Srimonthon v Minister for Immigration and Multicultural Affairs

[2001] FCA 1023

FEDERAL COURT OF AUSTRALIA

Srimonthon v Minister for Immigration & Multicultural Affairs [2001] FCA 1023

DONPORN SRIMONTHON v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N257 of 2001

MADGWICK J
SYDNEY
13 JULY 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N257 of 2001

BETWEEN:	DONPORN SRIMONTHON APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	13 JULY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs.

3.Orders 1 and 2 are not to take effect for 28 days and within that period the applicant has liberty to apply to the Court on 48 hours notice.

THE COURT DIRECTS THAT:

1.The respondent’s solicitors take all reasonable steps to effect personal service of the orders within 21 days at the applicant’s address provided to the Court.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N257 of 2001

BETWEEN:	DONPORN SRIMONTHON APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	13 JULY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:

1. In this matter the applicant has failed to appear for the hearing.  She did, however, file an application seeking judicial review of a decision by the Refugee Review Tribunal (“the Tribunal”) dated 20 February 2001 which affirmed the decision of a delegate of the respondent Minister refusing the grant of a protection visa.

   Background

2. The applicant is a Thai national in her 30’s.  She arrived in Australia on 24 June 2000 and lodged a protection visa application on 4 August 2000.  She claims to have obtained a university degree and indeed to have taught at a university in Thailand, although she never named the institution.  The applicant alleges that she became a student activist in 1998 in the interests of the elimination of corrupt government in Thailand and the establishment of a truly democratic political system there.

3. The applicant claimed before the Tribunal that, by reason of her participation in demonstrations she was arrested, detained and tortured and that she became the "adviser in general" of a united student organisation which intended enlarging the scale of public demonstrations.  In consequence of this she claims that in September 1999 she was again arrested, detained for a couple of months and tortured, being released, she says, only after her family bribed the police.  She continued her protests in 2000 but had information from a governmental source that police had monitored her and her arrest was imminent.  She then decamped to Australia. 

   The Tribunal’s handling of the application and its decision

4. The Tribunal member was somewhat unimpressed with the applicant’s claims.  They were not assisted by the applicant having made a written claim that she was the target of the "Indonesian" government.  As the Tribunal member noted, the statement of claims provided by the applicant, accompanying her application for a review by the Tribunal, was a photocopied document and it was in this document that the reference to the Indonesian government occurred.  The Tribunal member did not note other matters that might legitimately have caused some departmental investigation.

5. The Tribunal member identified a significant number of apparently relevant pieces of information which she desired to have from the applicant and, in accordance with the Migration Act 1958 (Cth) (“the Act”) and Migration Regulations 1994, a request to the applicant to provide this information pursuant to s 424A was sent to the applicant at what the Tribunal member had been told was a Campsie address of the applicant.  The applicant had been advised, it appears, by a migration agent and a copy of the request for information was also sent to the agent.  There was no response to that invitation before the Tribunal member finally dealt with the matter, some lengthy period later, and the Tribunal member said, "none of the correspondence has been returned unclaimed”.  The Tribunal member also noted that the applicant did not provide a contact telephone number to the Tribunal.

6. It appears that the Tribunal member was under a misapprehension as to whether any of the correspondence emanating from the Tribunal had been returned unclaimed.  Counsel for the respondent Minister has fairly and properly indicated that there had been a mistake, and it appears that some correspondence was received back by the Tribunal on 26 September 2000.

7. It seems highly likely that, had the Tribunal member known that, in pursuit of what is obviously a policy of some beneficence in relation to giving applicants a real chance to say what they want to say to the Tribunal, the Tribunal member would have further considered the matter before deciding to proceed without the applicant. 

   Grounds for review

8. The application for review of the decision of the Tribunal is typewritten and does not complain of any lack of ability to be heard by the Tribunal.  The grounds for review set out in the application are:

   “1.The decision was induced or affected by actual bias of the officer    [Query whether this refers to the Tribunal member or the delegate of the respondent Minister who made the initial decision.]

   2.There was no evidence or other materials [sic] to justify the making of the decision.”

   Consideration

9. The application for review in this Court was filed on 16 March 2001 and the applicant provided a Hurstville address in connection with her application.  However, a subsequent letter from the Registrar of this Court, dated 17 April 2001, after the applicant's appearance in person with an interpreter at a directions hearing on 12 April 2001, was returned to the court as if sent to the wrong address.  Seemingly that return occurred on 17 May 2001.  There may have been some minor error in the address however, because on 17 May 2001 the Registry officer sent out a letter to a slightly different address and there is nothing to indicate that this was not received by the applicant.  I am told from the bar table that there is no reason to doubt that the barrister who had agreed to assist the applicant under the respondent Minister’s department’s pilot legal advice scheme in operation in New South Wales was unable to contact the applicant.  Nothing more has been heard of her. 

10. On the face of it, the Tribunal member's reasons for decision do not invite judicial review.  The Tribunal member pointed out that the applicant's claims lacked detail, for example, the name of her student organisation, the name of the larger united student organisation, the location of the demonstrations, and the location or precise times of her arrest and detention.  The claims are also inconsistent with earlier statements to the effect that she had no difficulty obtaining her passport in October 1999, had been convicted of no crime or offence, and was able to leave Thailand legally.

11. The Tribunal member also found that Thailand is a democratically governed constitutional monarchy.  Even if on the material before the Tribunal other fact finders may not have been quite so sanguine, it was a view that was open to the Tribunal.  The Tribunal member concluded:

    “Without further information and in the light of the country information the Tribunal is unable to be satisfied that the applicant was actively involved in student organisations which aimed to set up a real democratic political system in Thailand. …[and that]… the applicant was arrested, detained and tortured because of the protest activities she organised.

    The Tribunal is unable to be satisfied that the applicant has a well founded fear of persecution because of her imputed political opinion or for any other Convention reason.”

12. It is implicit in the Tribunal member’s finding of a lack of satisfaction about the claimed arrests and other alleged persecutory treatment that the Tribunal member also considered that the prospect that anything of this kind may have happened was so low that it did not impact on her judgment about a well founded fear of persecution and did not require a “real chance” analysis as mandated by Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379. In these circumstances, I think the proper course is to dismiss the application.

    Disposition

13. For the reasons given the application will be dismissed with costs, but I will order that the operation of the orders shall not take effect for 28 days and within that period the applicant has liberty to apply to the Court on 48 hours notice. 

14. There is nothing before the Court to suggest that the address given by the applicant to the Court in her application does not represent her current address.  Accordingly, I direct the respondent by his solicitors to take all reasonable steps to effect personal service of the orders within 21 days at that address, and also to notify the erstwhile migration agent of the applicant.  The respondent’s solicitor are to seek information, from the applicant’s agent as to any current address or means of communicating he or she may have with the applicant, if need be by a Thai interpreter over the telephone.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             31 July 2001

No appearance for the Applicant.
Counsel for the Respondent:	J Smith
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	13 July 2001
Date of Judgment:	13 July 2001