NBJQ v Minister for Immigration - [2005] FMCA 1673

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBJQ v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1673

MIGRATION – RRT decision – Malaysian Tamil – feared arrest following fights with Malays – Tribunal found no Convention ground – no error in reasoning.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91R, 474(1), 483A, Pt.8

Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225

Applicant:

NBJQ

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG3494 of 2004

Judgment of:

Smith FM

Hearing date:

9 November 2005

Delivered at:

Sydney

Delivered on:

9 November 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms A Nanson

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The Tribunal be included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3494 of 2004

NBJQ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.39B of the Judiciary Act 1903 (Cth) which seeks judicial review orders in relation to a decision of the Refugee Review Tribunal (“the Tribunal”) dated 29 September 2004 and handed down on 20 October 2004. The Tribunal affirmed a decision of a delegate taken on 21 May 2004 which refused to grant a protection visa to the applicant. The initiating application was filed in the Federal Court and has been transferred to this Court by order of Stone J on 25 November 2004.
This Court has “the same jurisdiction as the Federal Court” in relation to a matter arising under the Migration Act 1958 (Cth) (“the Migration Act”) by reason of s.483A of the Act. The jurisdiction of both Courts is subject to limitations under Part 8 of the Migration Act. These have the effect that I do not have power to set aside the Tribunal’s decision and send the matter back to the Tribunal unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for a protection visa.
The applicant was directed at a directions hearing in November 2004 to file an amended application because his application did not properly identify grounds of jurisdictional error. He has not filed an amended application nor a written submission as directed. The Minister previously applied to dismiss the application for non‑compliance, but at a directions hearing on 6 June 2005 I declined to do that since the applicant had not received advice under the free legal advice scheme. He has subsequently received advice from Mr Killalea of counsel, although of course I do not know what was in that advice.
The applicant appeared today and has had the assistance of an interpreter. It is clear that he does not understand the limits on the Court’s powers, but has addressed me by complaining that the Tribunal did not properly understand his situation in his country of nationality, Malaysia. Similar criticisms are made in his original application, and it is unnecessary for me to repeat them in detail. I have appreciated the difficulty he has as a non‑legal person, and I have endeavoured to consider whether an argument is available to him on my own reading of the material.
The applicant arrived in Australia in March 2004. His application for a protection visa was lodged on 19 May 2004. It indicated he was a 25‑year‑old Malaysian national of Tamil ethnicity and Hindu religion. His application attached a statement which claimed:
I was actively taking part in anti Muslim activities in Malaysia and I was always tortured by the Muslim groups in Malaysia. The government was not very supportive of my activities and I received support from other Hindu groups. I undergone many times arrests and torture with my other friends in 2001.
He referred to unspecified threats received “due to my activities”, and said: “this has caused serious problems in 2004 January and with a friend of mine I decided to leave Malaysia”.
The applicant attended a hearing by the Tribunal held on 28 September 2004. A transcript of what happened is not in evidence, but the Tribunal gives a description in its reasons which I have no reason not to accept.
The Tribunal said that the applicant did not maintain some of the statements in his visa application, but gave an account which the Tribunal believed. This was that while he was living in Ipoh he had returned home to visit his family in Kuala Lumpur in 2001, and had become involved in a conflict between Indians and Malays following a clash between a Malay wedding and an Indian funeral. This had resulted in tensions, disputes and “the Indians then used to beat Malays whenever they were alone”. The Tribunal said:
The applicant indicated that by the time he came to Kuala Lumpur, Indians and Malays were beating each other up. He stated that no one in his family had been affected. However, a number of Indian youngsters had sustained injuries. The applicant stated that things got worse and the police became involved. He stated that the police imposed a curfew.
On the following day, an Indian person was found dead. The applicant claimed that “in revenge for this person’s death, he and others started beating up Malay youngsters”. After the leader of the Malaysian Indian Congress told them that they had to stop the conflict and make peace, things calmed down. However, he claimed that some Malays had made complaints to the police, and they had “started arresting people and he returned to Ipoh”. It was as a result of that incident that he claimed to fear arrest if he returned to Malaysia.
The Tribunal noted that the applicant did not maintain his previous claims to have been involved in politics, nor that an attempt to kidnap him had occurred, nor that he had promoted Hinduism in any significant way. The Tribunal said:
Overall, I am satisfied that the applicant’s oral evidence during the hearing – rather than the claims made in his protection visa application – represents his claims to refugee status.
It therefore did not accept some of the claims made originally.
The Tribunal did accept that the incident described by the applicant had occurred, that he had been involved in the way he described, and that the actions of the police had been as he described. However, the Tribunal considered that the police had behaved appropriately.
The Tribunal’s conclusion as to whether the applicant came within the protection of the definition of “refugee” under the Convention as modified by s.91R of the Migration Act was:
In my view, there are two relevant issues in this case. The applicant’s oral evidence clearly indicated that the only reason he fears harm is because he physically assaulted Malays. In my view, if the applicant were to be arrested for this reason, the essential and significant reason for this would be because he had committed an assault and not because of his race, his religion, his nationality, his membership of a particular social group or his political opinion. There is nothing in the evidence before me to suggest that, if the applicant were prosecuted for assault, he would suffer differential treatment serious and systematic enough to amount to persecution for a Convention reason. In the circumstances, I am not satisfied that the applicant’s claims give rise to a fear of persecution for a Convention reason.
In my opinion, it was open as a matter of law for the Tribunal to characterise the applicant’s concerns as not raising a Convention basis for his fears of return. Although the Tribunal has not expressly referred to s.91R at this point in its reasons, it did so earlier in its general discussion of the law. I consider it has applied that provision in a manner which was open to it and reveals no misconception of law. The Tribunal has considered whether there was anything about the police responses which would allow them to be characterised as “persecution” for a Convention reason (c.f. McHugh J in Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 at 258‑259).
The Tribunal gave a further reason for affirming the delegate’s decision. It was that the incident had occurred some three years previously. The applicant had subsequently lived and worked in Ipoh, and had obtained a passport which he had used to leave Malaysia through the airport at Kuala Lumpur. The Tribunal did not accept that he had been in hiding, and said: “I cannot be satisfied that there is a real chance that the applicant would be arrested if he returned to Malaysia”. I can see no error in the Tribunal’s reasoning on this issue which would amount to jurisdictional error.
For the above reasons, I consider that the decision of the Tribunal was not affected by jurisdictional error. It was therefore a privative clause decision for which relief is barred by s.474(1), and I must dismiss the application.

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

Associate: Lilian Khaw

Date: 25 November 2005