Liew v Minister for Immigration and Multicultural Affairs

[2000] FCA 497

FEDERAL COURT OF AUSTRALIA

Liew v Minister for Immigration and Multicultural Affairs [2000] FCA 497

IMMIGRATION – no question of principle.

THIAN MING LIEW V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NO. N 13 OF 2000

JUDGE:         BEAUMONT J
DATE:           7 APRIL 2000
PLACE:         SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 13 OF 2000

BETWEEN:	THIAN MING LIEW APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	BEAUMONT J
DATE OF ORDER:	7 April 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Application 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 13 OF 2000

BETWEEN:	THIAN MING LIEW APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	BEAUMONT J
DATE:	7 April 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J:

1. This is an application for an order of review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 8 December 1999 (Tribunal Member Patricia Leehy) affirming a decision of the Delegate of the Minister to refuse to grant a protection visa. 

2. The relevant criterion for the grant of such a visa at the time of the decision (i.e. 7 June 1999) was that the decision maker was satisfied that the applicant was a person to whom Australia had protection obligations under the 1951 Convention relating to the Status of Refugees, as amended by the 1967 protocol.

3. By article 1A(2) of the Convention a refugee is relevantly defined as a person who:

   “… owing to well founded fear of being persecuted for reasons of race ... is outside the country of [her] nationality and is unable or, owing to such fear, is unwilling to avail [herself] of the protection of that country….”

4. The meaning and operation of this provision is now well settled by the course of the High Court authority on the question. 

5. The claims made by the applicant in her application for a protection visa were set out in an attachment to that application.  The attachment appears at pages 20 to 23 of the record of relevant documents and is in the form of a series of questions addressed to the applicant together with her responses.   For present purposes those claims may be summarised as follows:

   ·The applicant said that she left Malaysia on 25 April 1999 because she was afraid that she would be persecuted by the Malaysian Government if she returned because she is a Chinese Malaysian.  By way of background she said that she was a housewife and usually stayed at home to look after her husband when in Malaysia.  However, she had been travelling to many countries for the past ten years.

   ·She claimed that one day when her husband was at work a delivery man delivering groceries came to her door and tried to rape her and sexually harass her.  She struggled away and reported the matter to the police.  However, because the man was a native Malaysian and a relative of a sergeant in the police station, the file was deleted and nobody knew of the case.  Later she saw the man and was so angry that she hit him.  The police came on to the scene and she was taken back to the police station and questioned but the man was set free because, she claimed, she was a Chinese Malaysian.

6. The Tribunal, in its reasons, set out these claims and the evidence before the Tribunal from the claimant on the question.  The Tribunal went on to refer to information in a country Report on human rights practices for 1998 for Malaysia published by the US State Department.  In relation to the government's treatment of ethnic minorities, the Report stated that the government of Malaysia implemented extensive preferential programs designed to boost the economic position of the Malaysian majority, which, it said, remains poorer on average than the Chinese minority.

7. The Report went on to state that reports of rape were common in the Malaysian press, but in the passage of the Report quoted by the Tribunal, no reference was made to any suggestion that complaints of rape had any ethnic or racial origin.  In its findings and reasons, the Tribunal noted that it “had some difficulty with the applicant's credibility”.  The Tribunal went on to say that the applicant “appeared at the Tribunal hearing to be unwilling to provide a reasonable explanation of some aspects of her account of her experiences”.  Examples of this were then given.

8. The Tribunal did, however, accept that the applicant was sexually assaulted in late 1998 but found that the applicant’s evidence “does not suggest that the applicant’s ethnicity was a major factor in this assault”.  The Tribunal acknowledged that the incident was serious and extremely distressing for the applicant but stated that “it does not find that the reason for the attack was Convention-related, and does not find that the attack sufficiently serious as to amount to persecution in a Convention sense”.

9. The Tribunal further accepted that the applicant had immediately complained to the police, but that the police “proceeded in a manner which suggests that they treated the complaint professionally”.  At the same time, the Tribunal accepted that the police did not penalise the attacker.  The Tribunal went on to say:

   “While the Tribunal acknowledges that the applicant believes that her assailant went unpunished, and did so because he was Malay and had a relative in the local police station, there is very little evidence beyond her assertion.  While the independent evidence indicates that there is discrimination against ethnic Chinese in Malaysia ‘designed to boost the economic position of the Malay majority’ (page 6), there is no evidence of discrimination in law, or in such matters as police conduct.  Indeed, the applicant’s evidence would suggest that the police conducted themselves in her case in a way that did not indicate any discrimination.  It was only the fact that the applicant’s assailant apparently went unpunished which would suggest that there was interference with the course of justice.  It is plausible, given the applicant’s evidence, that the police did not consider the sexual assault to be serious enough to warrant arrest or punishment.  Even if there was interference with legal process, it is unclear, even from the applicant’s evidence, whether the alleged interference was for personal reasons (the fact that the assailant had a relative in the police force) or for racist reasons (the assailant and the police were Malays, while the applicant was ethnically Chinese).”

10. The Tribunal concluded that, therefore, it made no finding with respect to the reason why the applicant’s assailant was allowed to go unpunished by the police, but considered that, given the relatively minor consequences of police inaction in the matter, “the inaction is not itself indicative of serious harm done to the applicant, and is therefore not persecution in a Convention sense”. 

11. The application for an order of review was prepared by the applicant herself, apparently without the benefit of legal advice.  She has appeared before the Court today, again without legal advice or representation, but with the assistance of an interpreter.  The particulars of the basis for the present application for judicial review are in a narrative form, and consist essentially of a re-statement of her claims made before the Tribunal.

12. There is then a statement that the grounds of the application are that -

    1.The decision was induced or affected by actual bias of the officer (i.e. The Tribunal Member);  and

    2.There was no evidence or other material to justify the making of the decision. 

13. I have been assisted in this matter by the help of submissions of Mr Reilly, counsel for the Minister.  Those submissions were, in accordance with the Court’s usual direction, reduced to writing and they are dated 6 April 2000 and cover the field in terms of the issues apparently raised by the application.  The submission sets out the relevant authorities in this area and I gratefully adopt those submissions as an accurate statement of the relevant legal principles and their application in the present case.

14. In my opinion, there is no suggestion whatever of any bias, actual or perceived, in the present matter and there is no foundation whatever for the applicant’s claim that there was no evidence or other material to justify the making of the decision. 

15. Accordingly, the application will be dismissed with costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.

Associate:

Dated:             May 2000

Solicitor for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 April 2000
Date of Judgment:	7 April 2000