SZCPN v Minister for Immigration
[2006] FMCA 436
•10 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCPN v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 436 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of Malaysia – claiming a well-founded fear of persecution because of harassment by supervisor at work – merits review – no jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.475A |
| Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421 Randhawa v Minister for Immigration Local Government & Ethnic Affairs (1994) 52 FCR 437 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 SVBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 |
| Applicant: | SZCPN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 251 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 10 March 2006 |
| Date of Last Submission: | 10 March 2006 |
| Delivered at: | Sydney |
| Delivered on: | 10 March 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
That the Refugee Review Tribunal be joined as Second Respondent to the application.
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 251 of 2004
| SZCPN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for a review of a decision by the Refugee Review Tribunal. The decision was made on 18th December 2003 and handed down on 15th January 2004. The Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa to the applicant.
The applicant is a citizen of Malaysia who arrived in Australia on
6th July 2003. On 20th August that year she applied for a protection class XA visa. That application was refused on 26th August.
On 8th September 2003 the applicant applied for a review of that decision.
The applicant has told the Court that she did not obtain advice from a migration agent. In her application she gave as her reason the fact that she was not happy with the decision of the Department of Immigration and Multicultural and Indigenous Affairs. She also indicated that she would provide a further written statement at a later time.
The applicant attended a hearing of the Tribunal which took place on 10th December 2003. At that hearing she told the Tribunal that she worked as a labourer on a rubber estate in Malaysia and remained in that employment until she left to come to Australia.
Her difficulties started in September 2001 when the applicant's supervisor, a Muslim man, asked her to marry him. She refused his offer saying that she wished to marry a man of the same religious faith as herself. The supervisor then threatened that he would make the applicant's life miserable if she did not marry him.
In a written statement she said that the supervisor commenced a campaign of harassment towards her and told the Tribunal that on one occasion he tried to assault her but she pushed him away and he slapped her. She claimed to the Tribunal that the man had threatened her and slapped her and pulled her hair on other occasions. She told the Tribunal that at least one other employee suffered similar harassment and one girl was so distressed that she had taken her own life.
The applicant travelled to India in January 2003 and returned to Malaysia on 31st January 2003. She continued to reside at her parents' home in Kalang and she resumed working for the same employer.
In her evidence to the Tribunal the applicant said that she continued to have problems with the supervisor once she returned to Malaysia from India and they continued until she left of Australia. She told the Tribunal that she had endured the supervisor's misbehaviour and harassment for a period of two years.
The Tribunal said, at page 67 of the Court book that the applicant did not, in her oral evidence, point to any specific event which served as a catalyst for her departure from Malaysia in July of 2003. She did not explain to the Tribunal why, when she returned from India in January 2003, she returned to live at her home and returned to work at the same workplace.
The Tribunal reported, at page 68 of the Court book, that the applicant said that she believed she could tell the estate manager about the harassment but did not know who she could trust. She went on to suggest that estate workers could not do anything about problems of that nature and did not claim that she actually had complained to the estate manager, nor did she make any mention of having complained to the police.
The Tribunal asked the applicant whether she had thought to move away from her local area. The applicant pointed out that she had done so by travelling to Australia. The Tribunal asked the applicant why she was unable to move elsewhere in Malaysia and avoid the threats and harassment. Her reply was that Islam was the dominant religion in Malaysia and whatever the Muslims say goes.
The Tribunal discussed independent evidence with the applicant which referred to the population make-up of Malaysia. The applicant told the Tribunal it was very difficult to live in a country where Islam was dominant. She said that if a Tamil person reported a matter to the police the response was that nothing could be done. The Tribunal raised the concern with the applicant that her claims in relation to her supervisor and his harassment of her did not appear to be convention-related. The Tribunal was of the view that although the applicant had referred to her religion, it had not been a factor in the supervisor's conduct towards her.
The Tribunal noted independent country information about the incidence of sexual harassment in the workplace in Malaysia.
The Tribunal noted at page 70, that there were still many cultural obstacles to women who tried to pursue sexual harassment charges. The applicant told the Tribunal that people from Islamic-based political parties in Malaysia did not hesitate to kill others. The applicant told the Tribunal that the supervisor still maintained an interest in her and had telephoned her parents to ask where she was.
