992 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZIQS Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	CONTI J
DATE:	20 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal against the judgment of Federal Magistrate Scarlett, delivered on 29 September 2006, which dismissed an application for judicial review of the decision of the Refugee Review Tribunal (‘the Tribunal’) given on 6 March 2006 and handed down on 23 March 2006. The Tribunal had affirmed the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (as then designated), made on 20 December 2005, to refuse the grant of a protection visa to the appellant. The visa application was made on 30 November 2005, following the appellant’s arrival in Australia on 2 October 2005.

The Tribunal’s decision

2 The appellant is a citizen of Malaysia and is of Tamil ethnicity and Hindu religion. Before the Tribunal the appellant claimed to fear persecution by Muslims in Malaysia upon the basis of his ethnicity and religion. The appellant claimed in that regard to have been associated with many Hindu organisations and that he had been threatened on that account, but that from his childhood, he had been initially protected by a friend of his father. However, the appellant further claimed that his father’s friend had ultimately died, and that thereafter, Muslims attacked his hairdressing shop and extorted money from him. He further claimed, in particular, that on separate occasions his life had been threatened by Muslim youths in the context of stone throwing and harassment for instance in his shop premises. The appellant also contended that although he had twice approached the police, no assistance had been forthcoming. Instead the police had counselled him to ‘forgive and forget’. Consequently, the appellant came to Australia upon the basis, so he claimed, that he feared for his life.

3 The Tribunal accepted that the appellant was a Hindu of Tamil ethnicity but did not accept that the appellant had a well-founded fear of persecution for a Convention reason. In the course of its reasons for decision, the Tribunal accepted nevertheless the claims of harassment and stone throwing by Muslim youths. However, the Tribunal considered that so much did not amount to serious harm in a Convention sense, but constituted something merely ‘akin to minor discrimination and harassment’. On the basis of the context in which the appellant described the harassment to which he was subjected, the Tribunal did not accept that threats were made against the appellant’s life or members of his family. The Tribunal did not accept moreover that the appellant sought police protection, or that he faced harm in the reasonably foreseeable future. In that regard, the Tribunal drew attention to country information concerning the amicable relationship between different ethnic and racial groups in Malaysia. In relation to the claims that the appellant was actually forced out of business, the Tribunal considered the evidence to have been unconvincing.

4 The Tribunal therefore concluded that there was no real chance of harm by reason of the appellant’s Tamil ethnicity or Hindu religion and that the appellant did not have a well-founded fear of persecution for a Convention reason on his return to Malaysia.

The Federal Magistrate’s decision below

5 In the proceedings before Federal Magistrate Scarlett, the appellant relied on an amended application filed on 27 June 2006, which raised various claims including, first, that the Tribunal made a jurisdictional error by failing to consider relevant material, and further that the Tribunal misdirected itself as to the nature of its role and responsibilities by ignoring the possibility of persecution. The appellant further contended that the Tribunal did not comply with s 424A of the Migration Act 1958 (Cth) (‘the Act’), and additionally, that the Tribunal failed to apply ss 36(2) and 65(1) of the Act and the Refugees Convention as amended by the Refugees Protocol. During the course of the hearing, the appellant requested an adjournment for a number of days in order to prepare further submissions.

6 The Federal Magistrate refused the application for an adjournment on the basis that the appellant had reasonable notice of the final hearing, being notice of about four months, and further that the appellant had sought to utilise the Tribunal’s legal advice scheme. His Honour further found that the Tribunal did consider the relevant material, and as a consequence duly assessed the appellant’s claims made as a Tamil and follower of the Hindu faith. Moreover the Tribunal addressed those claims individually as well as collectively. In the result his Honour was of the view that the Tribunal’s finding that the harm to the appellant amounted to minor discrimination was one of fact for the administrative decision-maker to determine.

7 In relation to the grounds for review upon the basis of a breach of s 424A of the Act, his Honour considered that the country information relied on by the Tribunal, and the information provided by the appellant to the Tribunal, fell within the scope of the exceptions set out in s 424A(3) of the Act. Moreover his Honour considered that the Tribunal’s credibility findings constituted findings of fact, and that ‘there was evidence upon which the Tribunal could have made that finding’.

The appeal to the Federal Court

8 The notice of appeal to the Federal Court, filed by the appellant on 13 October 2006, asserted essentially that the Tribunal erred in failing to consider all of the claims and resolve all of the issues put forward by the appellant. However it is tolerably clear that the complaints made by way of grounds of appeal constituted nothing more in substance and reality than an attempted re-agitation of the merits of the Tribunal’s decision. At the hearing of the present appeal, the appellant did not seek to advance any submissions of substance beyond what had been set out in his notice of appeal.

9 In my opinion, the findings and conclusions of the Federal Magistrate were not relevantly or significantly challenged by the framework or content of the notice of appeal, nor by what constituted in reality nothing more than the appellant’s token appearance in person at the hearing of the appeal, polite though his appearance happened to have been.

10 The appeal must therefore be dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated: 20 February 2007

The Appellant appeared in person
Counsel for the First Respondent:	Ms V McWilliam
Solicitor for the First Respondent:	DLA Phillips Fox Lawyers
Date of Hearing:	14 February 2007
Date of Judgment:	20 February 2007