SZGCA v Minister for Immigration
[2007] FMCA 1711
•26 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGCA v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1711 |
| MIGRATION – Review of a Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 476 FederalMagistrates Court Rules 2001 (Cth), rr.44.11(c), 44.12 |
| Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 42 Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286 W404/01A of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 255 WAJQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 79 WAJW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330 |
| Applicant: | SZGCA |
| First Respondent: | MINISTER FOR IMMIGRATION AND CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG464 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 9 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 26 October 2007 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Solicitors for the Respondents: | Mr J Dooley of Sparke Helmore |
ORDERS
The name of the first respondent be amended to read “Minister for Immigration & Citizenship”.
The application filed on 13 February 2007 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG464 OF 2007
| SZGCA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZGCA”.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Migration Act filed in the Sydney Registry of the Federal Magistrates Court of Australia on 13 February 2007 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 28 December 2006 and notified to the applicant on 18 January 2007. The Tribunal affirmed the decision of a delegate of the first respondent on 5 June 2004, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant seeks an order the respondents show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s.476 of the Migration Act. Pursuant to r.44.11(c) of the Federal Magistrates Court Rules 2001 (Cth), I dispense with a hearing under r.44.12 and set the matter down for final hearing.
A Court Book (“CB”) was prepared by the first respondent’s solicitors on 22 March 2007. I have marked it Exhibit “A” and it was read into evidence.
Background
The Tribunal decision of Mr S Norman, reference 060907777, provides the following background information at CB 76:
“The applicant, who claims to be a citizen of Malaysia, arrived in Australia on 21 April 2004 and applied to the Department of Immigration & Multicultural Affairs for a Protection (Class XA) Visa on 4 June 2004. A delegate decided to refuse to grant the visa on 5 June 2004. The applicant applied to the Tribunal on 7 July 2004 for review of the delegate’s decision. The Tribunal differently constituted purported to affirm the delegate’s decision on 25 February 2005. By order of the Federal Magistrates Court of 7 October 2006, that decision was quashed and the case was returned to the Tribunal to be determined according to law.
The first respondent’s written submissions effectively summarise the applicant’s claims that were lodged with his protection visa application of 4 June 2004. That application was accompanied by a three-page typed statement which set out his written claims: CB 25-27. The applicant claims to fear persecution in Malaysia for reason of his Chinese ethnicity and Buddhist religion. He claims he was discriminated against at school, mistreated by classmates and teachers, attacked by Muslim classmates while attending a Buddhist shrine, refused entry into university and unable to find satisfactory employment. The applicant also claims that Chinese people in Malaysia have few political rights, his family was driven out of their home several times by Muslim neighbours and that he was persecuted and tortured by the local police for “far-fetched reasons”. He also claims the Malaysian authorities continually refused his passport application.
The second Tribunal sent a letter to the applicant on 13 November 2006 inviting his comment on certain information. The information in that letter was essentially a copy of the previous Tribunal decision. The applicant was informed that, for similar reasons, the second Tribunal may draw adverse conclusions in relation to his protection visa application: CB 53-58. A separate letter also dated 13 November 2006 invited the applicant to attend a Tribunal hearing on 12 December 2006: CB 59-60. The applicant attended the hearing of 12 December 2006.
A convenient summary of the Tribunal’s findings is set out in the first respondent’s submissions and I adopt paragraphs 8 to 12 of those submissions for the purposes of this judgment:
8. The Tribunal was not satisfied that the claimed mistreatment suffered by the applicant gave rise to real chance that he faced any future risks of harm in Malaysia: CB82.3. It based its finding on the applicant’s own evidence that he claimed beatings by local authorities (including police), local persons (including Muslims) and the forced relocation of his family had occurred more than 15 to 20 years ago. Although the applicant subsequently claimed he was also subject to more recent harm, his evidence at a hearing ultimately confirmed that this was also a reference to the mistreatment that occurred 15‑20 years previously. The Tribunal was not satisfied that this gave rise to a perspective risk of harm in Malaysia. In the course of determining whether there was a real chance of future persecution, the Tribunal made findings about past events, as it was entitled and, indeed, bound to do. It then used those findings as the basis for its conclusion that there was no chance of future persecution. No error is revealed in this approach: MIEA v Guo (1997) 191 CLR 559 at 574-575.
9. The Tribunal noted that the applicant did not explain why he was unable to readily secure his Malaysian passport, although the Tribunal was ultimately not satisfied on the basis of the available evidence that this was sufficiently serious to constitute persecution or that the delay in obtaining his passport was for a Convention reason: CB82.5. The Tribunal’s conclusion that the applicant’s claims were insufficient to amount to persecution was open to it as part of its fact finding process: Prahastono v MIMA (1997) 77 FCR 260 per Hill J at 271.
10. The Tribunal did not accept the applicant’s claimed inability to obtain a university placement amounted to persecution, notwithstanding the existence of discriminatory that favour ethnic Malays and provide limited opportunities for non-ethnic Malays: CB82.7. It found on the basis of his evidence that the reasons for his inability to attend university was “principally, if not solely, for reasons of his incapacity to pay the relevant fees” and because the Tribunal took the view that if he had wished to pursue tertiary education, he would have taken more steps to obtain it in Malaysia: CB82.9. This finding of fact was uniquely within the jurisdiction of the Tribunal and is not within the jurisdiction of this Court to review: MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272.
11. Nor did the Tribunal accept the applicant’s belated claim have been the subject to continuing (and more recent) harm. The Tribunal noted that such claim was only made after the Tribunal advised the applicant that it need to consider his future risk of persecution. The Tribunal found the claim was made simply to enhance his prospects of evoking protective obligations and that if it were true, he would have made more effort to identify that harm: CB83.2.
12. The Tribunal was not satisfied on the basis of cited independent country information that ethnic Chinese Buddhists in general or the applicant in particular faced a real chance of persecution for a convention reason in the reasonably foreseeable future in Malaysia: CB83.5.
Application for review of the Tribunal decision
On 13 February 2007, the applicant filed an application for review in this Court under s.39B of the Judiciary Act. The application contains the following ground:
The decision involves jurisdictional error in that the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a convention reason was unreasonable, illogical and not based upon findings or inferences of fact that were supported by logical or reasonable grounds on the evident before the Tribunal.
At the first Court date, the applicant indicated that he wished to participate in the Court’s free legal advice scheme. The Court file shows that he was allocated a panel adviser, and that advice was prepared and provided to the applicant in April 2007. The applicant was also granted leave to file an amended application giving complete particulars of each ground of review relied upon by 4 June 2007. This was not complied with. At the commencement of the final hearing, I asked the applicant about an amended application. Initially, he said that he had asked someone to assist in the preparing one and that that person undertook to file the document in the Court Registry. However, upon further questioning, the applicant said that nothing had been prepared and that he had overlooked doing so.
Submissions and reasons
The applicant is a self-represented litigant who appeared with the assistance of a Mandarin interpreter. He was asked whether any written submissions, in accordance with the orders made on 28 June 2007 at the directions hearing, had been prepared and filed. He confirmed that no written submissions had been prepared. When invited to make oral submissions, the applicant declined.
Mr Dooley, appearing for the first respondent, filed written submissions which responded to the single ground of review in the application and set out at [9] above. Mr Dooley submits that the pleaded ground lacks particulars to explain the allegation that the Tribunal decision is unreasonable or illogical. Moreover, there is no basis for a claim that there is some legal error which may be established by reason of irrationality or illogicality in the Tribunal’s reasons: Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [9] per Gleeson CJ.
Mr Dooley submits that illogical reasoning does not in itself constitute an error of law or a jurisdictional error, nor does it necessarily indicate that there was only a purported exercise of power: NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 at [21]; W404/01A of 2001v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 255 at [35]; VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286 at [18]. Mr Dooley submits that the applicant has not established that any want of logic in the Tribunal’s reasoning, in and of itself, would constitute an error of law. Even in the High Court in Applicant S20/2002 did not exclude the possibility that such a ground might exist: Applicant S20/2002 at [35] –[37], [52], [73]-[74] per McHugh and Gummow JJ and at [142]-[146] per Kirby J. Since then the Full Federal Court has ruled on six occasions that “want of logic” does not constitute an error of law: NACB at [30], W404/01A at [35]; NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 42 at [25]; VWST at [16]–[18]; WAJW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330 at [31]-]32]; and WAJQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 79 at [22].
Mr Dooley submits that the Tribunal decision was both logical and reasonable when viewed in light of all the evidence which was before it. The Tribunal found that because the applicant’s key claims of harm had occurred 15-20 years earlier, he would not face future risk of harm in Malaysia. The alleged harm he suffered were for reasons which did not have a Convention nexus, and the Tribunal rejected the applicant’s claim of the most recent harm because of a lack of support in the country information for the claim. The Tribunal’s factual findings were drawn from its consideration of the evidence the applicant gave at the hearing and in his submissions to the Tribunal.
Mr Dooley submits that the Tribunal’s decision was not so unreasonable that no reasonable person could have come to it: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
The Tribunal took each of the applicant’s claims, considered them separately and then cumulatively to come to its final conclusion that the applicant does not have a well-founded fear of persecution for a Convention reason. Furthermore, the applicant’s own evidence contradicted his claim in some instances. His claim in relation to university admission contradicted his evidence of being unable to pay the university fees because of his ethnicity and religion. Similarly, the applicant acknowledged that the claim of being beaten related to incidents 15 to 20 years ago and were confined to a relatively short period of time when he left secondary school. In relation to being refused a Malaysian passport, the country information indicated to the Tribunal that this was not unusual and could apply to any Malaysian citizen. On the applicant’s own admission, his problems were associated with particular individuals in and around his home town in Malaysia and that these problems ceased to exist when he moved away from this area for work.
The Tribunal made the following finding at CB 83:
The applicant principally believed he would be targeted for harm in Malaysia for reason of his ethnicity and religion. The country information considered in the sources cited in this decision and elsewhere have not satisfied the Tribunal that ethnic Chinese Buddhists in general, or the present applicant in particular, have a real chance of being subject to persecution for that reason in the reasonably foreseeable future in Malaysia. Accordingly, the Tribunal does not accept the present applicant has a real chance of being subject to persecution in Malaysia, at least for any reason he claimed or implied.
This finding is consistent with the findings on individual issues raised by the applicant and referred to at [16] above. I agree with the submission made by Mr Dooley that it is not apparent from reading the decision as a whole that the Tribunal’s reasoning appears illogical. I am satisfied that the applicant has not identified any jurisdictional error and that on a fair reading of the Tribunal decision no error is revealed.
Conclusion
I am satisfied that the ground of review contained in the application cannot be sustained. The application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 26 October 2007
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