MZXDF v Minister for Immigration - [2006] FMCA 636

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXDF v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 636

MIGRATION − Where refugee status claimed on Convention grounds of political opinion and religion − where credibility of applicant questioned − where applicant did not respond to s.424A letter − where Tribunal did not accept applicant’s claims − whether Federal Magistrates Court can review the merits of a Tribunal decision.

Migration Act 1958
Federal Magistrates Court Rules 2001

MZWHI v Minister for Immigration (2005) FCA 1046
SZDFO v Minister for Immigration (2004) FCA 1192

Applicant:

MZXDF

First Respondent:

MINISTER FOR IMMIGRATION & MULTiCUlTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

MLG1171 of 2005

Judgment of:

Raphael FM

Hearing date:

27 April 2006

Date of last submission:

27 April 2006

Delivered at:

Melbourne

Delivered on:

27 April 2006

REPRESENTATION

For the Applicant:

Applicant in person

Counsel for the Respondent:

Ms S Burchell

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application be dismissed.
The applicant shall pay the First Respondent’s costs fixed in the sum of $4,750.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG1171 of 2005

MZXDF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Malaysia. He arrived in Australia on 8 August 2004. On 16 September 2004 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 26 November 2004 a delegate of the Minister refused to grant a protection visa and on 22 December 2004 the applicant applied for review of that decision.
On 6 June 2005 the Tribunal wrote to the applicant advising him that it had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. The Tribunal invited the applicant to a hearing which took place on 7 July 2005. On 15 July 2005 the Tribunal wrote a letter to the applicant providing him with particulars of information which might be the reason or part of the reason for deciding that he was not entitled to a protection visa. The applicant was given until 9 August 2005 to respond to that letter.
On 2 August 2005 the applicant wrote to the Tribunal advising it that he was unable to obtain further documentation from Malaysia. On 24 August 2005 the Tribunal determined to affirm the decision not to grant a protection visa and it handed that decision down on 16 September 2005.
The applicant is a Malaysian citizen of Tamil ethnicity. For some three years prior to his departure from Australia he worked in a plastics factory that had once belonged to Chinese Malays but now belonged to an indigenous Malaysian. The applicant claimed that he had a well‑founded fear of persecution for the convention reasons of political opinion and religious/ethnic identity.
In regard to the claims made in respect of his political opinion he told the Tribunal that whilst at the plastics factory he had formed a union of fellow Tamils which he called the Hindu Society. He submitted that the union was utilised to raise with management problems that the Tamil minority had at the workplace. The applicant's story is somewhat confusing because, as the Tribunal pointed out at one stage, he was claiming that the management would not listen to any complaints about conditions unless a union had been formed but at the same time the applicant was arguing that the formation of the union itself gave rise to beatings and other intimidatory conduct.
The Tribunal closely questioned the applicant concerning this union and in particular its formation. The applicant told the Tribunal that when the union was being formed he was advised that it should be affiliated with a much larger union known as the NUPW, which the Tribunal identified as the National Union of Plantation Workers, although the applicant was himself unable to identify it by name. The Tribunal questioned the applicant concerning the formalities for recognition and registration of the union but found that the applicant's knowledge of these matters was small. The applicant had told the Tribunal that he and an older man were the founders of the Hindu Society and the Tribunal had expected that he would know somewhat more about these matters than he appeared to.
The applicant told the Tribunal that at one stage a small Hindu temple had been erected within the factory area. He said that the temple had been pulled down by Muslims and that he and the Hindu Society had made complaints about this to management. He was told that the management was unsympathetic to these complaints. The applicant also told of an incident where a Hindu worker had placed a stone in the position where the temple had stood and had started to worship there and had become the subject of violence from Muslim workers.
The applicant also told the Tribunal about the circumstances in which he had determined to leave Malaysia. In his original application found at [CB 7] the applicant had said that in the month of July [2004] -
“… a group of unidentified people attacked me and threatened me that they would kill me.”
but in his evidence to the Tribunal he claimed that he had stopped working in June 2004 following a fight with a Malay worker.
The applicant told the Tribunal that he believed that Hindus were discriminated against, in particular in relation to their employment, where Hindus received less wages than Muslims. The Tribunal considered this form of discrimination and determined that it did not fall within the definition of persecution. At [CB 18-19] the Tribunal said:
“The Tribunal does not accept that the applicant's race or religion have, in the past, caused him to suffer such discrimination or other harm in relation to his education or employment as to amount to persecution. Particularly in light of his employment history, the Tribunal does not accept that the applicant would, if he were to return to Malaysia, face discrimination in employment of such a nature as to amount to persecution.”
