Goo v Minister for Immigration and Multicultural Affairs

[2000] FCA 853

FEDERAL COURT OF AUSTRALIA

Goo v Minister for Immigration & Multicultural Affairs [2000] FCA 853

MEEYUNG GOO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 1456 of 1999

MADGWICK
9 JUNE 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1456 of 1999

BETWEEN:	MEEYUNG GOO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	9 JUNE 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant is to pay the respondent’s costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1456 OF 1999

BETWEEN:	MEEYUNG GOO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	9 JUNE 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:

1. The applicant seeks judicial review on the limited bases available to this Court under the Migration Act 1958 (Cth) (“the Act”) of a decision of the Refugee Review Tribunal by which that Tribunal declined to set aside or vary the decision of a delegate of the respondent Minister, not to grant a protection visa. The Tribunal's decision in terms affirmed the decision of the delegate.

2. The applicant is a Malaysian national of Chinese ethnicity in her twenties.  She arrived in Australia in March 1999 and within a few weeks applied for a protection visa.  On 20 May 1999, the Minister's delegate refused that application and the applicant applied to the Refugee Review Tribunal for review of the delegate's decision.

3. As it was required to do, the Tribunal wrote to the applicant on 1 October 1999 to tell her that the Tribunal was not prepared to make a decision in her favour on the papers and advising her to attend a hearing on 3 November 1999 so that she might give oral evidence and present arguments in support of her application.  She had engaged the services of a migration agent.  A copy of the letter was also sent to that agent.  No response was received to the letter.  The applicant did not attend the hearing of the Tribunal.  The material that the

   
   
   

   applicant had placed before the delegate was extremely limited.  A short statement had been submitted with the application for the protection visa.

4. The matters referred to, as the Tribunal correctly perceived, suggested that she was persecuted for reasons of her race or ethnicity.  The claim was that she had experienced severe discrimination.  Even at school she had been shunned by her predominantly Muslim, ethnically Malay, schoolmates because of her ethnic background and religion.  Participation in camping and other school outings was "very inconvenient because of the diet", more seriously, she also felt hostility from the teacher.  She was accused by schoolmates, in effect, of smelling of pork. 

5. Upon leaving school with "fairly good test results", she was unable to gain entrance to any of the institutions of higher learning in Malaysia and, looking for work, she had the impression that local Malaysians of less competency than herself were preferred for employment.  Consequently it was very difficult for her to obtain employment and, upon her parent's advice, she had come to Australia to avoid this discrimination and hardship.  She enlarged briefly but persuasively on the racial discrimination that exists in Malaysia. 

6. The Tribunal member referred to the matters to which I have mentioned.  It noted that she was a Buddhist, that her parents and brothers are resident in Malaysia and that for three years after leaving school she had been employed as a clerk.  She had visited countries bordering or close to Malaysia on several occasions.  Her Australian visa had been granted in November 1998. 

7. The Tribunal also had regard to independent information and extracts from a United States State Department "Country Report" about human rights practices in Malaysia.  According to that report the Malaysian Constitution provides for freedom of religion and religious minorities which include large Hindu, Buddhist, Sikh and Christian communities. Although there are some restrictions on it, Islamic law has not been imposed "beyond the Muslim community."  Racially discriminatory economic programs are treated in that report as an instance of positive discrimination in favour of the economic position of the Malay majority which it is said "remains poorer on average than the Chinese minority."  Apparently the discriminatory programs and policies operate equally against all non-Malays and there was material before the Tribunal, as material that had been before the Minister's delegate, to indicate that Chinese political leaders as well as the government considered that these programs had been instrumental in achieving "ethnic harmony" and political stability after major race riots in 1969, to which the applicant referred in her remarks before me. 

8. The Tribunal accepted the applicant's claim of discrimination during her school days but was not satisfied that that discrimination amounted to persecution in a degree serious enough to be called persecution for the purposes of the relevant international convention which defines refugees, which definition is involved as a criterion in whether an applicant should have a protection visa.  As to the applicant's claims of discrimination in relation to tertiary education and career opportunities, again the Tribunal accepted the applicant's assertions, but noted that the applicant did not appear in the result to have been significantly disadvantaged in an economic sense.  For this reason the Tribunal was not satisfied that such discrimination as the applicant had suffered was comparatively serious enough to amount to persecution.

9. The Tribunal also considered that there was no evidence that the applicant would be persecuted for a Convention reason in the foreseeable future by the authorities or by anybody else if she returned to Malaysia.  The Tribunal made it clear that it had looked at the broader facts of discrimination in favour of Malays than those specifically adverted to in the applicant's brief statement that accompanied her application for the protection visa.  The Tribunal said, "the independent information quoted above suggests that there is in fact discrimination in favour of Malays in such matters as education and career opportunities" and in its conclusion said that, "having considered the evidence as a whole", it was not satisfied that Australia owed the applicant any protection obligation under the Convention.

10. Before this Court the applicant was self represented and spoke through an interpreter of the Mandarin language. She filed no written submissions as she had been directed to do and the oral submissions that she made addressed no legal question at all. In her application for an order of review in this Court the applicant had merely repeated the substance of her factual claims; no attempt was made in the application to identify any relevant ground of review under s 476 of the Act. Nor was any such ground identified orally by the applicant.

11. It is not the job of this Court to review the factual findings or the merits of the Tribunal's decision.  The Court can only intervene if particular kinds of legal and I assume, procedural error, are shown.  There was material before the Tribunal to support the findings made and I do not discern that the Tribunal failed to deal with the matter properly.  I can see no basis for legal criticism of the Tribunal's decision.  Accordingly the application will be dismissed.  The consequence is that the decision of the Tribunal will stand.  The applicant is ordered to pay the respondent's costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             9 June 2000

The applicant appeared in person.
Solicitor for the Respondent:	A Markus of the Australian Government Solicitor
Date of Hearing:	9 June 2000
Date of Judgment:	9 June 2000