SZGLU v Minister for Immigration - [2006] FMCA 1664

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGLU v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1664

MIGRATION – RRT decision – Malaysian claimed political persecution – failed to satisfy Tribunal – no jurisdictional error found.

Acts Interpretation Act 1901 (Cth), s.8
Migration Act 1958 (Cth), ss.418(3), 422B, 424A(1), 474(1), 483A, Pt.8

Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

Applicant:

SZGLU

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1447 of 2005

Judgment of:

Smith FM

Hearing date:

1 November 2006

Delivered at:

Sydney

Delivered on:

1 November 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms K Hooper

Solicitors for the Respondents:

Phillips Fox

ORDERS

The Tribunal is included as second respondent.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1447 of 2005

SZGLU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 3 June 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”). It seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 27 April 2005 and handed down on 19 May 2005. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
Section 483A was repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8).
The Court’s powers under s.483A are limited by Part 8 of the Migration Act, so that I do not have power to set aside the Tribunal’s 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’s refugee claims should be believed, nor whether he qualifies for a protection visa.
The applicant arrived in Australia in September 2004. A protection visa application was lodged by a migration agent on his behalf on 10 November 2004. The application explained why the applicant sought protection in Australia so that he did not have to return to Malaysia.
In short, he claimed that he had been arrested and tortured by Malaysian police, and been held in prison where he was mistreated, due to his political activities. It is not necessary for me to set out the contents of his claims, since he departed from significant elements in them when he attended the Tribunal hearing, as I shall explain. No detailed statement or corroboration was provided to the Department of Immigration, and the delegate refused the application on 30 December 2004.
The applicant lodged an application for review with the Tribunal on 2 February 2005, again employing the same agent. He forwarded to the Tribunal a document which was claimed to be an extract from a Malaysian newspaper with a translation. The cutting was headed “Police Wish to Contact 2 Indians Re Court Inquiry”. The body of the report, which was said to have been published in September 2004, said only that the police “wish to contact 2 Indians in relation to a case to be taken up for inquiry in the courts, tomorrow”. The names of two people are referred to, and the applicant claims that he is one of them. A contact telephone number for the police was stated. There is nothing in the report to indicate the nature of the police inquiry or the matter which was in the courts.
The applicant attended a hearing to which he was invited by the Tribunal, which was postponed once after the applicant submitted a medical certificate. The hearing which he attended was held on 21 April 2005.
In its statement of reasons, the Tribunal stated that the applicant presented at the hearing a statutory declaration which he said had been prepared by his agent, but which he told the Tribunal was not in fact a true statement of his claims. He also presented to the Tribunal a handwritten request for a further adjournment on the basis of a “severe headache, cold and fever”, but he told the Tribunal that this also had been prepared by his adviser and that in fact he did not feel ill and did not want the hearing postponed.
The Tribunal did not draw adversely from the admissions by the applicant that some of the material he had presented was untrue. It indicated that it allowed the applicant an opportunity to present his claims afresh, and it described the following claims as being made to it:
The Tribunal then asked the Applicant why he considers himself to be a refugee. The Applicant stated that in 1998, he was arrested. The Applicant stated that he had a friend who was associated with the Bakan party which was party in support of Anwar. The Applicant stated that there were attacks between groups in favour of Anwar and against.
The Applicant stated that in 1998, he was charged with murder and that he was sentenced to seven years in prison but that he was released in 2003. The Applicant stated that there had been riots in [village]. He stated that he was arrested after these riots and charged with murder. The Tribunal put to the Applicant that in order for the Applicant to be charged with murder there would need to be a particular person that he was thought to have killed rather that simply he was involved in violence during riots. The Applicant stated that he was thought to have murdered a Chinese person.
The Applicant stated that after this he spent some four years in jail but he was released in 2003 having just served four years of his sentence. The Applicant stated that he had a lawyer representing his case when he was charged with murder but that at the end the lawyer simply abandoned the case. The Applicant stated that the murder had taken place during the riots. The Applicant stated that the police had two witnesses and that the Chinese person had a fractured skull and for this reason the Applicant was guilty of murder.
The Applicant stated that he was released in April 2003 on good behaviour. The Applicant stated that he had been a counsellor on the block and for this reason he was released earlier. The Applicant stated that he continued to associate with his friend and that after this the police pursued him again.
The Applicant stated that the newspaper clipping presented to the Tribunal indicates that the police were wishing to question the Applicant. The interpreter was asked to read the document or newspaper clipping that the Applicant had provided to the Tribunal. The interpreter read out this document. The Tribunal put to the Applicant the document only indicated that the police were wishing to question two Indian persons but gave no indication about any particular charges etc to be laid. The Applicant stated that he was concerned that the police were after him again to lay charges against him and for this reason he decided to leave Malaysia and come to Australia.
The Tribunal asked the Applicant why the police would wish to pursue the Applicant and lay charges of murder or anything else against the Applicant. The Applicant stated that because he had put up posters for DAP. The Applicant was asked whether he was a member of DAP. The Applicant stated that he was not; he was simply helping a friend. The Applicant stated that he would put up posters which said DAP PPT. The Applicant stated he did not know the meaning of this slogan as he was not of a particular political persuasion but that he was just helping out his friend. The Applicant then stated that he was paid money to put up these posters and banners. The Applicant stated that he would paste the posters in place where you were allowed to and other places where you are not supposed to. The Applicant stated that sometimes people were annoyed with him or angry about him pasting posters.
The Tribunal pointed out to the Applicant that the Tribunal could understand that perhaps if he was putting up political posters that it might anger some people who are not of that political persuasion but the Tribunal had difficulties understanding the link to the Applicant’s claim of being imprisoned because of murder and also that the police were pursuing him further. The Applicant stated that the police were pursuing him because of his friend’s political persuasion.
The Tribunal raised with the Applicant its concerns that given that the Applicant was not of any particular political persuasion himself, given that he simply put up posters for a friend, the Tribunal did not understand why the authorities would wish to pursue the Applicant and lay false claims against him in respect to murder and/or other events. The Applicant stated that the police wished to retaliate against him. He stated that the police had verbally abused him; he also stated that in prison he was badly treated and tortured. He stated that the other inmates had tried to force him to convert to Islam.
The Tribunal said that the applicant told the Tribunal that all of his documents had not been presented to the Tribunal by his adviser, but it said that he was “vague as to what these documents were beyond the newspaper clippings”. The Tribunal said:
The Applicant was given the opportunity to present further documents to the Tribunal and also to present his passport. The Applicant stated that he wished to obtain further documents from his migration agent and that he would bring these documents to the Tribunal the next day.
The Tribunal said that the applicant did attend on the following day, but presented only his passport, and did not provide any further documents. I note that the Tribunal did not hand down its decision until nearly a month later. There is no suggestion in the evidence that the applicant during that time sought to present any further documents nor that he sought any further time to do this.
Under the heading “Findings and Reasons”, the Tribunal summarised the applicant’s claims which had been presented to it:
The Applicant claims that he served a sentence for murder and was released in April 2003. The Applicant claims that the murder charge was politically motivated. The Applicant claims that he suffered torture in prison and that Muslim inmates pressured him to convert to Islam.
The Applicant claims that he fears harm from the authorities of Malaysia should he return. The Applicant claims that prior to his departure from Malaysia the police were looking for him and that he fears imprisonment on return to Malaysia. The Tribunal finds as follows.
The Tribunal said that it accepted that the applicant “may have spent time in prison in Malaysia and that in these circumstances may have been subject to bullying from other inmates and or guards”. It said:
However the Tribunal does not accept that the Applicant’s incarceration came about by reason of an imputed political opinion or treatment that he received in prison was motivated by his perceived political opinion. The Tribunal does not accept this claim because the Tribunal considers that the Applicant’s evidence in respect to this claim was most equivocal and tenuous. The Applicant does not claim to hold any particular political views himself but merely claims to have assisted a friend in putting up posters, banners and the like in support of DAP. The Tribunal does not accept that this level of political activity would create animosity towards the Applicant such that false murder charge was brought against the Applicant. The Tribunal put this to the Applicant at the hearing and the Applicant responded to the effect that they were seeking to harm his friend through him. The Tribunal considers this explanation to be far fetched.
The Tribunal also said that it did not accept that the applicant on return to Malaysia faced harm amounting to persecution by reason of his religion, based on his experiences in prison. It also said that the newspaper report, which the applicant claimed was evidence that the authorities wished to question him, did not suggest that the questioning “relates in any way to an imputed political opinion or the Applicant’s race, religion, membership of a particular social group. Nor does the Tribunal accept that the authorities desire to question the Applicant in respect to their investigations amounts to persecution of the Applicant”.