The Tribunal, considered the question of persecution and whether it is well-founded, and noted the sweeping assertions made by the applicant in relation to Malaysian Islamic political parties and religion. At page 71 of the Court book the Tribunal noted that there was nothing in the independent evidence or the applicant's own evidence as it related to those matters that would support a finding that she faced a real chance of convention-related persecution in the future.
The Tribunal noted that the extent of the applicant's evidence as to her particular experiences and difficulties in Malaysia were confined to one individual, her work supervisor. Although the Tribunal was doubtful about the applicant's evidence over the length of time over which the applicant said she was subjected to sexual harassment by the supervisor, the Tribunal did accept that she was sexually harassed by this man.
The Tribunal noted that on the applicant's evidence the question of religion was not a factor in this man's conduct towards the applicant. The Tribunal did not find that the applicant suffered sexual harassment owing to religion. The Tribunal found that the applicant was not subject to harm by her supervisor for a convention reason.
The Tribunal went on to consider the question of what happens when a State fails to protect a citizen from serious harm. The Tribunal found, at page 72 of the Court book, that the independent evidence did not indicate that the government of Malaysia had been unwilling to take action in respect of sexual harassment of women in the workplace.
The Tribunal noted that the government was taking action in respect of workplace harassment and mechanisms existed which would allow women to report such matters. The Tribunal did note that there was obviously some distance to go in the area.
The Tribunal noted that the independent evidence did not suggest that there was a discrimination against women in relation to protection offered by the State in respect of instances of sexual harassment.
The Tribunal was not satisfied on the evidence that the sexual harassment of the applicant by her supervisor gave rise to a well-founded fear of convention-based persecution.
The Tribunal went on to note that although the applicant had given evidence of the harassing behaviour continuing over a period of two years, that the applicant took no steps to remove herself from the situation and took little or no action in respect of the man's conduct. The applicant did not seek employment elsewhere or move to another area.
The Tribunal found that the applicant's oral evidence did not point to any meaningful explanation as to why she did not or could not remove herself from the supervisor's sphere of influence.
The Tribunal noted that the applicant had relatives who lived some distance from her home and in fact, had a sister who lived in Kuala Lumpur. The Tribunal noted that the applicant gave no evidence as to why it would not be possible to live with one or other of these people. The Tribunal expressed the view, at pages 72 and 73, that it would have seemed an entirely reasonable course for the applicant to move elsewhere in Malaysia and change her place of employment but she did not take this course. Rather, the applicant seemed content to leave the country entirely without taking any steps or serious attempt to remove herself from the situation.
The Tribunal noted that the international community is not under an obligation to provide protection outside the borders of the country of nationality, if real protection can be found within those borders.
The Tribunal referred to the decision of Randhawa v Minister for Immigration Local Government & Ethnic Affairs (1994) 52 FCR 437, pp 440, 441. The Tribunal went on to say:
However, in referring to the issue of relocation I should not be interpreted as making an implicit finding that the applicant has a well-founded fear of convention persecution in her local area.
I do not accept that she has, for the reasons I have set out above. Rather, it seems to me, that this forms an additional reason as to why the applicant is not a refugee.
The tribunal found the applicant's oral evidence about her fear of harm associated with Islamic political parties to be general and vague and was not satisfied on the evidence that even if members of an Islamic political party or parties acted on her supervisor's instigation, that that would have given rise to persecution for a Conventional reason.
The Tribunal was not satisfied that the applicant was a refugee and affirmed the decision of the delegate to refuse the application for a protection visa.
The applicant commenced proceedings in this Court for a judicial review of that decision under s.39B of the Judiciary Act. I gave leave for the applicant to file in Court an amended application. The amended application, although dated 13th September 2004, does not appear to have been filed at Court prior to today. The applicant states in this document:
Now she is filing this amended application with additional grounds and requests that this may be added to the main application.
The applicant told the Court that she had assistance in preparing her amended application although the person concerned was not a lawyer. The applicant also told the Court that she had not obtained advice from a migration agent.
Despite the irregularity of the procedure, I will consider the original application filed on 3rd February 2004 and the amended application filed in Court today, as part of the one application. The original application contains four grounds. It is hand printed and the grounds appear to be as follows:
1. A denial of natural justice;
2. The RRT asked irrelevant questions on the interview;
3. The Tribunal was favourable to the Department of Immigration and Multicultural and Indigenous Affairs;
4. The Tribunal failed to make reference to the country report.
No particulars are provided of any of these grounds and I would comment that there is no evidence of any denial of natural justice or any favour given by the Tribunal to the Department of Immigration and Multicultural and Indigenous Affairs.
