Ong v Minister for Immigration and Multicultural Affairs

[2001] FCA 1500

FEDERAL COURT OF AUSTRALIA

Ong v Minister for Immigration & Multicultural Affairs [2001] FCA 1500

GEOK LAN ONG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N1079 of 2001

MADGWICK J
27 SEPTEMBER 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1079 of 2001

BETWEEN:	GEOK LAN ONG APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	27 SEPTEMBER 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed

2.The applicant pay the respondent’s costs on an indemnity basis

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1079 of 2001

BETWEEN:

GEOK LAN ONG
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE:	MADGWICK J
DATE:	27 SEPTEMBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:

1. This is an application for the limited form of judicial review available in this Court under Pt 8 of the Migration Act 1958 (Cth) (“the Act”). The applicant seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 20 June 2001, which affirmed the decision of a delegate of the respondent Minister refusing her the grant of a protection visa.

   Background

2. The applicant who is a citizen of Malaysia applied for a protection visa on 13 October 2000.  She had arrived in Australia as a temporary entrant on 8 September 2000.  Her application was scanty.  On 19 October 2000, a delegate of the respondent Minister refused to grant the visa.  On 14 November 2000, the applicant sought a review of the decision of the delegate by the Tribunal.  The applicant’s claims were again scanty.  They were briefly that, being of Chinese ethnicity and following the Buddhist religion, she was discriminated against in Malaysia and feared for her safety there because of political instability, social conflict and possible chaos in the country.

3. The applicant was invited to give oral evidence before the Tribunal, but did not attend or respond to the offer in any way.  The Tribunal as it was entitled to do, made its decision without taking any further action to permit the applicant to appear before it.

4. The Tribunal member took the view, to summarise it in a way that sacrifices the detail and subtlety of the reasoning, that while the applicant is a member of the Chinese minority and might be discriminated against, the discrimination did not amount to persecution, and that while there were some restrictions in Malaysia on the followers of religions other than Islam, she was not denied the right to practise her religion nor would she otherwise face persecution in Malaysia for reasons of religion.  The applicant had not been able to point to any serious harm to her on account of her ethnicity or religion or any combination of that.

   Application to this Court

5. The applicant filed an application for an order of review 26 days after the Tribunal gave its decision. The grounds for the application were that the decision was induced or affected by actual bias and that there was no evidence or other material that justified the making of the decision. The latter assertion was accompanied by reference to section 476(1)(g) of the Act. The application contained no particulars of either of those grounds of review.

6. The applicant attended a directions hearing on 9 August 2001, at which she was directed to file and serve any amended application and any evidence upon which she proposed to rely on, by 7 September 2001, and to file and serve an outline of submissions not later than five working days prior to the hearing date.  No amended application, no affidavit and no outline of submissions was filed.  The applicant did not appear today.

7. There is no evidence of actual bias. 

8. Section 476(1)(g) is to be read together with s 476(4) of the Act. There was evidence before the Tribunal which on the face of it could justify all the findings of fact arrived at. In the absence of the specification of any particular fact or facts upon which the Tribunal based its decision, it is not possible to consider further the application of para (b) of s 476(4), nor indeed, for the same reason, is it possible to consider the further possible application of para (a) of that section.

9. No legal error of any kind suggests itself to me in relation to the Tribunal’s decision.

   Disposition

10. Mr Wigney, counsel for the Minister, in these circumstances asked that the application be dismissed, and that I order indemnity costs.  The application must be dismissed. 

11. In relation to indemnity costs it seems to me that in reality the applicant has treated the legal institutions of this country with contempt and has cynically manipulated the humanitarian processes put in place which, for the sake of appropriate treatment of genuine claimants, regrettably provide others with the means of staying here, whilst they assert merely colorable claims.  In these circumstances, I think it is appropriate to order indemnity costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             25 October 2001

No appearance by the Applicant.
Counsel for the Respondent:	Mr Wigney
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	27 September 2001
Date of Judgment:	27 September 2001