SZOWP v Minister for Immigration & Anor [2011] FMCA 149 (9 March 2011)

Last Updated: 9 March 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOWP v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 149

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error.

Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 65(1)(b); 91R; 474; pt.8 div.2

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 NAHI v MIMIA [2004] FCAFC 10 VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29 Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 162 ALR 1 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors [1996] HCA 6; (1996) 185 CLR 259

Applicant:

SZOWP

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2760 of 2010

Judgment of:

Emmett FM

Hearing date:

9 March 2011

Date of Last Submission:

9 March 2011

Delivered at:

Sydney

Delivered on:

9 March 2011

REPRESENTATION

The Applicant appeared in person assisted by a Mandarin interpreter

Solicitors for the Respondent:

Ms B Griffin and Mr L Nguyen (Australian Government Solicitors)

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2760 of 2010

SZOWP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 17 November 2010 and handed down on the same day.
2. The applicant claims to be a citizen of Malaysia and of Chinese ethnicity (“the Applicant”).
3. 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

4. The Applicant arrived in Australia on 30 May 2005 having departed legally from Malaysia on a passport issued in his own name and a tourist visa (sub class 976) visa valid until 30 August 2005.
5. On 17 May 2010, the Applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
6. On 14 July 2010, the Delegate refused the Applicant’s application for a protection visa.
7. On 19 August 2010, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
8. On 17 November 2010, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
9. On 21 December 2010, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

10. 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.
11. 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”).
12. 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, 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, is unable or, owing to such fear, is unwilling to return to it.”
13. Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.

The Applicant’s claims

14. The Applicant’s claims are accurately summarised in the Tribunal’s decision record as follows:
    • "The applicant claims that if he returned to Malaysia in the reasonably foreseeable future, he fear[s] that he and his family would suffer racial discrimination, insults and harassment and that his houses would be burnt down. He claims to fear persecution from the government and local Muslims.
    • He claims that prior to 2005 he ran a successful restaurant in the Pahang area. After a Muslim employee was fired, he claims that the ex-employee wanted revenge and brought local Muslims to threaten and blackmail him. He said he was forced to close down his business and move to Australia. The applicant claims that he suspected the ex-employee was involved in stealing goods from the shop but when he reported the incident to the police nothing was done. He claims that the ex-employee and other local Muslims lined up outside his house and called Chinese people “pigs”. He claims that he offended local councillors when asking why the police did not follow up his claims. He claims that there is discrimination against Chinese in Malaysia which he has experienced, in that Chinese people are served last when shopping and have inferior houses and cars. He claims he could not move to another area as the political situation is unstable."

The Delegate’s decision

15. On 21 June 2010 the Applicant was invited to attend an interview with the Delegate on 8 July 2010. The Applicant did not attend the interview.
16. On 14 July 2010, 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.
17. The Delegate noted that due to the Applicant’s non attendance at the scheduled interview it was unable to test the Applicant’s claims or investigate whether there was a Convention nexus. The Delegate noted that the Applicant’s claims did not address the delay in applying for the Protection visa. The Delegate noted that while a delay in seeking protection is not conclusive by itself, it is reasonable to consider that such a delay indicates that the Applicant’s claimed fear is not well founded.

The Tribunal’s review and decision

18. On 19 August 2010, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
19. The Applicant provided no further documents in support of his review application.
20. On 13 September 2010, 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 28 October 2010 to give oral evidence and present arguments.
21. On 28 October 2010, the Applicant attended the Tribunal hearing and gave evidence.
22. 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.
23. The Tribunal found the Applicant was not a person to whom Australia has protection obligations under the Refugees Conventions and does not satisfy the criterion set out in s.36(2)(a) for a protection visa.
24. The decision of the Tribunal is accurately summarised by counsel/the solicitor for the First Respondent in her written submissions as follows:
    • “The Tribunal's decision
    • 4. In affirming the decision under review, the Tribunal accepted that the applicant had had a restaurant in Pahang, that he had been harassed by an ex-employee and other local Muslims after firing the employee and that the applicant may have offended local councillors.
    • 5. However, the Tribunal did not accept that the applicant and his family would face harm from the ex-employee, other local Muslims, or offended local councillors as it was not plausible they would seek to harm the applicant five years after the incidents took place and in light of independent information regarding the treatment of ethnic Chinese in Malaysia and, in particular, Pahang.
    • 6. Further, the Tribunal did not accept that the applicant would have waited five years to apply for a protection visa had he genuinely feared serious harm upon return to Malaysia and did not accept the applicant's explanation for why he did not do so earlier.
    • 7. The Tribunal also accepted that there is institutionalised discrimination against Chinese Malaysians due to affirmative action policies in land ownership, employment and education. However, the Tribunal did not consider such discrimination constituted serious harm, in light of the definition in s 91R of the Migration Act 1958 (Cth)("the Act") and as considered in Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 and Minister for Immigration and Multicultural and Affairs v Haji Ibrahim [2000] HCA 55; (2000) 204 CLR 1.
    • 8. The Tribunal therefore concluded that the applicant did not have a well-founded fear of persecution for a Convention reason in Malaysia and therefore did not satisfy the criteria for a protection visa.”

The proceeding before this Court

25. The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter.
26. On 2 February 2011, 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.
27. 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 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 in documents headed in is own language.
28. 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.
29. 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.
30. The application for judicial review does not identify any orders sought by the Applicant by way of final relief. Under the sub-heading “Orders sought by Applicant”, the Applicant stated the following:
    • “1. I disagree with Immigration and RRT’s decision. They did not consider that I will be in danger if I return.
    • 2. RRT did not consider that I will be persecuted and in big trouble if I return.
    • 3. RRT member questioned me at hearing made me feel very up sad. They never trusted me and I do not think they had the right attitude to my application. RRT should grant my application.”
31. Under the sub-heading “The Grounds of the application are”, the Applicant stated as follows:
    • “1. I am a Malaysia citizen and Malaysia’s ethnic Chinese who has been discriminated by Malaysian government.
    • 2. I can not go back to Malaysia since I am very scared to be discriminated and I cannot make a living in my country”
32. Assuming that all those paragraphs referred to above are intended to encapsulate the Applicant’s complaints about the Tribunal hearing, none were supported by particulars, evidence, or submissions, and none on their face discloses error capable of review by this Court.
33. The Applicant was invited to say whatever he wished in support of his application. The Applicant responded that:
    • (i) the Tribunal had not considered his assertion that he did not know about the protection visa application process because people in China are not highly educated; and
    • (ii) if he was to return to Malaysia and it was known that he had applied for a protection visa application, revenge would have been taken upon him because he is Chinese, and the Tribunal had not thought of that.
34. In relation to (i) above, as is stated above, the Applicant arrived in Australia on 30 May 2005, from Malaysia, on a tourist visa which expired on 30 August 2005. It was not until 17 May 2010 that the Applicant lodged an application for a protection visa and was granted a bridging visa.
35. To the extent that the Applicant complains that the Tribunal did not consider his explanation for his delay in applying for a protection visa, the Tribunal’s decision record does not support such an assertion. The Tribunal’s decision record states that the Applicant was asked why he remained in Australia illegally since 2005 and noted the Applicant’s response that his education level was low and he did not have access to information at that time. The Tribunal noted that he learnt from the newspaper about bridging visas, and so he applied. He said that he did not have knowledge about refugees, but as he remained in Australia, he became aware of these issues. The Tribunal noted that the Applicant said that he thought that the Malaysian actions were “unacceptable”
36. In rejecting the Applicant’s claims of a well founded fear of persecution in Malaysia for any Convention related reason, the Tribunal did not accept as satisfactory the Applicant’s explanations for his delay in applying for a protection visa. The Tribunal found that there are many Malaysians living in Australia and that if he had a genuine fear, he would have investigated how he could have remained in Australia.
37. Clearly, the Tribunal considered the Applicant’s explanations but was not ultimately persuaded by them.
38. Those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave.
39. In relation to (ii) above, the Applicant asserted this morning that the Tribunal had not thought of the fact that he would be harmed if he was to return to Malaysia and it was known he had applied for a protection visa. However, a fair reading of the Tribunal’s decision record and the Applicant’s material in support of his protection visa application do not suggest that any such claim was squarely raised by the Applicant. In such circumstances, there was no obligation on the Tribunal to consider a claim not squarely raised on the material before the Tribunal (see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [58] and [60]).
40. In any event, having regard to the fact that more than 5 years had passed since the Applicant had arrived in Australia, and having regard to the country information before it, the Tribunal was not satisfied that the Applicant faced a real chance of harm if he was to return to Malaysia.
41. The Tribunal found that the country information before it did not reveal incidences of violence by authorities against Chinese Malaysians. The Tribunal’s decision record makes clear that the Tribunal put to the Applicant that independent country information indicated there was little violence against ethnic Chinese in Malaysia. The Tribunal put to the Applicant that independent country information also indicated that there is an active and inclusive atmosphere for Pahangs’s ethnic Chinese minority. The Tribunal invited the Applicant to comment and noted his responses.
42. The Tribunal found that although sources revealed that the Police in Malaysia may not always be active where racial discrimination is concerned, there is little evidence to suggest that state protection would not be available if there were threats or actual violence against individuals.
43. The Tribunal accepted that the Applicant may have offended local councillors. However, the Tribunal was not satisfied that the Applicant faced any real chance of serious harm against him in the reasonably foreseeable future, given the amount of time that had passed and the fact that country information did not reveal incidences of violence by the authorities against Chinese Malaysians.
44. The Tribunal also found that “the major recognised country sources in regard to Malaysia express little or no concern about the treatment of Malaysia’s ethnic Chinese population an there have been no significant reports of violence or intimidation against Malay Chinese in recent years”
45. It is a matter for the Tribunal the country information to which it has regard, and the weight it gives that information (NAHI v MIMIA [2004] FCAFC 10 and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).
46. The Tribunal did not accept that there was real chance of serious harm to the Applicant in Malaysia in the reasonably foreseeable future either from the Government or local Muslims. The Tribunal noted that the Applicant’s claims referred to incidents which took place in 2005 in which an ex-employee and other local Muslims wished to take revenge on him. The Tribunal found that it was not plausible that those individuals would still wish to harm him if he was to return to Pahang in the future.
47. Ultimately, whilst the Tribunal accepted the Applicant’s claims of past harassment, it was not satisfied that the Applicant’s claimed fear of Convention related persecution if he were to return to Malaysia was well founded.
48. As stated above, the Tribunal’s findings were open to it on the materials and evidence before it and for the reasons it gave.
49. Otherwise, the Applicant’s complaints appear to be no more than 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] HCA 14; (1999) 162 ALR 1 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors [1996] HCA 6; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

Conclusion

50. 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.
51. 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.
52. 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.
53. The proceeding before this Court should be dismissed with costs.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:

Date: 9 March 2011