MZXFI v Minister for Immigration - [2006] FMCA 520

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXFI v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 520

MIGRATION – Refugee visa – decision based on finding of fact – whether given opportunity to respond to adverse findings.

Applicant:

MZXFI

Respondents:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS & ANOR

File Number:

MLG 1623 of 2005

Judgment of:

Phipps FM

Hearing date:

6 April 2006

Date of Last Submission:

Nil

Delivered at:

Melbourne

Delivered on:

6 April 2006

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Mr S Hay

Solicitors for the Respondents:

Clayton Utz

ORDERS

The Application is dismissed.
The Applicant pay the First Respondent's costs fixed at $3,500.00.
The First Respondent's name be amended to delete the words "and Indigenous".

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1623 of 2005

MZXFI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS & ANOR

Respondents

REASONS FOR JUDGMENT

This is an application to review a decision of the Refugee Review Tribunal given on 11 November 2005.
The applicant is a citizen of Thailand. She arrived in Australia on 8 December 2004 on a visitor's visa. She applied for a protection visa. That was refused and an application to the tribunal to review the decision was refused. The tribunal affirmed the decision not to grant a protection visa.
The applicant claimed in her visa application to be of Malaysian ethnicity and a Muslim. She was born and brought up in Thailand but she claims her background is from Malaysia and that Malaysians are a minority ethnic group in Thailand. She claims that she was discriminated against and “overpowered” in Thailand because she is a Malaysian Muslim, she claims she set up an unofficial Malaysian-Thai women's committee.
She claims that she was a member of the Prachathipat Party and because of her membership of that party and leadership of a small social group, the government branded her a traitor and a threat to the country. She claims that many times she was taken away by the authorities and subjected to forced labour and abuse and so she claims to fear persecution if she returns to Thailand.
The tribunal conducted a hearing on 9 November 2005. The tribunal sets out the evidence and the questions and answers at the hearing. The applicant said her father and her mother were both born in Thailand. Her father's father had been born in Malaysia. This was her only tie to Malaysia.
A number of questions were asked about her claim to be a Muslim and eventually she said that she had never been a practising Muslim. When the tribunal asked her whether her claim to have been discriminated against and overpowered because she was a Malaysian Muslim was untrue, the applicant responded that she had been discriminated against in Thailand because of her political activities with the Democrat Party.
The tribunal asked her questions about the Malaysian-Thailand women's committee and she said it campaigned for the Democrat Party. She said that as a member of this political party she had campaigned for it. The tribunal asked the applicant why she had been branded as a traitor and threat to her country merely because she had campaigned for the Democrat Party. The applicant answered it was because they did not like her.
The tribunal asked her to elaborate on her claim that she had been subjected to forced labour and abuse. The applicant said that she had been threatened several times. She said she had been forced to work in hard labour. She said she had been forced to work as a road builder. The tribunal says in its reasons that it told the applicant that this claim bordered on the ridiculous and was not believed. The tribunal referred to country information about the constitution and method of government in Thailand, and the provisions providing for religious belief and religious affairs.
In its reasons for its decision, the tribunal accepted that the applicant is a citizen of Thailand and that she and both her parents were born in Thailand. The tribunal set out that it accepted the difficulties applicants for refugee status have in proving their claims. The tribunal said that the applicant's evidence on every significant aspect of her claim was either or both inconsistent, contradictory or implausible.
The tribunal dealt with each of the convention-related grounds the applicant put forward. The first is her Malaysian ethnicity. The tribunal referred to the applicant's evidence that her only link with Malaysia was through her paternal grandfather and that both her parents had been born in Thailand. The tribunal concluded that the applicant was never persecuted in Thailand because of her Malaysian ethnicity. The tribunal dealt with her claim to be a Muslim. The tribunal said it was satisfied that she had never been persecuted in Thailand because of her religion. That was because of the applicant's evidence that she had never been a practising Muslim.
The tribunal dealt with the convention ground of political activities. The tribunal did not accept that she set up an unofficial Malaysian‑Thai women's committee or that she was a member of the opposition Prachathipat Party, which she also referred to as the Democrat Party. The tribunal described the applicant's evidence as totally unconvincing. The tribunal said that her claim to have been branded a traitor and forced to labour on the roads defied credibility. The tribunal found them to be a complete fabrication. Consequently, the tribunal found that the applicant had no basis for alleging that she had been persecuted on any convention grounds.
The applicant's application to the Court sets out the grounds of the application that "If the tribunal did not believe me on the ground of my Malaysian ethnicity or Muslim religion, it did not tell me so and warn me." The application claims that the tribunal did not bring to the applicant's notice country information that the tribunal considered it had against her. There appears to be a claim that Malaysian ethnicity or Muslim religion were not each considered as separate claims.
The contentions filed by the applicant said that the tribunal made a mistake in saying that it did not believe the applicant and that it did not want to hear any more from her, and then saying that it would consider everything the applicant had said. It claims that the tribunal had not been fair and did not give the applicant an opportunity to say what she wanted to say. It also says the tribunal should have warned the applicant that it was going to say something against her, on her case that she is part-Malaysian and a Muslim.
The contentions have attached to them a transcript of the tribunal hearing. The transcript shows that the tribunal took care to take the applicant through her claims and was careful to make sure that the way in which the applicant put her claim to Malaysian ethnicity and to being a Muslim was clearly spelt out. The applicant's answers were that her father's father was Malaysian and that was her only tie with Malaysia and she eventually said that she is not a practising Muslim.
The complaint that the applicant was not given an opportunity to respond to the tribunal's ultimate finding that she is not of Malaysian ethnicity and is not a Muslim is wrong. She was given that opportunity. The claim in the contentions that the tribunal made a mistake in saying that it did not believe the applicant and did not want to hear any more, when taken in context does not show any unfairness.
The latter part of the evidence was questions by the tribunal about the applicant's claim that she had been subjected to forced labour and abuse. The tribunal was asking questions which were aimed at obtaining details, and eventually the applicant said that "Once they forced me to work in hard labour and they forced me to work in road building." The tribunal member responded that that was "ridiculous" and asked "When did this happen?" and the applicant responded "Last year."
The tribunal member then said to the applicant that she did "not believe a single word you've told me today." The tribunal referred to the applicant saying her only connection with Malaysia was one grandfather and that she was not a Muslim and said that the claim to be persecuted because of membership of the Democrat Party was totally unbelievable. Then said, "Do you have anything else to say to me now?"
The tribunal, in explicit terms, put to the applicant the conclusion the tribunal had reached about her evidence that she was not believed. The same conclusion is stated in the decision. Having put that conclusion, the Tribunal asked the applicant if she had anything else to say. Rather than being unfair, that shows the tribunal putting before the applicant what it was thinking and so giving the applicant the opportunity to respond.
The applicant did respond, although to little effect. It was then that the tribunal said, "I don't believe you. I'm sorry, I will consider. I don't need to hear any more from you. I will consider everything you've said to me today and I will let you know the decision very soon." That was not unfair and did not deprive the applicant of an opportunity to put her case. The applicant put her case to the tribunal and the tribunal did not accept it.
The tribunal's decision is based solely on findings of fact, either evidence of the applicant about her connection with Malaysia and the Muslim religion, or a rejection of evidence by the applicant that the tribunal found unbelievable. It is for the tribunal to consider questions of fact. Findings of fact do not constitute grounds for a challenge in the Court.
The application to this Court is dismissed.
An application has been made for costs. The usual rule that the successful parties recover costs should follow.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate: Sherryn Kwong

Date: