NBHG v Minister for Immigration - [2005] FMCA 744

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBHG v MINISTER FOR IMMIGRATION

[2005] FMCA 744

MIGRATION – RRT decision – Malaysian applicant – claimed discrimination for Chinese ethnicity and Buddhist religion – did not attend RRT hearing – no error found.

Migration Act 1958 (Cth), s.483A, Part 8
Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Applicant:

NBHG

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 2174 of 2004

Judgment of:

Smith FM

Hearing date:

24 May 2005

Delivered at:

Sydney

Delivered on:

24 May 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Ms B Rayment

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs in the sum of $3000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2174 of 2004

NBHG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Federal Court of Australia on 15 June 2004. The application does not identify what orders are sought, but I shall assume that the applicant seeks an order setting aside of a decision of the Refugee Review Tribunal dated 15 April 2004 and handed down on 11 May 2004. In that decision the Tribunal affirmed a decision of a delegate in the Department of Immigration refusing an application for a protection visa made by the applicant. The application to the Federal Court was transferred to this Court by Beaumont J on 8 July 2004.
This Court has jurisdiction which is the same jurisdiction as the Federal Court in relation to a matter arising under the Migration Act 1958 (Cth) pursuant to s.483A of the Migration Act. The powers of both Courts are subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, the limitations have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not, myself, have power to decide whether the applicant is a refugee and qualifies for a protection visa.
The present applicant arrived from Malaysia in December 2003, and on 27 January 2004 made an application for a Protection Visa assisted by an agent, Jack Meng Immigration. Attached to the application was a short statement in which the applicant claimed that he had a fear that if returned to his home country he would be discriminated against by the authorities in Malaysia for the following reasons:
The applicant’s family is Chinese Malayan. He claims to have experienced discrimination during his days in Malaysia. He had difficulties in finding a suitable job in Malaysia because of his ethnic background and because of his religion. He is a Buddhist while the majority of natives in the country are Moslem. He found himself constantly being turned down by his potential employers because of the above-mentioned two reasons. He is psychologically hurt by such unfair treatment. He claims that from as early “as a youngster” he “admired Western democratic system, its sound social and political system which is owned by the people, governed by the people and enjoyed by the people.” He says he hates those “radical policies issued by an ignorant imperious and despotic government” in Malaysia.
Because of the discrimination and prejudice the applicant received in the country due to its ethnic and religious background, the applicant was denied access to higher education. Therefore he was not able to secure himself a suitable employment due to the lack of a degree or qualification. He had to work as a junior chef most of his time. When he decided to open a restaurant, he was required by the local authority to pay a higher rent, and his application for a business loan was rejected again and again. The applicant claims that he had difficulties living a normal life as other native people did in Malaysia.
The applicant would like to seek protection in Australia where he could enjoy equal treatment and equal opportunity of employment, education and be free of racial and religious prejudice and discrimination.
No further information or corroboration of his claims was sent to the Department, and on 29 January 2004 the delegate refused the application. In reasons which were sent to the applicant, the delegate referred to the fact that the applicant's claims were:
…couched in very general terms and he has provided no evidence to support his claims that he has suffered discrimination of any kind as an ethnic Chinese Buddhist in Malaysia.
The delegate also thought that, even if the applicant did fear the religious ethnic, economic and political problems which he had claimed, “there is a full functioning legal apparatus and network of Human Rights organisations in Malaysia” from which he could seek redress.
The applicant, on 26 February 2004, lodged an appeal to the Refugee Review Tribunal. In his application he appointed Jack Meng Immigration as his nominated recipient for correspondence and generally to act on his behalf in relation to the case. He gave a home address and gave the address of Jack Meng Immigration as his mailing address. The applicant did not forward any additional information concerning his claims, but expressly relied upon the material presented with his visa application. In answer to the question “please tell us why you consider yourself to be a refugee”, he said “Please refer to my statement at DIMIA.”
On 19 March 2004 the Tribunal posted a letter to the applicant at his mailing and home address and also to his agent, indicating:
The Tribunal has considered all the material before it in relation to your application but is unable to make a decision in your favour on this information alone.
The letter said:
We now invite you and any persons listed above to come to a hearing of the Tribunal to give oral evidence and present arguments in support of your claims.
The letter indicated:
If you do not attend the hearing and the Tribunal does not postpone the hearing, it can make a decision on your case without further notice.
On 29 March 2004 a response to the hearing invitation was filed with the Tribunal signed by the applicant, in which he indicated that he did want to come to a hearing. However, the documents filed with the Court indicate that there was no attendance by the applicant on the appointed day and time. There is no evidence before me showing that any attempt was made by the applicant to contact the Tribunal to explain his failure to attend, nor to seek another hearing. In its reasons the Tribunal says:
However, the applicant did not attend the hearing or contact the Tribunal to explain his failure to attend. In these circumstance, and pursuant to s 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
I am satisfied that the Tribunal had power to proceed in that manner under s.426A, and am not persuaded that its discretion to do so has been exercised improperly. Although the applicant has been directed since June last year to file evidence in support of his present application, no evidence was filed seeking to challenge the Tribunal's account of how it came to decide the case by reference to s.426A.
When this aspect was raised by me today with the applicant, he asserted that he wrote a letter to the Tribunal indicating that he did not attend for fear of arrest. However, he has not shown me a copy of his letter, could not tell me the date that he claims to have sent it nor whether this was before or after the Tribunal published its decision, and has not presented nor pointed to any evidence to show that his assertion as to the sending of this letter might be true.
In its reasons, the Tribunal referred to the applicant's claims to have suffered discrimination in employment. The Tribunal said:
However, he was fully employed for many years prior to coming to Australia. His claims that he had problems because of his ethnicity are surprising because the Chinese are Malaysia's second largest ethnic group and "dominate the economy, monopolise commerce and trade and provide a large part of the professional and general labour force." (References omitted). There is insufficient evidence before the Tribunal for it to be satisfied that he was discriminated against as he claims.
The Tribunal then addressed his other claims of discrimination:
The applicant has given no details of his academic achievements and why he claims he was deprived of higher education opportunities. He has not given any details about why he was rejected and whether he in fact applied to Universities. There is insufficient evidence before the Tribunal, for it to be satisfied that he was discriminated against as he claims.
The applicant has provided no details concerning the limits placed on him in practicing his religion. The Tribunal lacks sufficient information about the details of his problems to be satisfied that he faces problems. The general situation in the country, suggests that this would not be a problem.
The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention.
I have considered the Tribunal's reasoning and am unable to identify any arguable jurisdictional error.
The applicant filed his application under s.39B on 15 June 2004 as I have indicated. It was not accompanied by an affidavit, and under the heading: "Details of Claims" it said:
1)The Refugee Review Tribunal (the Tribunal) has failed to realize the danger I am facing if I am forced to return to my home country. My claim of fear and the chance of persecution I raised for review were not properly dealt with.
2)
For fear of coerced deportation, I lost the opportunity to appear in person at the Tribunal and therefore lost the opportunity to fully explain my difficult situation and the reasons why I am seeking refugee status in Australia.

I have tried to find a lawyer to act for me. However, the legal practitioner charges too much fees that I can not afford. I will be seeking federal Court penal solicitors to provide an amended application in which I will fully particularise the ground on which my claims are based for the application of this review.
3)The decision paper from the Tribunal contains error of law and needs to be set aside by the court.
I am unable to find any ground of jurisdictional error arising from the complaints made in this document.
In relation to the complaint that claims were not “properly” dealt with, I consider that the applicant's claims were indeed properly dealt with insofar as the requirements of law are concerned. The Tribunal's assessment of his claims was a matter for the Tribunal so far as their merits were concerned.
In relation to the second complaint that, “I lost the opportunity to appear in person at the Tribunal”, as I have indicated above, the applicant has presented no evidence in support, despite being directed to do so. The direction was specifically made in short minutes signed by the applicant when he appeared before a Registrar assisted by an interpreter on 28 June 2004. Paragraph 2 required that:
The applicant file and serve an amended and fully particularised application together with an affidavit in support and any evidence upon which he proposes to rely on or before 26 October 2004.
I am satisfied that if the applicant had substance in the present complaint he would have been aware of the need to file evidence in support. I am not persuaded that there was any procedural flaw in the Tribunal's proceedings which vitiated its decision.
The third complaint in the application provides no particulars of any alleged error of law and I am unable to identify any by myself.
The applicant attended before me at a call over on 3 February 2005 when I set the matter down for hearing today. I am satisfied that I drew to his attention the fact that his case would be heard today, and gave him no reason to anticipate any adjournments would be granted.

I directed him that if he wished to file further written documents they should be filed 14 days before the hearing. The applicant has not filed any documents additional to his application.
He appeared today and claimed that a friend had filed a document on his behalf. He did not know what was in it and he did not have a copy. He said his friend was on holidays. He asked for an adjournment to give him more time. I refused the adjournment. In my view, the applicant has had ample time to prepare for today's hearing. I am not persuaded that he has any prospect of finding an argument with merit in relation to his application, if an adjournment were granted.
I endeavoured to focus the applicant's mind on the difficulties facing his case but the applicant disclaimed knowledge of the Tribunal's decision or how it had been arrived at. He was not able to put an argument identifying a ground of jurisdictional error.
For the above reasons I must dismiss his application.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 9 June 2005