NAUJ v Minister for Immigration and Multicultural and Indigenous Affairs
[2003] FCA 1192
•23 OCTOBER 2003
FEDERAL COURT OF AUSTRALIA
NAUJ v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1192NAUJ v MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRSN 919 of 2003
LINDGREN J
23 OCTOBER 2003
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 919 OF 2003
BETWEEN:
NAUJ
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
LINDGREN J
DATE OF ORDER:
23 OCTOBER 2003
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the respondent’s costs, fixed in an amount of $3,500.
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 919 OF 2003
BETWEEN:
NAUJ
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
LINDGREN J
DATE:
23 OCTOBER 2003
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicant applies for review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the respondent Minister not to issue a protection visa.
The applicant did not accept the Tribunal’s invitation to appear before it. In fact, on 10 June 2003, having been advised by the Tribunal that it was unable to make a decision favourable to the applicant on the papers alone, she advised the Tribunal in writing that she did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear before it. In effect, she was accepting the inevitable – that the Tribunal would make a decision unfavourable to her on the papers.
On the hearing before me, I invited the applicant 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 applicant, a citizen of Thailand, arrived in Australia on 16 December 2002. On 28 January 2003 she lodged an application for a Protection (Class XA) visa bearing date 24 January 2003. On 25 February 2003 a delegate of the respondent Minister refused to grant the visa. On 19 March 2003 the applicant applied to the Tribunal for review of the delegate’s decision.
The claim which the applicant had made in her application for the protection visa was one of persecution on the ground of religion. Her claim was that she and her family were Muslims in Thailand in which the dominant religious faith is that of Buddhism. She claimed that there were certain violent incidents involving extremist Muslims in the southern province of Songkhla and that her family’s business was bombed, her mother injured and their goods burnt. Her claim was that when her father approached the local authorities he was detained, but released two days later.
The police subsequently arrested six Muslim extremists who had killed two policemen and the applicant claimed that the religious extremists falsely assumed that her father had given information to the police about them. She claimed that if she returns to Thailand she will be killed by the Muslim killers.
The Tribunal noted that the applicant had been born in Lampang in the north of Thailand, that she had received her primary and high school education in Bangkok, and that she did not move to Songkhla until 1994. She continued to live in Songkhla until she left Thailand. The presiding Member observed that if the applicant had attended the hearing, the Member would have put certain questions to her, such as, why it would not be reasonable to expect that she could re-locate away from the Muslim insurgencies in the south of the country. The Member also referred to the Thai constitutional right of citizens to change their place of residence and work and to follow the religion of their choice. The Member concluded that the applicant’s claimed fear was not well-founded.
In her amended application under s 39B of the Judiciary Act 1903 (Cth) the applicant asserts as the ground relied on that the Tribunal failed to ‘complete the exercise of its jurisdiction’ by failing to address the claim that the applicant was seriously discriminated against by the local community and by government officers when she used to live in Bangkok.
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.
The application will be dismissed with costs. On the application of counsel for the Minister, I fix the Minister’s costs at $3,500.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate:
Dated: 30 October 2003
The applicant appeared in person but was assisted by an interpreter Counsel for the respondent: T Reilly Solicitor for the respondent: Sparke Helmore Date of Hearing: 23 October 2003 Date of Judgment: 23 October 2003
0
0
0