SZEMZ v Minister for Immigration - [2005] FMCA 1710

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEMZ & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1710

MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicants claim persecution in Malaysia on the basis of race and religion.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A; 438A; 474

Ram v Minister for Immigration and Ethnic Affairs & Anor (1995) 130 ALR 314
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10

First Applicant:

SZEMZ

Second Applicant:

SZENA

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2987 of 2004

Judgment of:

Emmett FM

Hearing dates:

9 August 2005 & 17 October 2005

Date of Last Submission:

17 October 2005

Delivered at:

Sydney

Delivered on:

23 November 2005

REPRESENTATION

The Applicants appearing on their own behalf

Counsel for the Respondent:

Mr G. Kennett

Solicitors for the Respondent:

Mr N. McLellan & Ms B. Mendelsohn, Blake Dawson Waldron

ORDERS

That the Applicants be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.
That the Refugee Review Tribunal be joined as Second Respondent.
That the applications filed in this Court are dismissed.
That the Applicants pay the costs of the First Respondent in the amount of $4000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2987 of 2004

SZEMZ

First Applicant

SZENA

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Application

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483A of the Migration Act 1958 (Cth) (“the Act”) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection visa to the applicants.
The applicant husband (“the Applicant”) is a national of Malaysia. The applicant wife is a national of India. Both applicants are ethnic Indian Hindus (“the Applicants”). They both arrived in Australia on 21 March 2004. For the purposes of these reasons reference to claims made by the Applicant are taken to include claims on behalf of both Applicants.
On 5 April 2004, the Applicants lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”). On 7 April 2004, the Delegate refused to grant a protection visa on the basis that the Delegate was not satisfied that the Applicants were persons to whom Australia owed protection obligations under the Refugees Convention as amended by the Refugees Protocol.
On 3 May 2004, the Applicants applied to the Tribunal for review of the decision of the Delegate. On 7 September 2004, the Tribunal affirmed the decision of the Delegate not to grant the Applicants protection visas.
On 20 January 2005, the Applicants filed an amended application before this Court (“the Amended Application”) claiming relief on the following grounds:
“That the RRT decision was effected to take into account a relevant consideration when it assessed weather the delegate of the Minister raised reasonable grounds for not granting a protection visa.
Particulars:
The tribunal did not properly consider in assessing the chance of my persecution and persecuted on my return to Malaysia based on the ethnic Indian Hindus as a member of particular social group in Malaysia. I was persecuted because by the authority. If I persecuted by the authority it is not possible for me any protection in Malaysia. I will be persecute if I return back to Malaysia because of my religious believe. It is a convention base persecution. I have no one to help me collect the supporting documentary evidence. I asked one of my friend to collect documents regarding my persecution. But he failed to collect. Sill I am waiting for documents. I attend the RRT interview and give my oral evidence. But the tribunal did not consider my claim only the country information. But the tribunal did not relay on Amnesty International report. Without the considering of my oral evidence tribunal made decision. The decision effeced by recent High Court decision. I will provide all in my written submissions.
It is true I did not collect relevant documentary evidences to prove my persecution. Because I have no one to help me collect more documents.
The Tribunal’s satisfaction that I am not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief.
The tribunal did not observe Migration Act 1958 properly to making the decision.
The Tribunal fail to consider my claims with the proper way which the migration Act 1958 provided in my claims.
I will provide more details after discuss with my pilot scheme barrister Julian Gormly.
Particulars:
The Tribunal did not provide me adequate particulars of the independent information in his decision.
I did not got an adequate opportunity to respond the substance of the information. Because I did not collect my documentary evidence.
The tribunal finding that the totality of the country information does not show that Ethnic Indian in Malaysia’s are persecuted in Malaysia.”

Legislative framework

Section 65(1) of the Act provides that the decision maker must not grant a visa unless satisfied that the prescribed criteria have been met.
Subsection 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is categorised as a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Australia owes protection obligations to a refugee on Australian territory.
Article 1A(2) of the Refugees Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Refugees Convention.

The Tribunal proceeding

Both Applicants attended a hearing before the Tribunal on 10 August 2004. At the request of the Applicants, the hearing was conducted without the assistance of an interpreter.
The Applicants claimed to fear persecution in Malaysia for reasons of race and religion.
Relevantly, the Applicants claimed that, around 2003, the Applicant took out a bank loan for the purpose of commencing a laundry business servicing hotels on the island of Penang. The Applicant claimed that, in 2003, the SARS epidemic in Asia had a negative effect on tourism, as a result of which he could not maintain repayments of the loan. The partners sought a loan from a private money lender (“the Lender”), described by the Applicant as a “loan shark”. However, the Applicant confirmed to the Tribunal that the Lender was State registered. The business did not revive and the partners were in default of the private loan. The Applicant stated that the Lender applied a punitive loan rate when they were unable to repay, as a result of which they were no longer able to repay at all.
The Applicant claimed that the Lender then began to use coercive means to reclaim the debt, including home invasion, assault and death threats. The Applicant stated that, although police were willing to assist, they were unable to protect him 24 hours a day and could only take action after an incident occurred.
Having first told the Tribunal that the police could not ascertain the identity of the Lender, the Applicant altered that statement following the Tribunal putting to the Applicant that the licence number of the Lender ought to have been on the contract. The Applicant then claimed that the police located the Lender who denied using criminal means to redeem his funds.
The Applicant stated that he did not require long term protection in Australia. He sought to be allowed to stay in Australia only for a number of months in order to be able to settle the debt.
The Applicant tendered, to the Tribunal, a hand written statement referring to an incident in Penang in 1998 when a Hindu temple was vandalised. The Tribunal noted that the Applicant did not describe any events arising from this incident that would suggest it was anything but an individual and isolated incident. The Applicant stated that the police did little to punish the offenders claiming that such conduct was typical of the way ethnic Malays treat the Indian minority in Malaysia. The Applicant asserted that it was this kind of incident that probably gave the Lender a sense of “moral superiority over him”. The Tribunal stated that it took that statement to imply that the Lender was Malay.
The Tribunal found there was no connection between the 1998 Indian temple incident and the Applicants’ problems with the Lender.
The Applicants claim fear of persecution in Malaysia for reason of their race. The Tribunal put to the Applicants that such a claim seemed “odd” when the Applicants were asking only to be protected under the terms of the Refugee Convention for a period of months.
The Tribunal noted that the Applicants were never personally involved in or directly affected by any event like the 1998 episode of the Penang temple. Before this Court, the Applicant disputed this evidence and referred to his statement saying a relative of his was killed. However, whether or not the Tribunal’s record of the Applicant’s evidence is accurate, it cannot be jurisdictional error where the Tribunal’s ultimate conclusion was not based on whether or not the Applicants were personally involved in or directly affected by the temple incident. This is because, at the heart of the Tribunal’s decision, is its finding that any illegal conduct by the Lender was not motivated by the Applicants’ race or for any other Convention reason.
The Tribunal found that the Applicants’ ethnicity and religion were not factors central to the Applicants’ claims, in that the Applicants’ problems with the Lender arose purely out of individual action and inaction. The Tribunal noted that the Applicant entered into the private loan agreement voluntarily, and that there was no evidence of any discrimination that led to the necessity for him to take out the private loan. Further, the Tribunal found that the Lender did not refuse to provide funds to the Applicants on the basis of their race, religion or any other Convention related reason, nor was the interest rate set at such a level as to reflect or indicate any relevant forms of discrimination. The Applicant agreed that the first breach of contract was committed by the Applicant.
The Tribunal noted that s.91S(1) of the Act requires the Tribunal to consider what is the “essential and significant reason” for the persecution claimed. The Tribunal considered whether “people who do not repay private loans according to their contract” might constitute a particular social group for the purposes of the Convention. The Tribunal found that in this case, the Applicants engaged in discreet and individual action, or lack of action. Further, and in any event, the Tribunal was not convinced that “people who deal with loan sharks” were capable of constituting a particular social group for the purposes of the Convention. The Tribunal noted that targets of extortion have not been regarded as a particular social group (Ram v Minister for Immigration and Ethnic Affairs & Anor (1995) 130 ALR 314 at 569).
Having regard to the evidence, the Tribunal concluded that the Applicants’ problems with the Lender were an individual commercial and legal matter, even though affected by criminal behaviour on the part of the Lender. In that context, the Tribunal found that the persecution feared is not Convention related.
The Tribunal then went on to consider whether there was a Convention nexus, even though it had found that the persecution was not for a Convention reason. The Tribunal noted that, if the relevant State fails to protect a person from persecution for a Convention related reason, such as a persons race or religion, then there can be a Convention nexus. However, the Tribunal found that the police were willing to assist, but that they were met with the denials of the Lender of the allegations, made by the Applicant, that the Lender was using criminal methods for recovery of the debt. The Tribunal noted that there is no evidence that Malaysian authorities are tacitly complicit in the harassment of the Applicants, let alone for a Convention related reason.
The Tribunal found that the strongest evidence, of the Applicants’ claims not being Convention related, arises from the Applicant’s evidence that he would require protection only for a few months. The Tribunal noted that the Applicant’s beliefs, skin colour and ethnicity accompany him through life and that they are “effectively immutable characteristics”.
Further, the Tribunal did not accept that the 1998 Penang incident made any difference to the way the Applicants were treated by the Lender or by the authorities.
The Tribunal opined that “the Applicant husband, confronted by the primary decision, which was based on a perceived lack of Convention nexus, has tried to shoe horn his personal, individual problems into an irrelevant one”. The Tribunal did not accept the Applicant’s explanation for not identifying “race” or “religion” as relevant factors in his primary application. The Tribunal was not satisfied that the Applicants face a real chance of Convention related persecution in Malaysia and for that reason was not satisfied that the Applicants are persons to whom Australia owes protection obligations pursuant to the Refugees Convention as amended by the Refugees Protocol.

