MZXAM v Minister for Immigration & Multicultural & Indigenous Affairs

[2006] FCA 1038

FEDERAL COURT OF AUSTRALIA

MZXAM v Minister for Immigration & Multicultural & Indigenous Affairs
[2006] FCA 1038

MZXAM v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND ANOR
VID 314 OF 2006

RARES J
7 AUGUST 2006
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 314 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZXAM
Appellant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	7 AUGUST 2006
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The Refugee Review Tribunal be added as the second respondent.

2.The second respondent be granted leave to file in Court a submitting appearance.

3.The appeal be dismissed with costs fixed in the sum of $3,100.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 314 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZXAM
Appellant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE:	7 AUGUST 2006
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1. This is an appeal from a decision of the Federal Magistrates Court (MZXMA v Minister for Immigration [2006] FMCA 477) given on 16 March 2006 in which the trial judge dismissed the appellant's claim for Constitutional writs to issue quashing a decision of the Refugee Review Tribunal which had confirmed a decision not to grant him a protection visa (which was made on 31 March 2005 and handed down on 22 April 2005).

   CLAIMS IN THE TRIBUNAL

2. The appellant is a citizen of Malaysia.  He made a claim that he was entitled to a protection visa on the basis of his being of Indian ethnicity and of the Hindu religion.  He is a single man who arrived in Australia with a visa that had been issued in March 2003.  He completed his education at secondary and tertiary level in Malaysia and worked as a technician.

3. Essentially the claim for protection which was made to the Tribunal was that the appellant had been persecuted because of his religion.  He claimed that he had been forced to convert to the Muslim religion by religious extremists at whose hands he feared harm and he believed that the Malaysian authorities would not offer him protection because they shared the same religious beliefs.  At the hearing before the Tribunal the appellant gave evidence that he had studied in India until he was 16 years old and then returned to Malaysia where he continued his studies.  He completed his diploma in robotic engineering in 1999.

4. He had claimed that he had practised his Hindu religion by sometimes going to a temple when there was a festival, but usually prayed in private in his house.  In evidence to the Tribunal he said that the Muslims had forced him to convert to Islam by calling him names whenever he crossed through a Muslim area.  The Muslims said that Hindus should not live there and he could only become their brother by converting to Islam.  The Tribunal referred him to the substantial incident in 1998 in the appellant's home area of Penang in which there were hostilities over the site of a Hindu temple.  The appellant claimed to the Tribunal that after the incident people often called him names in the street, but sometimes he would be stopped on his motorcycle and Muslim people would say to him that it was not his country, it was a Muslim country and there was no temple for him.

5. He said that two to three days after the temple hostilities in 1998 he had been beaten by a group of Muslim extremists and that he was forced to do his shopping in different areas so as to avoid being called names.  He claimed also that he had been asked for money and eventually stopped going to play snooker and shop in a particular area (which I infer was claimed to be because of this abuse).  He said that whenever he met the Muslim extremists they would call him names such as ‘Hindu pariah’.  The Tribunal asked him why he could not seek protection from the authorities to which he had responded that the police controlled all things.  He said that he did not know why Muslims did not like him when questioned by the Tribunal. 

   TRIBUNAL FINDINGS

6. The Tribunal had regard to country information including information which suggested that after the temple incident in which there had been violent hostilities in Penang State in 1998, there had been no incidents in the years 1999 and 2000.  It also referred to material from the State Department of the United States of America in its International Religious Freedom Report 2004 for Malaysia that had been issued in September 2004.  That noted that while the Malaysian Constitution provided for the freedom of religion, the government had placed some restrictions on that right but that non Muslims were free to practise their religious beliefs with few restrictions.  The report continued:

   ‘The generally amicable relationship among believers in various religions in society contributed to religious freedom.’

