SZAGT v Minister for Immigration
[2003] FMCA 502
•27 October 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAGT v MINISTER FOR IMMIGRATION | [2003] FMCA 502 |
| MIGRATION – Review of decision of RRT – where applicant raises claim not raised before Tribunal – where Tribunal concludes that any persecution is not sufficiently serious to fall within s.91R of Migration Act – where no other grounds put forward. |
Judiciary Act 1903 (Cth), s.39B
Re MIMA; Ex parte Durairajasingham (2000) 168 ALR 407
Prasad v Minister for Immigration [2000] FCA 286
| Applicant: | SZAGT |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 375 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 375 of 2003
| SZAGT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant in these proceedings is a citizen of Malaysia who arrived in Australia on 15 July 2002. On 22 August 2002 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.
On 23 September 2002 a delegate of the Minister refused to grant a protection visa and on 10 October 2002 the applicant applied for a review of that decision. The applicant attended for a hearing before the Tribunal on 31 January 2003 and on 4 February 2003 the Tribunal made its decision which it handed down on 25 February. The Tribunal's decision affirmed the original decision of the delegate not to grant a protection visa.
The applicant's claim to have a well-founded fear of persecution for the Convention reason of political opinion arose out of his allegation that he was an active supporter of the party, Parti Ke Adilan (Justice Party). This is the party which supports the former Deputy Prime Minister, Mr Anwar Ibrahim.
The applicant claimed that he was on several occasions beaten up and tortured for his active participation in demonstrations that were held throughout the country. He also said that he had helped to put up posters, enrol members and assist in organising meetings. He would clean the hall, arrange chairs and give out handbills.
The applicant claimed that he was arrested twice in February 1999 and detained for two weeks and in July 1999 he was detained for two-and-a-half weeks. He stated that he was not charged but the authorities kept interrogating and beat him. No official complaints about this treatment were made.
The Tribunal questioned the applicant about his knowledge of the Justice Party, including the names of other members and leaders. The Tribunal found that the applicant was unable to give it much information in this regard.
At [CB 53] the Tribunal states this:
“ I doubt that the applicant was arrested because he did not complain to the Human Rights Commission or make any other formal complaint of his claimed mistreatment. Further, he has very little knowledge of party events or personalities even from about the time of his arrest. His last claimed detention was in 1999. Even if he was arrested and detained I do not accept that he will in the future encounter the difficulties that are encountered by the serious and committed activists for justice and social and political change in Malaysia which appear to clearly amount to persecution. The applicant has made no effort to be involved in political matters relating to Malaysia in Australia. I do not accept that he would do so in Malaysia through the pressure of his friends as he had indicated he is no longer interested in politics. I am satisfied that his lack of political involvement and his stated lack of future interest in politics is an indication that his commitment to political activity is not strong.”
At [54] the Tribunal says:
“If the applicant had any political profile at all it was very low.
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 or other people 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 application which was made to this Court to seek review of the Tribunal's decision contained no matters upon which one could see the origin of a claim under s 39B of the Judiciary Act 1903 (Cth). It provided only the dates of the decision and the request that it be set aside. The affidavit filed in support proceeded no further.
When the applicant came before me he told me that the Tribunal did not get any information as to what happened in Malaysia as a whole. He claimed that it only looked at what happened in Kuala Lumpur and not in other places. He stated that he had given other information which indicated a different situation and that the Tribunal had only looked at limited resources. He went on to state that what he had told the Tribunal was true and that what had happened, had happened. He informed me that the Malaysian police can do anything and that if people pay them they can be made to do anything. Finally, he added a claim that his persecution had occurred because of his Indian ethnicity.
Mr Smith, who appeared on behalf of the respondent, indicated that the claim relating to the applicant's ethnicity had not been raised before the Tribunal and I am unable to find anything in the Green Book which refers to it. It is therefore impossible for me to deal with this aspect of the matter because it is not one which was raised before the Tribunal. It is the applicant's responsibility to make his own case.
To the extent that the applicant's claims indicate that the Tribunal failed to look for relevant information or had regard to irrelevant information, I am satisfied that it is a claim without foundation. The Tribunal cited at length between [CB 46] and [52] some detailed country information from a variety of sources. There was no suggestion in the information that it is restricted to Kuala Lumpur and it seems to me that if the applicant had a particular case relating to a particular place then it was his responsibility to bring it to the attention of the Tribunal.
Certainly it is true that the courts have found in such cases as Prasad v Minister for Immigration [2000] FCA 286 that there is in some limited circumstances a duty upon a Tribunal to obtain information which is easy to obtain, persuasive and obviously relevant, but there is no duty on the Tribunal to obtain information about which even the applicant is unable to be particular. I am satisfied that the Tribunal did not fall into the error of failing to consider relevant information or having regard to irrelevant information.
It is hardly necessary for the court to repeat yet again the decision in Re MIMA; Ex parte Durairajasingham (2000) 168 ALR 407 [67] where McHugh J said:
“ A finding on credibility is the function of the primary decision-maker par excellence.”
In fact it seems to me from a reading of this decision that the Tribunal did not specifically disbelieve the applicant; it felt that his claims for persecution did not constitute sufficiently serious action on the part of the authorities to fall within the definition contained in section 91R of the Act.
In all the circumstances I am unable to see any grounds upon which a review of this decision can be provided to the applicant. 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 Rules.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM
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