SZENY v Minister for Immigration - [2005] FMCA 1092

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZENY v MINISTER FOR IMMIGRATION

[2005] FMCA 1092

MIGRATION – RRT – Malaysian Indian fearing persecution and discrimination – no error found.

Migration Act 1958 (Cth), ss.91R, 474(1), 483A, Part 8

Judiciary Act 1903 (Cth), s.39B

NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 119
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Applicant:

SZENY

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 3050 of 2004

Judgment of:

Smith FM

Hearing date:

27 July 2005

Delivered at:

Sydney

Delivered on:

27 July 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Ms P Sibtain

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application is dismissed.
The applicant must pay the respondent’s costs in the sum of $3500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3050 of 2004

SZENY

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.483A of the Migration Act 1958 (Cth) which challenges a decision of the Refugee Review Tribunal dated 25 August 2004 and handed down on 21 September 2004. The Tribunal affirmed the decision of a delegate which refused to grant a protection visa to three people: a husband, his wife and daughter. The claims of the family were assessed by the Tribunal by reference to the experiences of the husband and the Tribunal referred to him as “the applicant” in its reasons. I shall do likewise.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction in a matter such as the present is under s.39B of the Judiciary Act 1903 (Cth) but is subject to limitations under Part 8 of the Migration Act 1958 (Cth). As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 the limitations on my powers have the effect that I cannot set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for a protection visa or for any other permission to stay in Australia.
In the present case the applicant and his family are Malyasian nationals who arrived in Australia in March 2004. They applied for protection visas assisted by an agent, Mr Mollah, on 10 May 2004. The applications included reference to the family's religion as being Christian, but in the section in which the applicant was asked why he left Malaysia he said:
As a Hindu religious minority, we faced persecution in Malaysia. It was not possible for me stay there. The government protection is not available for us. Under this systematic persecution I was forced to leave Malaysia. I will provide details later.
He made reference to general fears of “persecution, discrimination and even can be killed because we are not Muslim. Islamic fundamentalism is increasing in Malaysia and the government is patronising it.” No details were given of personal experiences to give a better foundation for fears on the part of the applicant and his family.
A delegate refused the application on 13 May 2004, and the applicant appealed to the Tribunal on 10 June, again assisted by Mr Mollah. The application did not contain further supporting material but said:
We will provide more detailed statements and supporting evidence to support my review applications later.
The applicant attended a hearing by the Tribunal on 24 August 2004. The transcript of what happened is not in evidence, but I have no reason to doubt the description given by the Tribunal in its statement of reasons. The applicant explained his family situation to the Tribunal and described his employment history following the gaining of a diploma in mechanical engineering. The applicant had obtained employment in Singapore, had worked in Penang for six months while his wife was in the United States, had been transferred by his employer to Johor Bahru, had changed employment while remaining in the area of motor car sales, and had become a manager for a car company for whom he worked in Malacca before coming to Australia.
The applicant told the Tribunal that while he was working in Penang there were racial problems, which he had not experienced but his friend had. He also described an incident when he reported car thefts to the police and had then been harassed by the perpetrators in retaliation. He believed that this led to an incident which he had reported to the police, in which he had returned home in February 2004 to be told by his wife that three people had thrown stones at his house. He presented a copy of a police complaint form in relation to this incident. He did not appear to have any complaints concerning his treatment by the police or Malaysian authorities.
The Tribunal said:
The applicant stated that the real problem for him is that he is concerned about the future of his daughter. He claimed that his daughter was not accepted into a Malay school. He stated that she went to a Tamil school. The applicant stated that he is also concerned about the possibility of terrorist violence and the rise of fundamentalism.
The Tribunal said that it put to the applicant that independent evidence did not support a conclusion that Malaysians of Indian ethnicity faced persecution in Malaysia. In its reasons it refers to country information concerning the situation of non Malays in Malaysia, and in particular concerning people of Indian ethnicity. This included information that generally “the Indians are economically and politically disadvantaged in relation to the country's majority population.”
Under the heading "Findings and Reasons" the Tribunal accepted that the applicant was a Malay national, and accepted that he was a truthful witness. It accepted that what he had told the Tribunal was true and that he had genuine concerns about returning to Malaysia. The Tribunal then sought to identify relevant elements in the claims made by the applicant to the Tribunal and considered whether individually or in combination there was a Convention ground for refugee status.
The Tribunal thought that the applicant's experience in 1996 of security measures during rioting in Penang between Hindus and Muslims did not amount to persecution for a Convention reason, and was not satisfied that the incident “currently gives rise to a well founded fear of persecution for a Convention reason”.
The Tribunal addressed the applicant's concerns about his daughter's education, and said:
I am not satisfied that the fact that the applicant's daughter went to a Tamil rather than a Malay school amount to persecution, or that it gives rise to a well founded fear of persecution for a Convention reason.
The Tribunal then dealt with the other aspects of the applicant's claims as follows:
I accept that the applicant was harassed by a person he reported to the police. I accept that this was an unpleasant experience for the applicant. However, the applicant’s evidence strongly suggested that he was harassed in revenge for having reported the person to the police, rather than essentially and significantly for reasons of his race, his religion, his nationality, his membership of a particular social group or his political opinion. Furthermore, the applicant’s evidence did not suggest that the harm he suffered from this harassment was so serious that it could be characterised as persecution for the purposes of section 91R(1) of the Act. In the circumstances, I am not satisfied that the applicant suffered persecution for a Convention reason because of this incident.
In any event, as I put to the applicant during the hearing, I consider that he could avoid further harassment by this person by not returning to live in Malacca. In relation to this, the applicant resigned from his employment in Malacca before leaving Malaysia and had lived in that city for only three years. The applicant has family in both Johor Bahru (where his wife’s family also lives) and Penang. The applicant has worked in both of these cities previously. In the circumstances, I consider that it would be reasonable for the applicant to live in one of these cities – or indeed in some other city in Malaysia – in order to avoid being harassed in Malacca.
