SZIMR v Minister for Immigration
[2007] FMCA 703
•10 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIMR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 703 |
| MIGRATION – Review of Refugee Review Tribunal decision – interlocutory dismissal of show cause application – no arguable case. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.425, 425A, 426A, 441A, 441G Migration Regulations 2001 |
| Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 NAHI v Minister for Immigration [2004] FCAFC 10 Randhawa v MILGEA (1994) 52 FCR 437 SYLB v Minister for Immigration [2005] FCA 942 |
| Applicant: | SZIMR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG176 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 10 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 10 May 2007 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms M Jolley Sparke Helmore |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG176 of 2007
| SZIMR |
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 signed on 11 December 2006 and was handed down on 4 January 2007. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The background to the applicant’s protection visa claims and the Tribunal decision on them are summarised in the Minister’s written submissions filed on 7 May 2007. I adopt with minor amendments as background for the purposes of this judgment paragraphs 3 through to 12 of those written submissions:
On 20 September 2005, the applicant lodged an application for a Protection Visa (Class XA). The applicant is a Buddhist of Chinese ethnicity and previously lived in Yala, (South Thailand), where she claimed that many Muslims were killing Buddhists. In May 2005 the applicant’s family received a letter (which they suspected was from Muslims), telling her family to leave Yala. She claimed police were alerted who patrolled the area for a few days and told her to be careful. The applicant’s cousin was subsequently killed by Muslims and she fled to Malaysia and then Bangkok. She claimed that she was unable to successfully relocate to Bangkok as she was unable to find work. She claimed potential employers assumed she was a rebel sympathiser and discriminated against her because she was ethnic Chinese and because she was from the South. The applicant felt very unsafe in Bangkok and approached the police, but the police said there was nothing they could do. She feared returning to Thailand because she claimed she would be killed by Muslims: court book (“CB”) 1 – 26.
On 21 October 2005, a delegate of the first respondent refused the application for a protection visa: CB 27 – 34. On 14 November 2005, the applicant applied to the Tribunal for review of the delegate’s decision: CB 36 - 39.
On 24 January 2006, the applicant presented oral evidence at a hearing before the Tribunal (previously constituted). On 23 February 2006, the Tribunal affirmed the decision of the delegate.
The applicant filed an application in the Federal Magistrate’s Court seeking review of the Tribunal decision on 14 March 2006 and on 5 September 2006, the matter was remitted to the Tribunal (by consent) by Federal Magistrate Barnes.
Tribunal’s approach and findings
On 28 September 2006, the Tribunal (presently constituted) wrote to the applicant pursuant to s.425 of the Migration Act 1958 (Cth) (“the Migration Act”), advising that it was unable to make a favourable decision on the information before it and inviting her to give oral evidence and present arguments at a hearing on 20 November 2006: CB 63-64. That letter was validly given and complied with ss.425A(2)(a), s.425A(4), s.441G and 441A(4) of the Act.[1]
The applicant attended the scheduled hearing and presented oral evidence before the Tribunal on 20 November 2006: CB 65. The Tribunal’s reasons disclose that the Tribunal’s doubts and concerns were put to the applicant during the course of the hearing: CB 82.6 – 84.5. The applicant also provided a copy of her passport to the Tribunal: CB 66.
The Tribunal found the applicant’s claims to be consistent with independent county information and accepted that her family had received a threatening letter: CB 84.7. However, it did not consider that the action by the police in response to her report of the letter, was inadequate or denied her protection: CB 84.7. The Tribunal accepted the applicant’s cousin was killed and that her parents went to Malaysia, however given the general level of civil unrest in Thailand, it was not satisfied that these events amounted to persecution as contemplated by the Convention: CB 84.8 – 10.
On the basis of the evidence as a whole, the Tribunal did not accept that any difficulties faced by the applicant when she was in Bangkok (such as the claimed discrimination and inability to gain employment) were related to a Convention ground: CB 85.1 – 5. It rejected her claim to have been accused of being a rebel sympathiser as this claim was based on the applicant’s perception of other people’s opinions: CB 85.5.
Based on the country information, the Tribunal found that the Muslim insurgency was restricted to the Southern provinces of Thailand. Considering the applicant’s age, ethnicity and religion, the Tribunal found that the applicant could settle successfully in other parts of Thailand: CB 86.1 – 87.5.
Accordingly, on 4 January 2007 the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa.
[1] It was sent to the applicant’s authorised recipient: s.441G. It was dispatched by prepaid post to the authorised recipient at the last address for service provided to the Tribunal by the applicant: s.441A(4). The period of notice given complied with the prescribed period, that is, 14 days after notification of the hearing is received: reg.4.35D(b) of the Migration Regulations 2001. Notification was taken to have been received 7 working days after the date of the invitation: s.441C(4)(a). The invitation contained a statement as to the effect of s.426A, that is, that if the applicant failed to attend the hearing, that the Tribunal may make a decision on the review without taking any further action to enable the applicant to appear before it.
These proceedings began with a show cause application filed on 18 January 2007. In that application the applicant asserts actual notification of the Tribunal decision when it was handed down. I find that the application was filed within time. The application is supported by a short affidavit. I accepted the factual component of that as well as the court book filed on 16 February 2007 as evidence.
When this matter first came before me on 19 February 2007 it was obvious that there was a problem with the application. The application on its face fails to assert any jurisdictional error. Nevertheless, the affidavit asserts procedural unfairness and error of law. However, to have any meaning those assertions would require particulars and no particulars have been given. I gave the applicant the opportunity to file and serve an amended application with particulars. She has not done so.
The applicant before the delegate and before the Tribunal had raised an issue of substance concerning possible persecution. The applicant comes from a troubled area of southern Thailand where there has been a Muslim insurgency in recent years. Her claims deserved careful consideration and before the Tribunal the claims were given careful consideration. The Minister as a model litigant has properly sought to address issues that might hypothetically arise even though the applicant has not raised them. I agree with and adopt with minor amendments for the purposes of this judgment paragraphs 13 through to 18 of the Minister’s outline of written submissions:
On 18 January 2007 the applicant filed an application and a supporting affidavit in the Federal Magistrates Court, for an order to show cause under r 44.05 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
The application does not contain any legal grounds of review. It complains that the Tribunal was wrong in saying that the applicant was not in danger and that she did not try to remain in Bangkok. The applicant is clearly inviting the Court to undertake a review of the merits of the Tribunal decision. To engage in fact – finding about the merits of the applicant’s case is not part of the function of the Court: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272; NAHI v Minister for Immigration [2004] FCAFC at [10].
Relocation
The applicant claimed in her protection visa application that if she were to return to Thailand, she would be killed by Muslims (CB 20.1) because Buddhists were being targeted generally: CB 84.2. The Tribunal was satisfied (on the basis of the country information) that the applicant, as a Buddhist, was at risk of attack from Muslim insurgents in the Southern provinces of Narathiwat, Yala, Pattani and Songkhla. However, it was also satisfied that Muslim insurgency was limited to those provinces and that the applicant would not be at risk of harm from Muslims beyond that area: CB 86.4. The Tribunal, satisfied that the harm feared was localised, then gave consideration to whether the applicant could relocate and if the applicant could expect protection in the remainder of Thailand.
In considering the possibility of relocation, the Tribunal correctly assessed the practical realities of relocation and the personal considerations of the applicant: SYLB v Minister for Immigration [2005] FCA 942 [17] – [31]; Randhawa v MILGEA (1994) 52 FCR 437 at [442 – 443]. The Tribunal considered whether, as a Buddhist, the applicant would be affected by Muslim insurgency in Thailand and found that she would not be at risk of harm beyond those Southern provinces: CB 86.3. It also considered whether she would face difficulties as an ethnic Chinese and as a Buddhist but found that neither her ethnicity nor religion would attract adverse attention: CB 87.2.
The applicant claimed that she would not be able to relocate because she did not have relatives, a home, or employment outside Yala and because she did not have the educational background to relocate. However, the Tribunal rejected this on the basis that the applicant was willing to relocate to Australia: CB 87.4. The Tribunal also considered the applicant’s ability to find employment outside of Yala and found that, given the applicant’s age, she would in time, find employment beyond the Southern Provinces: CB 86.9. The Tribunal was not satisfied that the applicant’s claimed inability to relocate in the past indicated that she would have difficulties in the future, on the basis that she did not remain long enough in Bangkok: CB 86.5. The Tribunal also considered whether the applicant would have the same level of state protection as other citizens in Thailand and found that an appropriate level of protection would be provided to people in the applicant’s circumstances: CB 87.3.
The Tribunal therefore complied with its obligation to have regard to the personal considerations of the applicant and no error is revealed in its relocation finding.
The applicant acknowledged from the bar table that she had received those submissions and that she had read them. She did not wish to make any oral submissions. Plainly, no arguable case of jurisdictional error arises from the application before the Court. Neither is any arguable jurisdictional error apparent on the basis of the Minister’s submissions and my own examination of the material. I find that the applicant has failed to establish an arguable case of jurisdictional error.
I will therefore order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules.
The application having been dismissed, costs should follow the event. The Minister seeks scale costs of $2,500. The applicant asked questions so that she could better understand her position in the event that a costs order was made but she did not resist the making of a costs order. I see no reason to depart from the court scale in this matter.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in accordance with rule 44.15(1) and item 1(b) of Part 2 of Schedule 2 to the Federal Magistrates Court Rules.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 16 May 2007
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