SZAGS v Minister for Immigration
[2003] FMCA 503
•27 October 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAGS v MINISTER FOR IMMIGRATION | [2003] FMCA 503 |
| MIGRATION – Review of RRT decision – application for protection visa – where applicant claimed to have a well founded fear of persecution on grounds of political opinion – where the application for judicial review did not outline any legal basis for review – where no basis advanced by applicant at hearing. |
Judiciary Act 1903 (Cth), s.39B
| Applicant: | SZAGS |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 374 of 2003 |
| Delivered on: | 27 October 2003 |
| Delivered at: | Sydney |
| Hearing date: | 27 October 2003 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | Applicant in person |
| Counsel for the Respondent: | Mr J Smith |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay respondent’s costs in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 374 of 2003
| SZAGS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant in this case is a citizen of Malaysia who arrived in Australia on 15 July 2002. On 19 August 2002 he lodged an application for a Protection (Class XA) Visa with the Department of Immigration & Multicultural & Indigenous Affairs under the Migration Act. On 17 September 2002 a delegate of the Minister refused to grant a protection visa and on 10 October 2002 the applicant applied for review of that decision.
The Tribunal arranged a hearing which took place on 31 January 2003. On the same day the Tribunal made a decision which it handed down on 25 February 2003 to affirm the decision of the delegate not to grant a protection visa.
The applicant claimed to have a well founded fear of persecution for the convention reason of political opinion on the basis that he was an active supporter of the Parti Ke Adilan (Justice party) in Malaysia. This is the party that supports the former Deputy Prime Minister Mr Anwar Ibrahim. The applicant alleged that on several occasions he had been beaten up and tortured for his active participation in demonstrations that were held throughout the country.
Before the Tribunal he stated that he had been arrested three times. In February 1999 he was detained for four days, in July 1999 and in March 2000 he was arrested but it is not clear whether or not he was detained at that time.
He claimed to have spoken at meetings on two occasions during his two years of active membership of the party, in February and July 1999. He said that he spoke at the end of one big meeting after Wan Azizia had spoken. He said that he was arrested each time after he had spoken.
The Tribunal questioned the applicant in some detail about his association with the Parti Ke Adilan and found that the applicant was not entirely familiar with its personalities. The Tribunal also asked him about his political activity in Australia where political freedom is granted. It appears that the applicant indicated that he had not taken the opportunity whilst in Australia to contact other Parti Ke Adilan members.
At [CB 54] the Tribunal said:
“I am not satisfied on the basis of the applicant's evidence and the country information referred to that the applicant has a profile that is sufficient to draw a response from authorities in Malaysia that would cause the applicant serious harm for reason of his political activity.
The test I must apply focuses on serious harm. The extent to which the applicant's personal circumstances should be taken into account is a question of degree, having regard to the totality of the circumstances. It is not enough for the applicant to establish that he would suffer discrimination or disadvantage in his home country or in comparison to the opportunities or treatment which he could expect in Australia. Persecution must constitute serious harm.”
The Tribunal came to the view that whilst it accepted that the Malaysian government did not have a perfect record on human rights in respect of persons with whom it disagreed politically, that the applicant was not such a person. Again at [CB 54] the Tribunal said:
“The applicant's claim that members of the ruling party may harm him because of his reputation is pure speculation and I do not accept that aspect of his claim as well founded as I am satisfied that his political profile was, at best, very low.”
The findings of the Tribunal were based upon its assessment of the applicant's evidence and its reading of the general country information concerning the situation in Malaysia. This country information is set out at length in the reasons for decision.
The applicant's case commenced with his application. This contains absolutely no information whatsoever upon which one could find a clue as to what matter under s.39B of the Judiciary Act 1903 (Cth) the court was being asked to look at. The affidavit in support of that document went no further, stating only that the applicant was a Malaysian citizen and giving the dates of the various decisions that had been made.
The applicant did not comply with the orders of the court concerning the filing of amended documentation and when he arrived in court today he was unable to give me any reason of his own as to why he believed that the Tribunal had been wrong in law in the manner in which it came to its conclusions in his case. He was given an opportunity to read the helpful written submissions of Mr Smith but after that was unable to say anything. I explained to the applicant that this court was not a court that was able to re-hear his application or to make any decision as to the facts.
In all the circumstances I did not call upon Mr Smith because it seemed to me that the applicant has not been able to demonstrate even a prima facie basis for any review.
I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,250 pursuant to Part 21, rule 21.02(2)(a) of the Federal Magistrates Court.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM
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