The Tribunal concluded that it was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention as amended.
I have considered the Tribunal’s reasoning. It was brief and at times not fully explained, but I am unable to find any misapprehension by the Tribunal as to the claims in fact presented by the applicant, nor as to the effect of the relevant law in relation to those claims.
A transcript of the Tribunal’s hearing is not in evidence before me, and it is not possible for me to make findings as to the exact words used by the applicant when presenting his claims to the Tribunal. On the description by the Tribunal of the applicant’s claims, I consider that it was open to it not to be persuaded that he had made out a political reason for the hardships he claimed to have encountered in Malaysia.
The applicant’s original application to the Court did not specify any grounds which could amount to jurisdictional error. His amended application contained three grounds with three particulars, set out as follows:
1.That the tribunal failed to follow procedural fairness as required under section 424A (1) and section 418 (3) of the Migration Act 1958.
2.That the decision led to the omission of principles of natural justice while making a decision.
3.That an irrelevant notion taken into consideration leaving behind real aspects of the issues thus failed to take into account relevant issues.
Particulars: 1
The tribunal is indifferent to the newspaper report from Malaysia, translated text presented to the Refugee Review Tribunal (set out at Folio 16‑17 Tribunal file), about the police enquiry called for through the news media. The tribunal has further reports it to be an insignificant issue ignoring the consequences of such police enquiry without providing the reasons behind doing so.
The news contains that the Assistant Superintendent of Police officer Mr. James Anak Jonathan and the Police Mr. S.A.C. Hashim Mohammed Yousuf made a request calling the applicant to meet the police regarding the Johar Baru session court enquiry.
The very reason made out in the newspaper is evident unto itself creating suspicion about the nature of enquiry.
The tribunal fails to assess the real chance of persecution by the Police and departmental authorities of Malaysia by making the threat of life for me insignificant.
Particulars: 2
I was not provided the opportunity to present further documents to the tribunal and I was not given the opportunity to find a new advisor to support my claims to the Refugee Review Tribunal.
Particulars: 3
The Refugee Review Tribunal also refused to assess my medical condition and failed to recognize the sufferings and torture I have gone through in the prison of Malaysia. I am affected physically and psychologically by the inmates of the prison, mostly muslims and was unsure of myself in attending the Tribunal hearing which was more or less forced by the staff in the counter service of the RRT.
In relation to Ground 1, I am unable to identify any information which formed part of the reasons of the Tribunal which was not given to the Tribunal by the applicant. I therefore do not accept that a duty arose under s.424A(1). I am unable to identify any failure of procedure referable to s.418(3), even if that could give rise to jurisdictional error.
In relation to Ground 2, I shall address below the particulars of procedural fairness given in the application. I am unable to identify any other aspect of the Tribunal’s procedure which suggests a failure of procedural fairness, even assuming that such obligations survived s.422B.
I do not understand Ground 3, and it has not been developed by the applicant in any written or oral submission.
The three particulars appear to raise separate or discrete grounds. The complaint under Particular 1 is that the Tribunal overlooked or failed to assess the applicant’s claims by considering the significance of the newspaper report which was presented. However, in my opinion it is plain that the Tribunal did consider that report. In my opinion, it was open to it to find, assuming its genuineness, that it did not establish more than that the applicant was the subject of police inquiries. I am not persuaded that the Tribunal’s consideration of that piece of evidence revealed any jurisdictional error.
Particular 2 is not supported on the evidence before me. As I have indicated above, the Tribunal did allow the applicant the opportunity he sought to present further documents. The applicant today told me that he did obtain further documents from Malaysia which would support his refugee claim, but he conceded that these arrived after the Tribunal made its decision, so that he did not have them in time to show the Tribunal. He sought an opportunity to show them to the Tribunal at a fresh hearing. However, as I pointed out to him, I am unable to order this unless I am satisfied that the Tribunal made a jurisdictional error.
Particular 3 does not, in my opinion, have support on the material before me. The applicant did not present to the Tribunal evidence of a current medical condition as corroborative of his claims. The Tribunal has shown that it sufficiently considered his claim that he had been mistreated while held in a Malaysian prison. The Tribunal thought that the evidence was inconclusive as to the reasons for the applicant being in prison, and I consider that its lack of satisfaction in that respect was open to it.
Taking into account all the material before me and what the applicant has said to me today, I am unable to identify jurisdictional error affecting this Tribunal decision. The decision was therefore a privative clause decision within s.474(1) of the Migration Act, and I must dismiss the application.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 20 November 2006