7. The Tribunal considered the appellant's claims noting that he had completed his secondary and tertiary education without apparent disruption following the temple incident in 1998 and was gainfully employed prior to his departure for Australia. The Tribunal referred to the requirements of s 91R of the Migration Act 1958 (Cth) (‘the Act’) and in particular to the necessity under that provision for an applicant for a protection visa to establish the requisite degree of serious harm which s 91R(1) requires it be made out in order to enliven Australia's obligations to afford protection. The Tribunal also noted that the State Department Report had identified that the 2000 census in Malaysia found that 6.3 per cent of the population practise Hinduism.

8. The Tribunal concluded that on the evidence before it, it was not satisfied that the appellant had been persecuted in the past for a Convention reason or for any other reason. It said that while he may have experienced some form of harassment such as name calling for reasons of his Tamil ethnicity and Hindu religion as he claimed, on the evidence before it the Tribunal did not accept that in the appellant's case that harassment and discrimination was sufficiently serious as to amount to persecution under s 91R(1) of the Act.

9. The Tribunal was thus not satisfied on the evidence before it that there was a real chance that the appellant would be persecuted if he returned to Malaysia in the foreseeable future.

   FEDERAL MAGISTRATES COURT DECISION

10. The Federal Magistrate’s judgment took the unusual and undesirable course of annexing the contentions of fact and law filed by the Minister as part of its reasoning process.  The trial judge adopted those contentions of fact and law as correct and went on to dismiss the application. 

    THIS APPEAL

11. Before me the appellant relied on the written submission which he had filed before the Federal Magistrates Court and not unnaturally the Minister relied on her submissions in answer.

12. The substantial issues raised before me in this appeal are whether the trial judge made any error in dismissing the application.  In substance, because this is an appeal by way of re-hearing the issue resolves into whether any jurisdictional error in the way in which the Tribunal approached its decision has been established.  Essentially the appellant's argument was that the Tribunal did not properly consider that he had a well founded fear of persecution were he returned to Malaysia by reason of the persecution which he claimed he had suffered as a result of his religious beliefs.

13. It was for the Tribunal on the review before it to form its own state of mind as to whether it was satisfied that the appellant had a well founded fear of persecution were he returned to Malaysia. That is quintessentially a finding of fact for the purpose of s 65(1) of the Act.

14. I can see no error of a jurisdictional kind in the way in which the Tribunal approached the assessment of the claims made by the appellant in this regard.  It was for the Tribunal to be satisfied or not by what he claimed as to his past treatment and as to whether, on the evidence before it, any fear he had, if he were returned to Malaysia, were well founded within the meaning of the authorities.

15. Procedural fairness is directed to the obligation to give the appellant a fair hearing and it is necessary in an appeal of this nature to look at what procedural fairness required the Tribunal to do in the course of conducting its review (see Applicant VEAL of 2002 v Minister of Immigration and Multicultural and Indigenous Affairs (2005) 222 ALR 411 at 415 [14]).

16. The appellant complained that the Tribunal had looked at the general country information but had not considered his particular situation. I am of the opinion that that complaint cannot be sustained having regard to the Tribunal's reasons to which I have referred. The Tribunal considered the appellant's individual case, weighed it as it was entitled to, and found that it, was ultimately not satisfied by what he had put forward. That was an exercise of the very function which the parliament had conferred on the Tribunal under s 414 of the Act.

17. The appellant also complained that the Tribunal had failed to give him enough of an opportunity to put his case to it or to advise him how to put his case. It is not the function of an administrative decision-maker to advise a person who is an applicant for a decision to be made in his or her favour as to how to prepare the case or put matters to the decision-maker. The Tribunal's function under the Act is investigative. Obviously, in circumstances where, for example, the decision-maker has information which is credible, relevant and significant which is adverse to the applicant and of which the applicant may not be taken to know, then, subject to the provisions of s 424A(3)(a) of the Act, the decision-maker, in this case the Tribunal, is obliged to consider the quality of that information and to give an applicant an opportunity to respond to it before concluding a review (Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 ALR 411 at 416-417 [16]-[18]).

18. In this case there was nothing in the material which the Tribunal had before it and which it said it considered which fell into the category that required it to provide the appellant with any further information beyond that of which he was either aware at the outset or which came up in the course of the hearing before the Tribunal. The Tribunal, in particular, was not required to give the appellant particulars of the country information to which it had regard by reason of s 424A(3)(a) of the Act.

19. The appellant made a number of assertions in his written submission to the Federal Magistrates Court.  Those assertions did not descend to any level of particularity but amounted to bald propositions.  I have considered each of those matters in coming to my decision.  They are as follows (in addition to those set out above):

    ·The Tribunal's reaching its satisfaction to affirm the decision under review was not based on reasoning which provided a rational or logical foundation for that belief. 

    ·The Act was not observed properly in the making of the decision.

    ·The Tribunal failed to consider the appellant's documentary evidence in the proper way in which the Act provided.

    ·The Tribunal erred in finding that the totality of the country information did not show that the Hindu minority were persecuted for religious reasons in Malaysia.

    ·There was not proper notification of the hearing invitation. 

    ·The Tribunal was actually biased.

20. Having regard to the Tribunal's reasoning I am unable to see any basis upon which it could be suggested that the Tribunal did not provide reasons according to law in arriving at its decision. I see no basis upon which it could be suggested that the Tribunal did not observe the requirements of the Act in coming to its decision. The appellant has not identified any documentary evidence which the Tribunal failed to deal with that was put forward by him or the way in which such a failure occurred. The Tribunal gave the appellant, on the material before me, a full and proper opportunity in accordance with law to put his case, to attend the hearing and to put both his evidence and arguments to it for the purposes of satisfying it, if he could, of the merits of his claim.

21. I am unable to understand any basis upon which it could be said the appellant did not have proper notice of the hearing.  He received an invitation to the hearing which was sent to him on 25 October 2004 and he in fact attended the hearing and gave evidence.  There is no substance in this ground.

22. When I asked the appellant to deal with the allegation of actual bias that was contained in his written submission to the Federal Magistrates Court, he told me that the basis upon which he was putting this was that the Tribunal did not give him enough of a chance to put his case and did not tell him how to put his case.  In the context of the material before me that is not capable of sustaining an allegation of actual bias.  It may be that the appellant misunderstood quite what actual bias meant.  I have dealt already with his ground of appeal which he argued that the Tribunal was required to assist in the preparation and presentation of his case and I have rejected that.

23. In my opinion there is no substance in any of the matters which I have set out above in short form that were advanced in the appellant's written submission to the Federal Magistrates Court.  I reject those grounds to the extent they may be grounds for appeal.

24. The appellant's notice of appeal does not raise any other matter of substance.  It asserts that a number of decisions of the High Court had some relevance to the case.  I am unable to identify how, relevantly, consideration of those decisions has any bearing on whether a jurisdictional error was committed by the Tribunal so as to enliven the Court's jurisdiction to grant Constitutional writs in this case.

25. Indeed in Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476, the High Court identified the basis upon which jurisdiction resides in this Court and in the Federal Magistrates Court to review decisions of the Tribunal for the purposes of granting Constitutional relief where jurisdictional error is established. There is a reference in ground 7 of the notice of appeal to an attempt to file a transcript of the Refugee Review Tribunal hearing. It notes that the Federal Magistrate did not consider the request, but nothing has been put before me to show that this ground has any substance. And, moreover, no attempt has been made to lead fresh evidence on the appeal of the transcript or to seek to tender the transcript before me to substantiate any claim made in this case.

26. I am of the opinion that none of the grounds of appeal identify any error made by the trial judge or that the trial judge erred in dismissing the application for Constitutional writs.

27. For these reasons I am of the opinion the appeal should be dismissed with costs.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:        10 August 2006

Appellant:	In person
Counsel for the Respondent:	Mr A Lewis
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	7 August 2006
Date of Judgment:	7 August 2006