I accept that the applicant is aware of and has witnessed acts of discrimination against Malaysians of Indian ethnicity. The independent evidence indicates that such discrimination does occur in Malaysia. The independent evidence also indicates that Malaysia’s Indian minority suffer considerable economic and social disadvantage. However, the independent evidence does not suggest that ethnic Indians in Malaysia suffer such mistreatment for reasons of their ethnicity that it can be characterised as persecution within the meaning of section 91R(1) of the Act.
I accept that living in Malaysia as a member of a discriminated-against ethnic minority would at times be difficult. However, the applicant has achieved a tertiary education. He has had steady employment over a significant period of time. His last position in Malaysia was as a manager. In my view, the applicant’s evidence suggests that he is in a significantly better situation than many other Indians in Malaysia and that any harm he has suffered in Malaysia for reasons of his ethnicity is not so serious as to amount to persecution for a Convention reason.
I accept that the applicant does not wish to return to Malaysia and that he has concerns for the future of his daughter. I also accept that the applicant fears terrorism. However, I have seen no independent evidence suggesting that members of Malaysia’s Indian minority are being targeted by terrorists, or that they would be unable to obtain adequate protection from Malaysian authorities were this to occur in the reasonably foreseeable future. Overall, I cannot be satisfied there is a real chance the applicant would face persecution in Malaysia for reason of his ethnicity in the reasonably foreseeable future. The applicant has not claimed to fear persecution in Malaysia for any other reason, and none is suggested on the evidence before me. It follows that I cannot be satisfied that the applicant has a well-founded fear of persecution for a Convention reason.
I have carefully considered the Tribunal's reasoning and am unable to identify it failing to address a claim put to it by the applicant nor an error in its reasoning materially affecting its conclusions and amounting to jurisdictional error.
The applicant has filed a number of documents in the Court taken from precedents which are frequently seen. These show little relevance to the present decision of the Tribunal. The application filed on 11 October 2004 contains a familiar litany of grounds of judicial review without particulars allowing them to be related to the proceedings of the present Tribunal. I invited the application to explain them to me and shall deal with the aspects which he expressly raised, but otherwise I do not think I need to address these grounds individually in my reasons.
An amended application filed on 31 January 2005 contains similar general complaints which I invited the applicant to focus at today's hearing, and I shall deal with his oral submissions below. I do not think any other point made in the amended application has sufficient merit to require me to address it expressly.
The applicant also recently filed a written submission which contains a jumble of contentions and purported legal submissions which I did not understand and nor did the applicant. I think he disclaimed reliance on this document. I have not found in it any point which I consider requires express attention by me in these reasons.
The applicant speaks and reads English to some extent and was also assisted today by an interpreter. He attempted to identify his real complaints about the Tribunal's decision. I think they can be addressed under four points.
The first point was made in response to my invitation to him to explain a complaint that: “The Tribunal made his decision in bad faith”. The applicant said that he had provided a lot of evidence to the Tribunal concerning his problems in Malaysia and had explained his concerns about what might happen to his family if he returned. He complained that the Tribunal had not considered those matters so as to find that he qualified as a refugee.
However, the applicant did not point me to any evidence suggesting that the Tribunal did not made a genuine attempt on its part to arrive at a decision about the application of the Refugees Convention upon an assessment of the material before it. I do not consider that he has been able to give any substance to complaints about bad faith and bias. I consider that the Tribunal has attempted properly to perform its statutory duty to review the delegate's decision. While I understand the applicant's concern about the outcome, I do not consider that his submissions addressing bad faith have identified any ground of jurisdictional error.
The second point which the applicant addressed was a complaint that: “The Tribunal denied the evidentiary proof of my claim”.
It is significant that the application chose this allegation as best expressing his concerns from the list of the grounds in his application. This is because in my view it reveals that the real substance of his concerns go to the merits of the assessments made by the Tribunal, and not to their legal validity. As I have tried to explain to the applicant it was open as a matter of law to the Tribunal to accept the truth of his evidence and yet reach an assessment that he did not qualify under the Convention definition of “refugee” as adopted under the Migration Act. I consider that the Tribunal has addressed the applicant’s claims and that its assessments were as a matter of law open to it and revealed no jurisdictional error.
The third point was made by the applicant by reference to a paragraph in a United States Department of State report which had been referred to by the Tribunal in its reasons. This stated (see CB.78):
The Government generally respected the human rights of its citizens; however, serious problems remained. The Government acknowledged that it restricted certain political and civil rights in order to maintain social harmony and political stability. Police killed a number of persons in the course of apprehending them, and there were deaths in custody as well. Other problems included police abuse of detainees, use of the Internal Security Act and other statutes to arrest and detain persons without charge or trial, persistent questions about the impartiality and independence of the judiciary, and restrictions on the freedom of the press, freedom of association, and freedom of assembly. There continued to be some restrictions on religious freedom and workers rights and instances of discrimination and exploitation of indigenous groups. Longstanding policies gave preferences to ethnic Malays in many areas. The country was a course and destination for trafficking in women and girls for the purposes of prostitution.
The applicant in his submissions accepted that he had not presented to the Tribunal a history of personally having encountered human rights abuses of the sort described in this paragraph, but pointed to the report of their recurrence in Malaysia as explaining a fear of return which he thought the Tribunal had not properly addressed.
I am not persuaded that the Tribunal did not address his fears about this, and the fact that the Tribunal did not extract this particular paragraph from the report does not persuade me to the contrary. The Tribunal included in its reasons extracts from the US State Department report which were of more relevance to the applicant’s claims.

