BZAAF v Minister for Immigration & Anor [2010] FMCA 979 (25 November 2010)

Last Updated: 14 December 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BZAAF v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 979

MIGRATION – Review of Migration Review Tribunal decision affirming delegate’s decision to refuse visa application – applicant seeking impermissible merits review.

Migration Act 1958

NAVX v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 287

Applicant:

BZAAF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

BRG 656 of 2010

Judgment of:

Burnett FM

Hearing date:

25 November 2010

Date of Last Submission:

25 November 2010

Delivered at:

Brisbane

Delivered on:

25 November 2010

REPRESENTATION

The Applicant appeared on his own behalf

Counsel for the Respondents:

Ms Kidson

Solicitors for the Respondents:

Clayton Utz

ORDERS

(1) That the application filed 6 July 2010 be dismissed.
(2) That the applicant pay the respondent’s costs of and incidental to the application fixed in the sum of $5,865.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE

BRG 656 of 2010

BZAAF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. The applicant is a citizen of Malaysia who entered Australia on 24 July 2004 as a holder of a tourist Class E, Sub-Class 976 visa. That visa was valid until 24 October 2004. He made an application for a protection visa on 20 January, 2010.
2. On 3 March 2010 a delegate of the first respondent sent a written invitation to him by registered post inviting him to attend for an interview on 17 March, 2010. The applicant did not attend the interview on 17 March, and the delegate decided on that same day to refuse the application.
3. On 19 April 2010 the applicant applied to the Refugee Review Tribunal for review of the delegate’s decision. On 7 May, 2010, the Tribunal wrote to the applicant that pursuant to s.425A of the Migration Act. That correspondence was an invitation to him to appear before the Tribunal to give oral evidence and to present arguments on 4 June, 2010. The applicant did not appear before the Tribunal on that day.
4. Accordingly, the Tribunal determined, pursuant to s.426A of the Migration Act, to make a decision on the review without providing the applicant any further opportunity to appear before it. On 7 June 2010 the Tribunal decided to affirm the delegate’s decision.
5. On 6 July 2010, the applicant then lodged this application for review. In the application, the applicant sought orders:
   1. In the nature of a writ of prohibition to prevent the Minister acting upon the Tribunal’s decision;
   2. An order in the nature of a writ of certiorari seeking that the Tribunal’s decision be set aside; and
   100. costs.
6. The grounds stated in the application were:
   1. The Tribunal had ignored relevant considerations in making its decision;
   2. The Tribunal had not adequately taken into consideration the applicant’s claim in his application for a refugee visa; and
   100. There had been a constructive failure by the Tribunal to exercise its jurisdiction.
7. Concerning the first ground, despite a request from me of the applicant, the applicant has not been able to provide any particulars of the matters that he says were relevant but not taken into account. The applicant’s claims for protection were set out in a typed, unsigned statement. In his statement, he asserted he was an ethnic Chinese, and born in 1974. He said that from 1992 to 1998 he worked as a builder for a construction company. He said that after 1998 he worked as a builder for various employers. He claimed that during his employment in Malaysia, he did not receive a just and fair minimum salary. He said that was because the owners of the various building companies for whom he worked were local Malays. He complained that he argued frequently with his employers about not receiving the same opportunities as local Malays, and that each time he did so, he would be dismissed or terminated from employment. He stated that he could not work for one company for more than three months because he wanted the same wages as local Malay workers. He also complained that some local Malay workers had threatened to kill him.
8. The applicant did not provide any further information or documentation to support these claims. Beyond his initial statement, he did not expand upon the claims included in his application lodged for review with the Tribunal. Nor did he appear before the Tribunal at the hearing and expand upon those matters.
9. The Tribunal observed in its reasons that these complaints were made by the applicant. However, as it noted at paras 30 through to 33, at various parts in those paragraphs of its decision, it did not accept his complaints in respect of these matters. For instance, it noted that in respect of one period of employment, he claimed to have been employed by the same construction company between 1992 and 1998, a period well in excess of three months. Nor did the Tribunal accept that the applicant demanded equal pay and that he was dismissed as a result.
10. Likewise, it did not accept that he was underpaid. In respect of those matters, the Tribunal noted that there was “very limited evidence” before it. In respect of alleged threats made against him by local Malay workers, the Tribunal also rejected his assertions about those matters. Additionally, the Tribunal noted that he provided no other information and no details about the threats. He did not indicate when or by whom the threats were made. Nor did he particularise the circumstances in which the threats were made and whether any action had been carried out.
11. It is plain from the statement made by the applicant that they were the particular matters relied upon by him in support of his application. Each of those matters appears to have been addressed and considered by the Tribunal. I note in passing that from his oral submissions it is plain that what the applicant actually seeks before this court is a merits review, that is to say, he wants this court to review the findings of fact that were made by the Tribunal. It is well settled by high authority that courts, such as this, engaging in judicial review are not permitted to undertake a merits review of the facts. The applicant fails on the first ground of his application.
12. The second ground concerns the Tribunal’s alleged inadequate consideration of the applicant’s claims. Again, what the applicant seeks is for the court to engage in impermissible merits review. That is, notwithstanding s.65 and s.415 of the Migration Act provide that if the Tribunal is not satisfied that the relevant statutory criteria for a protection visa is satisfied, the Tribunal is bound to affirm the delegate’s decision. The onus lies upon the applicant to advance whatever evidence or argument he wishes to advance in support of his contention that he has a well-founded fear of persecution for a Convention reason.
13. I have earlier outlined the history of the applicant’s prosecution of the application. As I have earlier addressed concerning the history of the applicant’s prosecution of his application, and the limited evidence that the applicant placed before the Tribunal, there was insufficient material to justify any other decision by the Tribunal. I make my observations against the background of the remarks made by the Full Court in NAVX v Minister for Immigration & Multicultural and Indigenous Affairs[1], where the court observed:
    • “In assessing the adequacy of these reasons, it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China. Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.”
14. The observations of the court are apposite to the facts before this court in the applicant’s application. Here the material before the Tribunal was so scant and lacking in particularity and provided in the absence of any oral supplementation. It followed that the Tribunal simply had insufficient available to it to be satisfied of the applicant’s assertion of fact, and it rejected them. This matter was open to the Tribunal to find in those terms and no basis has been demonstrated as to the inadequacy of any consideration of the applicant’s claim. This ground fails.
15. The third ground is that there has been a constructive failure by the Tribunal to exercise its jurisdiction. Again, no particulars have been provided of this ground. The Tribunal complied with its statutory obligations in respect of the notice and the hearing, and it was open to it to determine the matter on the information before it pursuant to s.426A, as it did. Again, no error is disclosed and this ground fails.
16. It follows that the application is dismissed.
17. The usual order is that the unsuccessful party pays the successful party’s costs of the application. In this instance, the unsuccessful applicant contends that he has insufficient money to be able to afford to pay costs. While I am mindful of his financial position, that, in my view, is not sufficient to justify a departure from the usual order.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Burnett FM

Date: 13 December 2010

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[1] [2004] FCAFC 287