The fact that the Tribunal decision was unfavourable to the applicant and the fact that the Tribunal member raised her concerns with the applicant, that the circumstances referred to did not bring her within the refugee's convention, is not an indication of a denial of natural justice. If anything, the reverse is true.
As to the asking of irrelevant questions, there is no evidence of that - no particulars are provided.
As to the complaint that the Tribunal failed to refer to independent country information, the Tribunal decision makes it clear that the Tribunal did consider that information quite carefully.
The amended application contains 13 additional grounds.
Those grounds have been met by the respondent's submissions.
The first ground says the following:
The Tribunal has failed to analyse the matter with an open mind, and has approached the applicant's problem in a closed and predetermined state of mind.
I asked the applicant whether she was claiming that the Tribunal member was biased in some way and she said that that was not the case, rather that the Tribunal disregarded her evidence. As far as an allegation of bare faith is concerned, it is a serious matter and such an allegation should not be lightly made and must clearly alleged and proved. I refer to SVBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 and Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421 at 69. There is nothing before me which indicates any bias or lack of good faith in the tribunal's decision.
Grounds 2, 3, 4, 5, 6 and 7 are no more than a challenge to the factual findings made by the Tribunal. It is well established that factual matters are the province of the decision maker and so long as there is evidence upon which such factual findings can be made; there is no ground for a Court to make a finding of jurisdictional error. A Court conducting judicial review does not undertake a merits review of the Tribunal's factual findings.
Ground 8 says:
The Tribunal failed to see that the applicant has well-founded fear and the four elements needed for a definition of refugee is applicable for the applicant.
This is no more than a request for merits review and that ground also must fail.
The grounds 9, 10, 11 and 13 are no more than an attempt to seek a merits review and such review is not available to the Court. I would make it clear that ground 9 is saying:
The Tribunal having accepted that the applicant was sexually harassed should have accepted the applicant's statement.
There is no reason given as to why this should be so. Any more than in ground 13 should it be accepted:
The Tribunal failed to see that the applicant was nervous during the hearing and should have accepted her statement.
Ground 12 is a challenge to the relocation finding. The Tribunal considered the law on relocation and appropriately assessed the relevant test. It was open to the Tribunal to make the finding that it did about relocation. It should be made clear, however, that the Tribunal's finding on relocation was in any event an alternative finding. As I referred to earlier in this decision the Tribunal made it quite clear that the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a convention reason in her local area.
I am satisfied that none of the grounds claimed by the applicant have been made out. The submissions made by the applicant in Court today related to a reiteration of her factual complaints about the Tribunal hearing and the applicant's belief that if she were to return to Malaysia that she would surely be killed. The Tribunal did not accept that such a situation would exist and indeed, there was no evidence given to the Tribunal that would allow such a finding.
The applicant told the Court that she could not relocate anywhere in Malaysia because the supervisor was a Muslim and had an extraordinary amount of power and a great number of followers.
The applicant did not have advice from a migration adviser and she was not legally represented. She did apply to take advantage of the legal advice scheme provided for people seeking to challenge decisions of the Refugee Review Tribunal. The Court file shows that a referral was made. The applicant was unable to tell the Court whether she did or did not ever receive any legal advice.
I have read through the decision myself, mindful of the fact that the applicant is not legally represented. I am unable to discern any jurisdictional error. If the applicant had had the benefit of legal advice, it is very surprising for her to have believed that her claim of sexual harassment, distressing though I accept that that may be, was in any way able to come under the refugee's convention. The entire basis of the application for a protection visa appears to me to be misconceived.
The applicant asked the Court to send this matter back to the Refugee Review Tribunal and expressed the confidence that a further Tribunal hearing would produce a more favourable decision. That confidence, to my mind, is entirely misplaced and as there is no jurisdictional error apparent, there is no basis upon which the Court can refer the matter back to the Refugee Review Tribunal.
The decision is a privative clause decision, as defined under s.474(2) of the Migration Act and attracts the protection of sub-s. 1.
The application will be dismissed with costs.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 30 March 2006
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