I consider that, in view of the absence of relevant history on the part of the applicant, it was not obliged to give a more extensive discussion of the human rights abuses referred to. I'm not persuaded that the applicant failed to take into account any aspect of the applicant’s claims for refugee protection.
A subsidiary point made by the applicant was that he did not come to Australia planning to claim refugee status and that, if he had, he would have brought documents to support his claims. It is unclear to me what he intended to convey by that submission. In any event, the Tribunal has not reached its conclusion by rejecting the claims made by the applicant due to an absence of documentary corroboration, and I do not think that this point reveals jurisdictional error on the part of the Tribunal.
If his complaint implicitly was that the Tribunal itself should have investigated his claims more, then there are authorities to the contrary (see: NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 119 at [48], [56]).
The fourth point made by the applicant, which he said was his best argument, drew my attention to his concerns about discrimination in the obtaining of education in Malaysia, and in particular the avenues open to him in relation to the education of his daughter. He made a number of factual points concerning the situation in Malaysia which I do not consider I need to assess myself. They were all points going to the merits of the Tribunal's conclusion that it was not satisfied that the situation facing the applicant's daughter and the applicant himself in relation to education opportunities gave rise to a real chance of persecution coming within the definition of “refugee” as qualified by s.91R of the Migration Act. The Tribunal identified these issues and, in my opinion, its assessment of them does not reveal a ground of jurisdictional error.
For the above reasons I have not been persuaded that the Tribunal's decision is affected by jurisdictional error. The decision is therefore a “privative clause decision” within s.474(1) of the Migration Act and relief is not available to the applicant and his family. I must dismiss the application.

I certify that the preceding twenty nine (29) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 5 August 2005