NAUJ v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCAFC 43

FEDERAL COURT OF AUSTRALIA

NAUJ v Minister for Immigration & Multicultural and Indigenous Affairs

[2004] FCAFC 43

NAUJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N919 OF 2003

HEEREY, SUNDBERG & CRENNAN JJ
4 MARCH 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N919 OF 2003

On appeal from a single judge of the Federal Court

BETWEEN:	NAUJ APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HEEREY, SUNDBERG & CRENNAN JJ
DATE OF ORDER:	4 MARCH 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is 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	N919 OF 2003

On appeal from a single judge of the Federal Court

BETWEEN:	NAUJ APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HEEREY, SUNDBERG & CRENNAN JJ
DATE:	4 MARCH 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant, a citizen of Thailand, entered Australia on 16 December 2002. On 28 January 2003 she applied for a protection visa. A delegate of the Minister refused this application. The appellant sought relief under s 39B of the Judiciary Act 1903 (Cth). A judge of this Court dismissed that application: NAUJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1992.

2. The appellant now appeals against that decision.

   Appellant’s claims

3. In her visa application the appellant claimed that she feared persecution in Thailand on the grounds of her religion as a Muslim.  She said she was born in Lampong, in the north of Thailand, and received her education in Bangkok.  She and her family were “seriously discriminated against by the local community and the government offices”.  Since ninety-one per cent of Thai people are Buddhist they dislike Muslims. 

4. She moved to Songkhla in the south of the country in 1994.  There was a majority of Muslims in this area. Since 2001 Muslim extremists had bombed police stations, train stations, hotels and government offices and shot dead two police officers in an ambush just outside the appellant’s village.  The police force, who are Buddhist, then took revenge to search for Muslim killers.  “Both parties” (presumably police as well as Muslim extremists) destroyed the appellant’s family’s shop by bombing.  Her mother was injured and all goods destroyed.  The police rejected their claim for compensation.  The police arrested six Muslim killers.  The appellant fears the Muslim killers intend to kill her because they think her father has informed on them.  She does not think the authorities in Thailand will protect her and her family because they cannot protect their own police.  The local government in Songkhla will not protect them because they are Muslim.

   Tribunal decision

5. The Tribunal on 16 May 2003 wrote to the appellant care of her migration agent Ausway Migration & Education Consultants Pty Ltd (Ausway) advising that it had considered all the material before it relating to her application but it was unable to make a favourable decision on that information alone.  The Tribunal invited the appellant to give oral evidence and present arguments at a hearing on 24 June 2003.  On 9 June 2003 Ausway wrote to the Tribunal advised that they had received the invitation to the hearing but had been unable to contact the appellant because her home address had been changed without notice to them.  They returned the Response to Hearing Invitation form with the answer to the question “Do you want to come to a hearing?” marked in the box “No”.  Immediately after that box the form states “I/we consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me/us to appear before it”. 

6. The Tribunal, after noting that the appellant was educated in Bangkok and did not move to Songkhla until 1994, said:

   “Had she attended her hearing I would have put to her that it would be reasonable to expect that she could relocate in Lampang or in Bangkok, away from any Muslim insurgencies in the south of Thailand which may give her cause for concern, given that the US State Department Report on Human Rights cited by the delegate states that ‘The Constitution provides for the right of citizens to change their residence or workplace, and authorities generally respect this right of citizens to change their residence or workplace, and authorities generally respect this right in practice’.  The same source also refers to the freedom of religion enjoyed by the citizens of Thailand.  I therefore cannot accept that the applicant’s claimed fear is well-founded.”

7. The Tribunal stated that it was not satisfied on the evidence before it, that the appellant had a well-founded fear of persecution within the meaning of the Refugees Convention. 

   Decision of primary judge

8. The appellant’s amended application asserted:

   “1.The Tribunal constructively failed to complete the exercise of its jurisdiction

   Particulars

   a.The Tribunal failed to address the range of realities facing the applicant if she were to relocate in Thailand as it did not consider the applicant’s claim that she was seriously discriminated by the local community and by the government officers when she used to live in Bangkok.

   b.The Tribunal failed to take into account a relevant consideration:  the applicant’s claim that she was seriously discriminated by the local community and by the government officers when she used to live in Bangkok.”

9. However on the hearing before his Honour the appellant did not advance any argument along those lines.  His Honour noted that the appellant consented to the Tribunal making a decision without her appearing and this was, in his Honour’s words “accepting the inevitable – that the Tribunal would make a decision unfavourable to her on the papers”.  His Honour continued:

   “ On the hearing before me, I invited the appellant to indicate why she contended that the Tribunal’s decision should be set aside.  She said she did not wish to say anything in response to that invitation.  She did, however, ask whether she would be entitled to appeal against my decision!”

   It is difficult to conceive of a more egregious case of abuse of the availability of review of the decision-making process. 

   The first three sentences in the applicant’s statement of reasons for leaving Thailand in her application for the protection visa were as follows:

   ‘I have to leave from Thailand because there is no place for me to survive in Thailand.
   Due to Muslim religion for my family, we were seriously discriminated by the local community and the government officers when we used to live in Bangkok.  Since 95% of Thai people are Buddhist, they dislike the other people who believe Muslims.’

   This is the only claim which the applicant made of discrimination against her in Bangkok, and this was discrimination by the Buddhist majority against Muslims.  The Tribunal, however, correctly viewed the applicant’s true claimed fear as a fear of ‘the Muslim killers’ in the south of the country – after all, the applicant had lived there, not in Bangkok, since 1994.

   The applicant’s criticism of the Tribunal’s disposal of her application is without merit.”

   Appeal

10. The grounds of appeal are:

    “2.HIS HONOUR FAILED TO FIND THAT TRIBUNAL MADE DENIAL OF NATURAL JUSTICE.  TRIBUNAL’S DECISION WAS UNFAIR, PREJUDICED AND LACK OF PROCEDURAL FAIRNESS.

    3.I WAS MISLEADED (sic) BY THE TRIBUNAL’S LETTER AND THEREFORE DID NOT ATTEND THE HEARING.”

    Conclusion

11. His Honour did not deal with the allegation of denial of natural justice because it was not put to him.  Nor was there any submission to him that the Tribunal’s letter was misleading.  Thus no appellable error in his Honour’s decision is disclosed. 

12. In any event, the Tribunal plainly did afford natural justice to the appellant and its letter to the appellant, being in the usual standard form, was on its face in no way misleading.

13. The appeal will be dismissed with costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey, Sundberg & Crennan.

Associate:

Dated:             4 March 2004

Counsel for the Applicant:
Solicitor for the Applicant:
Counsel for the Respondent:
Solicitor for the Respondent:
Date of Hearing:	4 March 2004
Date of Judgment:	4 March 2004