The proceeding before this Court

In their Amended Application, the Applicants relied on one ground, namely, that the Tribunal “was affected to take into account irrelevant consideration when it assessed whether the delegate of the Minister raised reasonable grounds for not granting a protection visa”. That ground was followed by particulars, the first of which was more in the nature of a submission and inviting merits review which obviously this Court cannot undertake.
A second set of particulars made the following claims:
a)That the Tribunal did not provide adequate particulars of independent country information;
b)That such independent country information did not show that ethnic Indonesians in Malaysia are persecuted in Malaysia;
c)That the Applicants did not have an adequate opportunity to respond to the substance of the information because he did not collect any documentary evidence.

Particulars (a) and (b)

Under s.424A of the Act, the Tribunal is obliged to provide notice in writing to an applicant, prior to any hearing, of any material that is the reason or part of the reason for affirming the decision under review and invite the applicant to comment. Section 424A(3)(a) specifically excludes information in the nature of independent country information as being subjected to this requirement. It is open to the Tribunal to make what findings it deems appropriate arising out of the independent country information before it and these findings are finding of fact with respect to which this Court cannot interfere (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10 at [11]).
Accordingly, the particulars in relation to the independent country information are rejected.

Particular (c)

In relation to the Applicant’s claim that he did not have an adequate opportunity to respond to the information because he had no documentary evidence, I note that the Applicants arrived in Australia on 21 March 2004 and applied for protection visas on 5 April 2004. The Applicants submitted a statement in support of their applications for protection visas of less than 1 page, despite being offered the opportunity by the Tribunal to provide further material. On 3 June 2004, the Tribunal notified the Applicant that it had considered the material before it in relation to the application but was unable to make a decision in favour of the Applicants on that information alone. No further material was provided by the Applicants, nor did the Applicants seek to communicate to the Tribunal the existence of any documents they may be seeking, or any efforts they were making to do so.
The Applicants filed the Amended Application in this Court on 20 January 2005, alleging that there had not been sufficient time to collect documentary evidence. However, there was still no identification by the Applicants of the nature of any documentary evidence or any attempts made to collect that information. The hearing of this matter had been set down for 24 October 2005. No further evidence was submitted by the Applicants to identify any particular material that had not otherwise been available before the Tribunal together with any explanation as to why that may not have been available.
Accordingly, in the circumstances, this particular is rejected.

Other particulars

The Applicants’ Amended Application filed 20 January 2005, otherwise disagrees with the factual findings of the Tribunal.
The Applicant confirmed before this Court that the Tribunal had before it all the claims made by the Applicants, including a 1 ½ page handwritten document in which the Applicant claimed that a relative of his was slashed to death in the Penang temple incident. The incident in Penang in 1998 was not found by the Tribunal to have any connection with the Applicant’s problems arising out of dealings with the Lender. The Tribunal noted that “no matter how criminal the lenders response and no matter how persecutory that response may appear, the facts suggested that the mistreatment of the Applicant husband and his partners arose out of highly individualised circumstances.”
The Tribunal further noted that the Applicants had made it clear that they were never personally involved or directly affected by events like the 1998 incident at the Penang temple. The Applicant asserted that this finding by the Tribunal is not accurate in light of the hand written document identifying a relative of his that was slashed to death. However, the relevant finding of fact arising out of that incident by the Tribunal is that it could not find a connection between that incident and the Applicant’s difficulties with the Lender. Moreover, beneficial construction of the decision may lead one to be satisfied that the Tribunal was taking a literal view of the Applicants’ involvement in that incident.
The Tribunal made clear, in its decision, that it found that the persecution feared by the Applicants was not for a Convention reason.
The Tribunal went on to consider that, even if the persecution is for a non-Convention reason, a Convention nexus may arise if the relevant State failed to protect a person, for a Convention related reason, from such persecution. In this case, however, the Tribunal found that the police were willing to assist and any difficulties of prosecution resulted from denials from the Lender in response to allegations of unlawful methods of debt recovery. The Tribunal further found that there was no evidence that the Malaysian authorities were tacitly complicit in the harassment of the Applicants, let alone for a Convention related reason.

Further, the fact that the Applicants claimed that they needed protection only for a few months, whilst their financial situation was resolved, caused the Tribunal to find that the Applicants were not seriously concerned by the broader problems of race or religion identified in their claims. In any event, the Tribunal, having considered the independent country information, did not accept that ethnic Indians, or Hindus generally, faced a real chance of harm amounting to persecution in Malaysia.
The Tribunal concluded that the Applicants did not face a real chance of Convention based persecution were they to return to Malaysia.

Conclusion

The Tribunal’s findings of fact were open to the Tribunal on the material and evidence before it. This Court has no jurisdiction to conduct a merits review.
There is no jurisdictional error in the decision of the Tribunal. Accordingly, the decision is a privative clause decision, and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The applications filed by either or both of the Applicants in this Court are dismissed with costs.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S Riddle

Date: 10 November 2005