The Tribunal had problems with the applicant's credibility which were addressed in the s.424A letter sent on 15 July 2005. Because of the inconsistencies found by the Tribunal it came to the conclusion that it did not accept that he founded the Hindu Society or that he played a prominent part in union activities or that as a result he suffered persecution at the hands of the Muslim majority in his factory. The Tribunal did not accept the story concerning the Hindu temple, nor the applicant's claims concerning his dismissal. Given that the Tribunal did not accept any of these matters it was not difficult for it to come to the conclusion that he was not a person who was being persecuted for any convention reason and that there was only a remote chance that he would suffer persecution for reasons of his race or religion if he returned to Malaysia now or in the foreseeable future.
Before me today the applicant indicated that he was dissatisfied with the Tribunal's decision because:
“They believe things I said did not take place. I said they happened to me. They said it could not have happened.”
The court appreciates how difficult it is for persons such as the applicant to clearly articulate allegations of a complex legal concept such as jurisdictional error, and here, as in the normal course, has carefully looked at the court book and the grounds of decision to see whether or not there is evidence on the face of the record that such an error may have occurred. There does not appear to be any such indication. The Tribunal came to a conclusion concerning the applicant's credibility. As Merkel J opined in MZWHI v Minister for Immigration (2005) FCA 1046 at [5]:
“The findings are essentially findings as to whether the appellant should be believed in his claims, which are findings on credibility. Such findings were referred to by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 [67] as "the function of the primary decision-maker par excellence" and, while not invulnerable to review, are difficult to overcome. That is particularly so where, as has occurred in the present case, the RRT provided a rational basis for not accepting the appellant's claims and relied upon matters that were logically probative of the issues it was determining; see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 552 and 559.”
It seems to me that his Honour's words accurately set out the situation in this particular case. The applicant before me has really sought to challenge the merits of the decision made. That is a request that the court cannot entertain. Allsop J defined the role of the court in these matters in some detail and with particular relevance to this applicant's case in SZDFO v Minister for Immigration (2004) FCA 1192 where his Honour said:
“8The structure of the legislation, being the Migration Act and in particular s 474 of that Act, as interpreted by the High Court in Plaintiff S157 of 2002 v Commonwealth (2003) 211 CLR 476 only entitles the Federal Magistrates Court or this Court to interfere with what the Tribunal has done if there is found to be what is referred to as a jurisdictional error.
9What that means is as follows: the error to be demonstrated as committed by the Tribunal must be one that reveals a failure to carry out its statutory task. That is, it must be shown that the statutory authority and duties placed upon the Tribunal have not been complied with. Examples of that kind of error are as follows: that the Tribunal has misunderstood the correct question that it should be dealing with; that the Tribunal has failed to deal with the claims as they are put by the applicant; that the Tribunal has failed to afford the applicant procedural fairness in the way it dealt with the matter; that the Tribunal failed to take into account a consideration the law made compulsory to consider; and that the Tribunal took into account a consideration that the law made compulsory not to consider.
10These are the main examples. Conformably with High Court authority, factual error is rarely reflective of jurisdictional error. There may be circumstances where findings of fact are such as to demonstrate that the Tribunal has misunderstood its task. There may be circumstances where the findings of fact are so irrational or capricious as to display a failure of the Tribunal to attend conscientiously and appropriately to its statutory obligations.
11Within the kinds of boundaries that I have just identified the findings of fact and the assessment of evidence is a matter for the Tribunal in the exercise of the executive power. The Parliament has chosen not to permit the courts to review factual material beyond the proper confines of identifying jurisdictional error. It is against that legal background that the appellant needs to understand the reasons for the disposition of his appeal.”
The situation that pertains here then is that the applicant has failed before the Tribunal because, for reasons which were open on the evidence before it, it did not accept the claims. Another Tribunal may have found differently but we are not dealing with another Tribunal. This court is not another Tribunal. The Tribunal properly advised the applicant, in accordance with the provisions of the Migration Act 1958 about matters which it considered to be a reason or part of the reasons for making an unfavourable decision. There is no evidence of jurisdictional error on the face of the decision and I must therefore dismiss the application, which I do. I order that the applicant pay the First Respondent’s costs assessed in the sum of $4,750.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: