SZIET v Minister for Immigration - [2006] FMCA 1857

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIET v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1857

MIGRATION – Failure to issue a protection visa – no reviewable error.

Migration Act 1958 (Cth), s.474

High Court in Devries v Australian National Railways Commission (1993) 177 CLR 472

Applicant:

SZIET

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG261 of 2006

Judgment of:

Turner FM

Hearing date:

23 November 2006

Date of last submission:

23 November 2006

Delivered at:

Sydney

Delivered on:

23 November 2006

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent:

Ms K. Hooper of DLA Phillips Fox

ORDERS

That the application be dismissed.
That the applicant pay the first respondent's costs of $3300.00
That the name of the First Respondent be amended, deleting the words ‘and Indigenous’.
I direct that the registry not enter these orders until I have reviewed my reasons for decision.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG261 of 2006

SZIET

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application filed on 25 January 2006. It is seeking to review a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed a decision of the delegate to the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa.
The applicant was born on 28 February 1979 and claims to be from Malaysia and of Chinese descent and of Buddhist faith. The applicant arrived in Australia on 6 June 2005.
The applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 18 July 2005.
In this application he claimed that he was persecuted by the Malaysian government because of his Chinese ethnicity. This application was reviewed by a delegate of the Minister on 24 August 2005.
On 30 December 2005 the applicant filed an application for review of the decision of the delegate with the Refugee Review Tribunal. The applicant was sent a letter inviting him to appear before the Tribunal and that is in Court Book page 52. The applicant did not attend at the hearing.
On 22 December 2005 the Tribunal handed down its decision dated

1 December 2005 affirming a decision of the delegate to the Minister refusing to grant the applicant a protection visa. In considering the applicant's claims:
i)The Tribunal accepted on the basis of information provided in the visa application and the copy of the applicant's passbook, that the applicant is a national of Malaysia.
ii)The Tribunal accepted that the applicant was of Chinese ethnicity.
iii)The Tribunal noted that the applicant had provided only a brief and very general outline of his claims. He claimed that as an ethnic Chinese he was discriminated against by the government in Malaysia and by ethnic Malays.
iv)The Tribunal found that the applicant stated that he felt he did not receive a just and fair minimum salary where he was employed because the owner was a Muslim.
Given the lack of details the Tribunal did not accept that the applicant had suffered discrimination by ethnic Malays that constitutes serious harm on account of his Chinese ethnicity.
The Tribunal found that the country information confirmed that the “Malaysian government had implemented positive discrimination policies in favour of ethnic Malays in order to address the economic disadvantages suffered by him in the past. The country information does not indicate that these policies have been implemented for the purpose of persecuting ethnic Chinese or other ethnic groups or have resulted in the persecution of ethnic Chinese or other ethnic groups.”
The Tribunal found that “these policies were not intended to oppress those persons of a particular ethnicity.” It found that “any discrimination that the applicant may experience as a result of these policies does not constitute harm sufficiently serious to amount to persecution.”
The Tribunal concluded that it “does not accept that there is a real chance that the applicant will suffer discrimination by the Government or by ethnic Malays that constitutes serious harm because of his Chinese ethnicity, if he returns to Malaysia.”
The Tribunal continued: “The applicant claimed that he had attended demonstrations in support of Anwar Ibrahim and against the government but did not provide any details about when or where he attended such demonstrations. He claimed that he had received warnings from the police and from the authorities but no detail was provided as to the nature of the warnings or how often they were given.”
The Tribunal continued; “The applicant has not provided detail of any other authority which issued warnings to him apart from the police. Given the lack of details, the Tribunal did not accept that the applicant attended demonstrations against the government and in support of Anwar Ibrahim or that he was given warnings by the police or any other authority in relation to such activity.”
The Tribunal did “not accept that there is a real chance that the applicant will be persecuted because of his claimed support for Mr Anwar Ibrahim if he returns to Malaysia. The Tribunal did not accept the evidence before it that the applicant has a well-founded fear of persecution for a convention reason if he returns to Malaysia.”
The applicant then filed the application to this Court seeking review of the Tribunal's decision pursuant to the Migration Act 1958.
In his application the applicant set out two grounds as follows:
Ground 1:
The Tribunal accepted that “Malaysian government has implemented positive discrimination policies in favour of ethnic Malays, in order to redress economic disadvantages suffered by them in the past.” However the Tribunal concluded that “the country information does not indicate that these polices have been implemented for the purpose of persecuting ethnic Chinese or other ethnic groups, or have resulted in the persecution of ethnic Chinese or other ethnic groups.” The Tribunal then concluded that “these policies are not intended to oppress person of a particular ethnicity.” The Tribunal fell into error in making this finding.
In summary ground one is that the Tribunal committed a jurisdictional error in making a finding that the positive discrimination policies implemented by the Malaysian government was not intended to oppress persons of a particular ethnicity.
Ground 2:
The Tribunal found that there is no real chance that the applicant will suffer persecution because of his Chinese ethnicity if he returns to Malaysia. The Tribunal fell into jurisdictional error in making this finding.
The Court finds that both grounds object to findings of fact by the Tribunal. There is nothing to suggest that those findings were not properly open to the Tribunal. There is nothing to suggest that the Tribunal acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or that was glaringly improbable. That was the test applied by the High Court in Devries v Australian National Railways Commission (1993) 177 CLR 472 at page 479 per Brennan, Gaudron and McHugh JJ.
The Court finds that the Tribunal's decision is a privative clause decision and has not been affected by jurisdictional error. In such circumstances because of s.474 of the Act there is no jurisdiction for this Court to interfere. Accordingly, the application is dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Turner FM

Deputy Associate: Sarah James

Date: 14 December 2006