MZXQY v Minister for Immigration

[2007] FMCA 2035

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXQY v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 2035

MIGRATION – Refugee Review Tribunal – whether adequate consideration of claims – applicant seeks review on the merits – whether s.424A engaged – application dismissed.

Migration Act 1958, s.424A

MZXGB v Minister for Immigration and Citizenship (2007) FCA 392

Applicant: MZXQY

First Respondent: MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 699 of 2007

Judgment of: Riley FM

Hearing date: 22 November 2007

Date of last submission: 22 November 2007

Delivered at: Melbourne

Delivered on: 22 November 2007

REPRESENTATION

Advocate for the Applicant: In person

Counsel for the First Respondent: Ms E. Latif

Solicitor for the First Respondent: Clayton Utz

ORDERS

1. The application filed on 29 May 2007 be dismissed.

2. The applicant pay the first respondent’s costs, fixed in the sum of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 699 of 2007

MZXYQ

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP
AND ANOTHER

Respondents

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for judicial review of a decision made by the Refugee Review Tribunal on 19 April 2007.

2. The applicant is a citizen of Thailand. She says that her former partner forced her to convert from Buddhism to his religion of Islam. She says that she later reconverted to Buddhism and her former partner and his family then made threats on her life and would not allow her to see her children. The children are two girls who are now about four and two years old.

3. The Tribunal rejected the applicant's claim that there had been threats on her life or that she had been physically harmed in any way. However, the Tribunal did accept that the family of the applicant’s former partner had sworn at her and had been hostile towards her.

4. The Tribunal said that any of the treatment that the applicant received from the family of her former partner did not appear to have a link to the Refugee’s Convention. The Tribunal considered that any hostility was for personal reasons between the parties, and that the essential and significant reason for the hostility was not a Convention reason.

5. The applicant has raised six grounds of review.

Ground 1

1. The first ground of review is that the Tribunal did not consider the applicant's claims of forced conversion and reconversion and the threats to the applicant's life upon reconversion. The Tribunal set out the applicant's claims about being forced to convert to Islam. However, the Tribunal did not accept that the applicant was forced to convert to Islam and did not accept that there were threats against the applicant’s life after her re-conversion.

2. The Tribunal referred to a report from the United States State Department dated 2006. It said that forced conversions are very rare. It also said that Muslims in the north of Thailand, where the applicant’s family lived, are so heavily outnumbered by Buddhists that they would be unlikely to participate in a campaign of threats on the basis of religion, particularly when the authorities would take strong action against them.

3. The Tribunal said that it had doubts about the truthfulness of the applicant's account in relation to the conversion and considered that the applicant's reconversion to Buddhism played no more than a peripheral part in any animosity towards her. In my view the Tribunal has clearly considered the claims of forced conversion and reconversion and the threats to the applicant's life.

Ground 2

1. The second ground of review is that the Tribunal made a mistake when it said that the applicant's partner kept the children and denied the applicant custody of the children, not for a Convention reason but for reason of personal problems between them. This is essentially a question of fact. It is generally speaking for the Tribunal to resolve questions of fact as it sees fit.

2. I am unable to discern any reviewable error in the Tribunal's conclusion that the applicant's former partner kept the children from the applicant for personal reasons, rather than Convention reasons. Having said that, if the applicant’s former partner had denied the applicant time with her children because of her religion, that could well constitute serious harm for a Convention reason. However, the Tribunal did not accept the necessary substratum of fact for that claim to be maintainable.

Ground 3

1. The third ground of review is that the Tribunal “has not seen the reasons” why the applicant's children were forcefully taken away from her and why the police did not come to help. Again, the Tribunal took a particular view of the motivation of the applicant's former partner and his family. That view was open on the evidence. It was essentially a factual conclusion and I can see no basis for disturbing it.

2. If there had been a Convention reason for the harm suffered by the applicant, the police refusing to help could have amounted to state-sanctioned persecution. However, the Tribunal evidently took the view that the police did not intervene because they saw it as being a purely personal dispute. That conclusion was open on the evidence and in my view is not indicative of jurisdictional error.

Ground 4

1. The fourth ground of review is that the Tribunal should have told the applicant in writing that she had not given a truthful account and had exaggerated her claims. This is apparently a ground under s.424A of the Migration Act 1958. The Tribunal had no obligation to notify the applicant in writing of its doubts about the credibility of her account. Section 424A only requires the Tribunal to advise the applicant of certain sorts of information, not its assessment of the evidence or its thought processes.

2. The Tribunal did refer to some information derived from the applicant's protection visa application but expressly disavowed reliance on it. In the decision of MZXGB v Minister for Immigration and Citizenship (2007) FCA 392 at [58], Lander J said that where the Tribunal expressly disavows reliance on particular material there is no need for the Tribunal to send a s.424A letter in relation to it. That is because the material is not part of the reason for affirming the decision under review. That statement applies to the information contained in the protection visa application. I see no basis on which this ground can be made out.

Ground 5

1. The fifth ground raised by the applicant is expressed as follows:

   Even if I can return to Bangkok as per the Tribunal, what about my children?  That is why I say the Tribunal has not considered my case." 

   The Tribunal decided that the applicant's difficulties in seeing her children were not for a Convention reason. The Tribunal considered that those difficulties resulted from personal animosity between the applicant and her former partner. The Tribunal is unable to correct that situation. The Tribunal's reasons for decision show that it did in fact consider those matters that it was required to consider.

Ground 6

1. The sixth ground is expressed as follows:

   The Tribunal should have properly considered my case when my partner and his family decided to keep my children, when considering their ages they should have come to me.

   It may well be the case that the children should have been put into the care of their mother. However, there was no scope for the Tribunal to make any decision to that effect that would have had any practical utility.

2. The applicant has no doubt suffered from not having her children with her. However, the Tribunal determined that the reason that the children were not with their mother was not a Convention reason. As stated above, the Tribunal considered that the reasons for the applicant's difficulty in seeing her children were connected with personal problems between the applicant and her former partner and were not based on her Buddhism.

Conclusion

1. In all the circumstances none of the grounds are made out and the application must be dismissed.

2. The first respondent seeks costs. The rules of the court provide for costs in the sum of $5,000 to be payable in cases such as this but the first respondent is seeking only $4,500. The applicant was unable to give any reason for costs not following the event, except that she has very little money. In the circumstances, I will order that the applicant pay the first respondent’s costs fixed in the sum of $4,500.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Riley FM

Associate: 

Date: