NACW v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 268

FEDERAL COURT OF AUSTRALIA

NACW v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 268

MIGRATION – Application for a protection visa – no point of principle raised.

Migration Act 1958 (Cth)

NACW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1597 of 2001

MOORE J
19 MARCH 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1597 of 2001

BETWEEN:	NACW APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MOORE J
DATE OF ORDER:	19 MARCH 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The application be 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 1597 of 2001

BETWEEN:	NACW APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MOORE J
DATE:	19 MARCH 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1. This is an application by NACW (“the applicant”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 7 November 2001 affirming a decision of a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”), refusing to grant the applicant a protection visa.  The criterion for the grant of such a visa is that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees of 28 July 1951 as amended by the Protocol Relating to the Status of Refugees of 31 January 1967 (“the Convention”).  At the hearing of the application on 13 March 2002, I ordered that the application be dismissed with costs.  These are my reasons.

   Background

2. The applicant, who is a citizen of Thailand, arrived in Australia on 24 April 2001.  On 5 June 2001 she lodged an application with the Department of Immigration and Multicultural Affairs for a protection visa under the Migration Act 1958 (Cth) (“the Act”). On 15 June 2001 a delegate of the Minister refused to grant a protection visa and on 7 November 2001 the Tribunal affirmed the delegate’s decision.

   The Tribunal’s reasons

3. In a section in its decision headed “Claims and Evidence”, the Tribunal set out the claims made by the applicant in her application for a protection visa and in her written submissions in support of the application and the application for review.  The applicant was invited to give oral evidence at a hearing before the Tribunal, but neither she nor her adviser responded.  The Tribunal consequently reviewed the decision on the material before it.  A summary of the claims as set out in the Tribunal’s decision is as follows.

4. The applicant was born in 1972 in Bangkok.  She attended school from 1978 until 1991, and on leaving school was employed as a shop assistant in a furniture shop from 1992 until 1999. In about August 1999 an incident occurred in which a friend of the applicant received unfair treatment at the hands of a person from a wealthier, more influential background.  After the applicant’s friend was unsuccessful in bringing legal action against the perpetrator, the applicant organised a protest which numbered about one hundred people.

5. The security authorities interviewed her after this protest had taken place, and in the course of the interrogation she was tortured and mistreated, and subsequently dismissed from her position at the furniture shop.  In response to this incident the applicant joined an organisation called “Human Rights Independent Union”, who sought to achieve basic rights for workers.  Their methods involved distributing leaflets which sought to incite action by workers against the government.  Their actions attracted the attention of the police and a member known to the applicant was arrested by the police in March 2001.  As the “major leader and founder of the anti-government organisation” she took action to escape from the dangerous situation she believed herself to be in, departing for Australia on 23 April 2001. 

6. The Tribunal set out its findings in a section titled “Findings and Reasons”.  It referred to independent country advice to the effect that residents of Thailand are able to exercise freedom of speech.  The Tribunal considered the consequences for the applicant of membership of the organisation to which she claimed to belong.  It continued:

   “There are many human rights groups and organisations who work without government restriction.  In relation to union activity there is freedom of association in both public and private sectors, though less than 2 per cent of the workforce is unionised.  Given this information it is difficult to understand what the applicant was involved in, if anything, as the type of association and activity described by her is not, on the information available to me, either illegal nor is it apparent that it is of any concern to the authorities.  I have researched the CISNET and ISYS databases and can find no reference to any organisation in Thailand of the name given by her.”

7. The Tribunal concluded, in the absence of further information from the applicant, that she was not a person to whom Australia had protection obligations under the Convention, and affirmed the decision not to grant a protection visa.

   Issues raised in the application for judicial review

8. The applicant said she had not received notification of the hearing before the Tribunal. It was for that reason that she did not attend. However the applicant was sent a letter advising her of the hearing and the letter was addressed to an address she had provided to the Tribunal when she lodged a "change of address" form on 11 September 2001. I note, in passing, that an earlier notice had been sent her to at "Cliost Street" whereas her address had, in fact, then been "Clio Street". However, given that the notice of the hearing was sent to the applicant's address (that it was her address was accepted by her at the hearing), it was open to the Tribunal to proceed as it did: see s 441A of the Act. In addition, I have read the Tribunal's decision and it is not apparent to me that the Tribunal has made any error of law in dealing with the application for a protection visa let alone any reviewable error of law. For these reasons I dismissed the application with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:             19 March 2002

Solicitor for the Applicant:	The applicant appeared in person with the aid of an interpreter.
Counsel for the Respondent:	S Lloyd
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	13 March 2002
Date of Judgment:	13 March 2002