Beh v Minister for Immigration and Multicultural Affairs

[2001] FCA 1054

FEDERAL COURT OF AUSTRALIA

Beh v Minister for Immigration & Multicultural Affairs [2001] FCA 1054

POH HAI BEH v
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 1239 OF 2000

TAMBERLIN J
SYDNEY
30 JULY 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1239 OF 2000

BETWEEN:	POH HAI BEH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	30 JULY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The application is dismissed with costs.

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 1239 OF 2000

BETWEEN:	POH HAI BEH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	30 JULY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal (“the RRT”).  It raises two grounds; namely, (i) that the decision was induced or affected by the actual bias of the officer, and (ii) that there was no evidence or other materials to justify the making of the decision. 

2. The applicant is a citizen of Malaysia who arrived in Australia on 23 April 2000.  On 28 April 2000, he lodged an application for a protection visa and, on 9 May, a delegate of the Minister for Immigration and Multicultural Affairs refused the visa.  On 8 June 2000, the applicant applied for review of that decision.

3. The applicant did not appear before the RRT and the circumstances of his notification are adverted to on pages 4 and 5 of the decision and reasons of the RRT.  I am satisfied, having regard to the address for service and residential address on the application for an order of review and to the material that was before the RRT, that the provisions of the Act relating to notification of the hearing date both before the RRT and before this Court were complied with.

4. The applicant’s case before the RRT was that if he is returned to Malaysia he will be subjected to persecution within the meaning of the Refugees Convention as amended by the Refugees Protocol on the basis of his political opinion.  The background circumstances which were relied on by the RRT are set out in the decision under review and I will not repeat them here.  In considering the application, the RRT pointed out that the applicant’s claims were “so general and lacking in detail” to such an extent that it could not be persuaded that the case sought to be made had been established. 

5. The decision-maker referred to the claims by the applicant and concluded that no sufficient details had been given as to when and where alleged political activities, speeches, and debates took place or precisely how the applicant was involved.  The RRT was not satisfied that the applicant participated in political activities, speeches and debates as claimed.  Reference was made to a warning which the applicant had received from local police officers but the RRT considered that no details were given and it therefore could not be satisfied that he received the warning claimed.

6. The applicant gave no details as to any “investigations” that were conducted in relation to him.  The RRT was not satisfied that the applicant had a political profile that would result in investigations being carried out by the Malaysian authorities or that he would attract the adverse interest of the Malaysian authorities.  Accordingly, the RRT found that the applicant had not satisfied it that he had a well founded fear of Convention related persecution. 

7. The second matter relied on by the applicant below was a claim that persons of Chinese ethnicity are discriminated against in Malaysia, in their work and in their daily lives.  In relation to this claim, the RRT accepted that there was evidence of discrimination in Malaysia but pointed out that the question of whether such discrimination amounts to persecution is one of fact and degree.  The decision-maker referred to material in a 1999 Country Report on Human Rights Practices in Malaysia dated 25 February 2000, released by the US Department of State, which states that the Malaysian Government implements extensive preferential programs designed to boost the economic position of the Malay majority.  To this extent, it was accepted by the authors of the Country Report that preferential programs and policies designed to boost the economic position of the Malay majority may limit opportunities for non-Malays in relation to higher education, government employment, business permits and licences, and the ownership of land.  This material was before the RRT and it is quoted immediately before the decision-maker embarked on a statement of findings and reasons.  Because it is a question of fact and degree whether discrimination is sufficient to amount to persecution, it is a matter for determination by the decision-maker and a factual error in relation to it, in circumstances such as the present, does not amount to a reviewable error.

8. I am not satisfied that there is any reviewable error in the decision and I therefore conclude that there is no ground for review.

9. In relation to the two specific grounds raised on this application, namely bias and the absence of any evidence to justify the making of the decision, I am not satisfied on the material before me that either of these grounds has been made out.  There is nothing in the material or in the reasons for decision which indicates any bias, either actual or apparent.  As mentioned above, there was evidence before the RRT as to discrimination, but it was open for the decision-maker to reach the conclusion set out in the reasons.

10. I dismiss the application 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 Tamberlin.

Associate:

Dated:             31 August 2001

Applicant appeared in person
Counsel for the Respondent:	Mr Robert Beech-Jones
Solicitor for the Respondent:	Ms Belinda Abey Clayton Utz
Date of Hearing:	30 July 2001
Date of Judgment:	30 July 2001