Naiu v Minister for Immigration - [2002] FMCA 168

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAIU & ORS v MINISTER FOR IMMIGRATION

[2002] FMCA 168

MIGRATION – Application for review of decision of the Refugee Review Tribunal – whether the Tribunal erred in finding the applicant’s fear of persecution was not well-founded.

Judiciary Act 1903 (Cth) s.39B

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598
R v Murray; Ex parte Proctor (1949) 77 CLR 387

Applicants:

NAIU, NAIV, NAIW & NAIX

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 496 of 2002

Delivered on:

15 August 2002

Delivered at:

Sydney

Hearing Date:

8 August 2002

Judgment of:

Raphael FM

REPRESENTATION

For the Applicants:

Applicant in person

Counsel for the Respondent:

Solicitors for the Respondent:

Mr T Reilly

Sparke Helmore

ORDERS

Application dismissed.
Applicants pay the Respondent’s costs in the sum of $3,750.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 496 of 2002

NAIU, NAIV, NAIW & NAIX

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant, his wife and children who join with him in this application are Burmese. They arrived in Australia on 8 December 1999 and applied for protection visas under sub-class 866 on

21 January 2000. Their application was declined by the delegate of the Minister and was made the subject of review by the Refugee Review Tribunal constituted by Roslyn Smidt who handed down her decision on 30 April 2002. This decision affirmed the decision not to grant protection visas.
I have stated that the applicant is “Burmese” because he has informed the Court and the Tribunal that he is not a full citizen of Burma notwithstanding that he was born there. He claims that this is because he is a Muslim and he only has what he describes as “guest citizenship”. He claims that this is a matter which goes to the question of whether or not he qualifies under the Convention as a refugee.
This application was originally made to the Federal Court of Australia and placed in the docket of Emmett J. On 4 July 2002 by consent and with his Honour’s approval the matter was referred to this Court. At the same time orders were made including:
“2. The applicant file and serve any amended application and any evidence upon which he proposes to rely on or before 19 July 2002.
…
4. The applicant file and serve written submissions five (5) working days prior to the hearing date.”
These orders were not complied with although the applicant had the benefit of legal advice pursuant to the Minister’s scheme. The matter therefore proceeded on the grounds of the original application which is in the following form:
“1. The Applicants’ application for a Protection Visa was not considered according to a proper interpretation of the law in that the Respondent misconstrued the criteria for a Protection Visa under the Migration Act and the Migration Regulations.
2. The Respondent misconstrued the meaning of the phrase “well-founded fear of persecution” as it appears in the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.
3. The Respondent erred in failing to determine the Applicant’s refugee status in light of the facts as they existed at the time of the determination of the Applicant’s status.
4. The Respondent erred in that the making of the decision was an improper exercise of the power conferred by the enactment in that the exercise of the power was so unreasonable that no reasonable person could have so exercised the power.
5. The Respondent erred in that the making of the decision was an improper exercise of the power conferred by the enactment in that the Respondent had regard to irrelevant considerations and failed to have regard to relevant considerations.
6. The Respondent erred in that the making of the decision was an improper exercise of the power conferred by the enactment in that the Respondent failed to give the Applicants the opportunity to consider all relevant material in the possession of the Respondent.”
These grounds of application were supplemented by a document filed on 18 July 2002. This document sought to confirm the matters which the applicant had raised with the Tribunal concerning his activities on behalf of the Muslim community whilst in Burma. Attached to the document was some country information to support the allegations that Muslims in Burma are a persecuted minority.
Whilst a liberal reading of the grounds of application would divine the constituents of a s.39B Judiciary Act 1903 (Cth) application there was no indication of a “Hickman” ground (R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598; R v Murray; Ex parte Proctor (1949) 77 CLR 387), in particular, lack of bona fides in the decision making process. Notwithstanding this, and in view of the division of opinion in the Federal Court as to whether this absence is fatal to an application, I proceeded to hear the matter.
The applicant claimed that whilst residing in Burma he had been a member of the Rangoon University Old Students Association and had participated in strikes and demonstrations which took place in 1988. His participation in these demonstrations led to him being detained for three months. He and his wife were the subject of continued questioning following his release. The applicant also claimed that in March 1997 he was active in providing security to mosques and witnessed the destruction of a mosque by government activists disguised as Buddhist monks whilst the armed forces stood on.
The applicant also informed the Tribunal that he had had difficulty in obtaining a passport because of his political activity although he eventually obtained one in July 1999 after paying a large bribe. He was then involved in a further demonstration on 9 September 1999 in Meiktila. Although the demonstration broke up when the army arrived the applicant was questioned by the special branch. The applicant claimed that he was also required to pay an additional bribe when he left the country because his political activity was known to the police.
Since the applicant has arrived in Australia he has been active in the Burmese pro-democracy movement.
The Tribunal in its decisions treated separately the applicant’s political activity and the fact of his being a Muslim. The Tribunal accepted that Muslims were discriminated against in Burma but came to the finding that the discrimination suffered did not amount to persecution. In regard to the applicant’s claims about his political activity, the Tribunal came to the view that this evidence was not credible.
In his submissions to the Court the applicant stated:
“The Tribunal did not accept as true what I presented to it. What I presented there was the truth.”
“The Tribunal did not accept I had been politically active or worked for the Muslim community. The Court would be aware that the Muslims are being persecuted in Burma. If I am deported back, I will be put in jail, I will be arrested.”
After the applicant had had translated to him the helpful written submissions of the respondent, he said in respect of paragraph five of those submissions:
“The Tribunal did not accept that I was arrested. But I have presented what I have actually suffered. The fact that they did not believe me makes me very sad. Everyone is aware that Muslims in Burma are persecuted and I am a Muslim. The Tribunal did not accept that. Because I am a Muslim I could not be a natural born citizen although I was born in Burma. I did travel all over the country making speeches for the Muslim community.”
It will be seen from these submissions that the applicant is not attacking the manner in which the Tribunal came to its decision, which might well be the subject of a s.39B application, but the decision itself. He seeks from the Court a reversal of the findings of the Tribunal so that it is accepted that he is a person to whom Australia owes obligations under the Refugee Convention and protocols.
Paragraph eight of the submissions of the respondent puts the position succinctly:
“It is apparent that the Tribunals’ decision turns on the view it took of the facts, in particular its strong adverse view of the Applicant’s credibility, and its assessment of country information. So long as the Tribunal’s credibility findings were open to it, no error is demonstrated: Kopalapillai v MIMA (1998) 86 FCR 547 (FC) at 558-559; W148/00A v MIMA (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and RD Nicholson JJ. The Tribunal’s findings were open for the reasons it gives. The Tribunal’s assessment of whether the harassment suffered by the Applicant as a Muslim was sufficiently serious to constitute persecution within s.91R of the Migration Act 1958 was also a factual matter for it eg Prahastono v MIMA (1997) 77 FCR 260 (Hill J) at 268, 271. There is no error in the Tribunal’s decision.”
I accept those submissions. I have also looked independently at the decision. There is nothing that I can see in it which would suggest the availability of review under s.39B as interpreted in the migration jurisdiction by the High Court or the Federal Court. There is no allegation of lack of bona fides. In the circumstances I must dismiss this application.
The respondent has assessed its costs in the sum of $4,900. I believe that figure is too high for a matter of this nature. I would assess the costs pursuant to Part 21, rule 21.02(2)(a) of the Federal Magistrates Court Rules in the sum of $3,750.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: