SZHUG v Minister for Immigration
[2008] FMCA 732
•3 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHUG v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 732 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political and ethnic persecution in Malaysia – Tribunal found that while the applicant was detained and mistreated the Malaysian authorities had no convention related interest in him – whether the Tribunal decision was unreasonable and whether the Tribunal hearing was fair considered – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.91S, 363, 425, 426 |
| Minister for Immigration v Katisat [2005] FCA 1908 W360/01A v Minister for Immigration [2002] FCAFC 211 |
| Applicant: | SZHUG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3806 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 3 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 3 June 2008 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms K Hooper DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,400.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3806 of 2007
| SZHUG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 13 November 2007. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Malaysia and had made claims of political and ethnic persecution. Background facts in relation to the applicant's protection visa claims and the Tribunal decision on them are conveniently summarised in the Minister's written submissions filed on 22 May 2008. I adopt as background for the purposes of this judgment, paragraphs 3 through to paragraph 13 of those written submissions:
The applicant is a male citizen of Malaysia[1] who arrived in Australia on 10 January 2004.[2] The applicant applied for a Protection (Class XA) visa on 16 August 2005.[3] His claims were set out in a statement accompanying the application.[4] The application was refused by a delegate of the first respondent on 19 August 2005.[5]
[1] court book, (“CB”) 17
[2] CB 18
[3] CB 1
[4] CB 32
[5] CB 136
The applicant applied to the Tribunal for review of the delegate's decision on 24 August 2005.[6] By decision signed on 2 November 2005 and handed down on 17 November 2005, the Tribunal as then constituted affirmed the decision under review refusing to grant the applicant a protection visa.[7]
[6] CB 145
[7] CB 192
By Orders of 20 June 2007, Smith FM ordered that a writ of certiorari issue directed to the Tribunal quashing its decision, and a writ of mandamus issue directed to the Tribunal requiring it to determine the application according to law.[8] Smith FM found that the Tribunal had failed to consider the applicant's claim to have been harassed by the police for reason of his ethnicity.[9]
[8] CB 237; 243
[9] See CB 248 at [34]
The applicant attended a hearing before the Tribunal as constituted on the remittal on 17 October 2007.[10]
[10] CB 265
By decision signed on 23 October 2007 and handed down on 13 November 2007 the Tribunal affirmed the decision under review refusing to grant the applicant a protection visa.[11]
[11] CB 278
The decision of the Tribunal
The applicant claimed that the Malaysian authorities sought to detain him under the Internal Security Act (ISA) for reason of the applicant's political opinion and actual or imputed ethnicity.
The Tribunal accepted that:
· The applicant was a past member of the United Malay National Organisation and later the Justice Party in Malaysia, and that he had taken part in political activities as a result of those memberships.
· The applicant's father was of Indian ethnicity and his mother of Malay ethnicity, and that the applicant would be perceived as having some Indian ethnicity because of his speech and appearance.
· The applicant was remanded by police for three months, was released on probation, and was subsequently alleged to have failed a drug test resulting in further charges and interest in the applicant by the police.
· During the period of the applicant's detention reference was made to the applicant's ethnicity in derogatory terms and that the applicant was physically mistreated.[12]
However the Tribunal did not accept that any initial or continuing police interest in the applicant was for reason of his ethnicity or his political opinion or actions.[13] The Tribunal found that the evidence indicated that the applicant was of interest to the police because they believed the applicant was involved in drugs, and continuing interest in the applicant would arise from his failure to comply with earlier, lawfully imposed requirements, and perhaps a belief in the applicant's continued involvement in drugs.[14] The Tribunal dismissed the applicant's claims to the contrary as fanciful.
The Tribunal expressly rejected that the continued police interest in the applicant was for reason of his ethnicity. In so finding, the Tribunal referred to items of country information. It did not accept that derogatory language directed at the applicant while detained indicated that the police were interested in harming the applicant because of his ethnicity.[15]
The Tribunal did not doubt the existence of significant racial tensions in Malaysia.[16] However it did not accept that the country information indicated that the law enforcement and justice systems could be said to be discriminating against ethnic Indians, such that there was a real chance of them being persecuted for reason of ethnicity by the authorities.[17]
The Tribunal further considered that the nature of preferential programs (for ethnic Malays) did not of themselves persecute members of Malaysian society who were not ethnic Malay. The Tribunal found that such programs did not deny the rights of non-ethnic Malays to an extent serious enough to be considered persecutory.[18]
The Tribunal considered whether the applicant could establish a membership of variously posited particular social groups. In particular, the Tribunal considered the applicant's membership of 'the family of a person found to be involved in drugs' [the applicant's father], but found that the continuing interest in the applicant was not for this reason but because of the applicant's personal activity. In any event, the Tribunal considered that section 91S of the Migration Act 1958 (Cth) (“the Migration Act”) would require the Tribunal to disregard the harm of the applicant in this respect because the reason for the police interest in the applicant's father was not a Convention reason.[19]
[12] CB 294
[13] CB 294.7; 295.5
[14] CB 294.8
[15] CB 295.7
[16] CB 296.3
[17] CB 296.4
[18] CB 296.5
[19] CB 297.3
These proceedings began with a show cause application filed on 11 December 2007. It appears that that application originally contained two grounds, but the first has been obliterated by white text remover. The remaining ground is that the Tribunal committed a jurisdictional error in circumstances where its decision, as I understand it, was unreasonable. The application is supported by an affidavit which I accepted as a submission. The applicant asserts in the affidavit that the Tribunal made its decision too quickly and did not give him time to submit supporting documents and, further, that the Tribunal did not consider his witnesses.
I received as evidence the court book filed on 4 February 2008. In oral argument I asked the applicant why he considered the Tribunal decision was unreasonable. The applicant told me that the decision was unreasonable because the Tribunal failed to give him a sufficient opportunity to submit additional material. He tendered, and I accepted as an exhibit[20], a bundle of documents, which the applicant told me he had obtained at various times following the Tribunal hearing. It is apparent from faxed transmission numbers on some of those documents that the applicant received at least some of them between the date of signing of the Tribunal decision and the date of its handing down. Other documents appear to have either been created or have been received more recently.
[20] exhibit A1
The applicant asserted from the bar table that while he had sought and been given several weeks by the first Tribunal to submit additional material, and while he was unable to submit any material within that period, he had additional material concerning his family that he wished to obtain and submit to the second Tribunal.
I took the applicant to page 290 of the court book where the tribunal states in its reasons:
At the conclusion of the hearing, the applicant agreed that he would provide any further material he wished to have considered within a particular period. No further material was received by the Tribunal in this period.
I asked the applicant what his recollection of the period was. He was initially unsure but then said that he thought he had been given until 23 October 2007. That was the date when the Tribunal decision was signed. The applicant attempted to tender a one-page document, which he had prepared himself after listening to the Tribunal hearing tape. It was plain from reading that document that it had not been professionally prepared. The solicitor for the Minister objected to the tender of that document on the basis that it was not a verified transcript of anything that occurred at the Tribunal hearing. The document included a purported statement by the presiding member that he would only receive further documents from the applicant if provided by the following Monday, which would have been 22 October 2007, and that the presiding member did not intend to make a decision on the case prior to then.
If there was evidence that supported a contention that the applicant was misled by the Tribunal as to the period within which he might submit additional material, then that would support a proposition that the Tribunal did not comply with its obligation under s.425 of the Migration Act to provide a real hearing opportunity. It would not, in my view, support a contention that the decision of the Tribunal was unreasonable in the Wednesbury sense but it would probably, nevertheless, support a finding of jurisdictional error. The Tribunal is required to take into account material submitted by an applicant up until the time a decision is handed down[21]. The Tribunal cannot arbitrarily refuse to consider information that might be submitted between the date of signing a decision and handing it down.
[21] X v Minister for Immigration [2002] FCA 56 per Gray J at [23]
I declined to accept the purported transcript extract produced by the applicant because I was not satisfied that it was reliable. Federal Magistrate Nicholls made orders in this case on 19 March 2008 in which he provided the applicant with the opportunity to file and serve any affidavit containing additional evidence relied upon, including a transcript of a Tribunal hearing by 9 April 2008. The applicant did not provide a transcript within that time and the single page document he sought to tender at the hearing today could not be verified in the absence of the hearing tape, which was unavailable. I have no reliable evidence before me that the Tribunal misled the applicant as to the time available for him to submit additional material and no reliable evidence that the Tribunal refused to consider information submitted after the date of signing of the decision.
It is unfortunate that the Tribunal did not specify in its reasons the period referred to on page 290 of the court book as the period within which it was apparently agreed material would be provided. The applicant denied from the bar table that he agreed to any period and stated that a period was imposed on him. It would be a matter of concern if the Tribunal, in its reasons, did not accurately relate what occurred at the hearing. However, the material before me does not substantiate such a proposition.
Nevertheless, exhibit A1 establishes that the applicant now has additional material available that was not submitted to the Tribunal prior to the handing down of its decision. Some of that material at least was available before the Tribunal decision was handed down. It would, in my view, be appropriate for the Minister's Department to review the Tribunal hearing tape to determine whether in fact the applicant did agree to provide further information to the Tribunal within a particular time or whether, as the applicant asserts, the Tribunal simply imposed a period on him that expired on or about the time the decision was signed. If that were the case, it would support the proposition that the applicant may have been inhibited in submitting additional material after that date and the material forming exhibit A1 ought to be considered by the Department with a view to the Department providing advice to the Minister whether the Minister should consider substituting a more favourable decision for that of the Tribunal. That is a matter for the Department and the Minister.
The material before me does not support the applicant's contention that the Tribunal fell into jurisdictional error in relation to the provision of time for the submission of material to the Tribunal.
Even if jurisdictional error had been established, there would have been a question whether relief in the nature of a constitutional writ should be withheld in the exercise of discretion. The applicant has been in Australia since 10 January 2004. He has had the benefit of two tribunal decisions and has had, in my view, an ample opportunity to submit information in support of his claims.
The applicant also clarified that the witness he was concerned the Tribunal should have heard from was his father. I reject the applicant's contention that the Tribunal fell into error by declining to take evidence from his father by telephone. The Tribunal deals with that issue in its reasons, reproduced on page 290 of the court book:
The applicant explained that he wished the Tribunal to obtain oral evidence from his father in Malaysia and provided a telephone number to do so. He explained that his father had been released from prison. He wished his father to explain the things which had happened in Malaysia. When asked whether the Tribunal contacting his father could pose any risk to his father, the applicant explained that there was a risk to his father, however, they were prepared to take this risk. When asked the nature of the risk, the applicant explained that it was possible his father was still being monitored by authorities after his release from prison.
The Tribunal discussed with the applicant that it was not prepared to risk his father's safety by contacting him. The applicant was asked about the documentary evidence that he had referred to as being held in Malaysia. He explained that this was a letter from the applicant's uncle about the circumstances in which he was persecuted and also evidence that this had appeared in a Chinese language newspaper in Malaysia some time ago. The applicant's father had also written a letter about his circumstances. The applicant's family had told him that they had previously sent this information, however, the applicant had not received it and had to get a new one.
When asked why it would be the wrong view that the applicant and his father had been involved in drugs and this was the reason the police were interested in him, the applicant explained that the problem was that the police had framed him because he was an Indian. The police had failed to arrest him during his political activities because he had managed to escape on two or three occasions when they had attempted to arrest him. The applicant explained that he was known to police and they knew his face. This was what prompted the police interest in him and on the first occasion he was arrested he had been remanded for three months and was only released after his father confessed.
In my view it was open to the Tribunal to decline to take evidence from the applicant's father for the reasons the Tribunal gave[22]:
The Tribunal is of the view that it is now appropriate that a decision be taken in respect of this matter. The applicant has had a considerable period to gather information supportive of his claim and present this to assessing authorities. In respect of information it is claimed is held by the applicant’s father, the applicant has been given the opportunity to provide this to the Tribunal in documentary form which was said to be available at the time of the hearing. The Tribunal determined that it would not seek evidence from the applicant’s father directly because the applicant identified a potential risk to his father resulting from contact with authorities of a foreign government. The Tribunal is not prepared to contribute to risks to the applicant’s father if he is currently being monitored by authorities in Malaysia, nor place the applicant himself in some potential jeopardy which it could later be claimed arises from such direct contact.
[22] CB 294
The Tribunal needs to take care not to exacerbate any risk that may confront an applicant or a member of the applicant's family. The Tribunal has a discretion to obtain additional information and the question of risk is an appropriate consideration to take into account in considering the exercise of that discretion. The Minister deals with this issue in his written submissions in paragraphs 28 to 33. I agree with those submissions and incorporate them with minor amendments in these reasons:
Because of the potential risk to the applicant's father the Tribunal decided not to call him by telephone to hear his evidence.[23]
Section 426 of the Migration Act provides that if an applicant requests that the Tribunal obtain oral evidence from a person within seven days of receiving a notice under s.426(1), then the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence from the named person (s.426(3)).
The Full Federal Court decision in Minister for Immigration v Maltsin [2005] FCAFC 118 (Maltsin), considered the corresponding obligations on the Migration Review Tribunal (MRT). The decision in Maltsin establishes that where an applicant asks for a witness to give evidence, the Tribunal is obliged to at least consider whether it is appropriate to receive that evidence having regard to various factors.[24]
The evidence indicates that the applicant's request was made orally at the Tribunal hearing.[25]
However in Minister for Immigration v Katisat [2005] FCA 1908 the applicant asked for a witness to be called after the seven day period. The Court considered that the request was made either pursuant to s.363, or subject to a legitimate expectation that the evidence be heard. At paragraphs [61] and [62], the Court considered that the MRT was obliged to turn its mind to the request that the witness be called in a Maltsin sense. On the facts, the Court found that the MRT properly considered the applicant's request.
The present Tribunal was not required, by virtue of s.426(3), to take evidence (orally or otherwise) from the applicant's father, and genuine consideration was given to the applicant's request, regardless of the form in which it was made. It is clear that the Tribunal asked the applicant about what evidence the father was intended to give, recording that the applicant 'wished his father to explain the things which had happened in Malaysia.'[26] It is also apparent that the Tribunal discussed with the applicant the father's circumstances and the claimed incidents of persecution the father had suffered.[27]
Most importantly, the Tribunal discussed with the applicant the concerns it had about the father's safety should it contact him by phone,[28] which was ultimately the decisive factor for the Tribunal in its consideration of whether to take oral evidence from the father. The applicant conceded that there was a risk to the father, as it was possible that his father was being monitored by the authorities after his [the father's] release from prison.[29]
[23] CB 294.3
[24] See also NANJ of 2002 v Minister for Immigration [2002] FCA 1138 at [43] - [47] and [49] per Jacobson J and W360/01A v Minister for Immigration [2002] FCAFC 211
[25] CB 287.5; 290.4
[26] CB 290.5
[27] CB 287.5; 288.2
[28] CB 290.5 - 290.6
[29] CB 290.5
The applicant has clarified that he was not concerned about additional evidence from his uncle and indeed sought to explain an inconsistency between his uncle's evidence to the first Tribunal and his own.
I conclude that the tribunal decision is free from jurisdictional error. I therefore find that the Tribunal decision is a privative clause decision. I will dismiss the application.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $3,400. The applicant doubted his capacity to pay but the issue for me is whether the costs claimed have been properly and reasonably incurred. I am satisfied that costs of not less than $3,400 have been properly and reasonably incurred on behalf of the Minister when assessed on a party and party basis.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,400.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 12 June 2008
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