SZIQS v Minister for Immigration & Anor
[2006] FMCA 1492
•29 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIQS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1492 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant the applicant a protection visa – applicant is a citizen of Malaysia of Indian Tamil ethnicity and Hindu religion – no reviewable error. PRACTICE & PROCEDURE – Adjournment – refusal of adjournment – sufficient time to prepare for hearing. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.36, 424A, 474 |
| Prahastono v Minister for Immigration & Multicultural Affairs (1997) 77 FCR 260 Minister for Immigration & Multicultural Affairs v SZANS [2005] FCAFC 41 |
| Applicant: | SZIQS |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1062 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 29 September 2006 |
| Date of Last Submission: | 29 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 29 September 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
Application for adjournment refused.
The title of the First Respondent is changed to Minister for Immigration and Multicultural Affairs.
The Migration Review Tribunal is removed as Second Respondent.
The Second Respondent is the Refugee Review Tribunal.
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $2,900.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1062 of 2006
| SZIQS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
This is an application for review of a decision of the Refugee Review Tribunal that was handed down on 23rd March 2006. The Tribunal affirmed the decision of a Delegate of the Minister not to grant the applicant a protection visa. The applicant is a citizen of Malaysia.
He arrived in Australia on 2nd October 2005 and on 30th November he lodged an application for a protection (class XA) visa.
That application was refused on 20th December 2005. The applicant then sought a review of that decision from the Refugee Review Tribunal. He lodged his application at the Sydney Registry of the Tribunal on 6th January 2006. He did not provide any additional information with that application. The Tribunal wrote to the applicant and invited him to attend a hearing which was to take place on Wednesday, 1st March 2006.
The applicant attended that hearing and gave evidence with the assistance with a Tamil interpreter. He claimed to have lived in the Perak district in Malaysia. His ethnic group is Tamil and his religion is Hindu and his occupation is a hairdresser. He has had a long association with Hindu temples and organisations and since his childhood has received numerous threats from Muslim Malaysians.
On once occasion Muslims damaged his shop and threatened his life.
He left Malaysia and came to Australia in fear of his life.
The applicant told the Tribunal that his wife and children are still residing in Malaysia with his father-in-law. He told the Tribunal that he had experienced a lot of persecution because of his Hindu religion. In particular some Muslims had accused him and his colleagues of making too much noise when they met at the Hindu temple to worship.
They tried to reduce the noise level but local Muslims continued to complain. The applicant told the Tribunal that they made threats and would throw stones at him and his colleagues. He said that the threats included the statement that Malaysia is a Muslim country and that the Hindus should go elsewhere. He said these threats had started about one and a half years before he came to Australia.
He told the Tribunal that he eventually sold his hairdressing business but the Tribunal records at page 73 of the Court Book that he later said that he leased the business rather than having sold it. In my view nothing turns on that discrepancy. Previously the applicant had been able to rely on a Hindu friend of his father for support but regrettably that man died in 2004. As a result the applicant felt more vulnerable than he had in the past.
The applicant said that the people threatening him were a group of either five to six or maybe up to ten young Muslims aged between
20 and 25 years. The Tribunal records at page 74 of the Court Book that he had approached police about the threats but the police would not help him. The applicant said that he feared that if he were to return to Malaysia he would be subject to persecution and he said that threats had been made against his life and against his family.
The applicant told the Tribunal about stones having been thrown at him, threats to his life and harassment at his work place. Whilst he had not experienced actual harm he had been threatened with harm and feared harm on returning to Malaysia. The Tribunal asked the applicant about his family and he said that they were safe because they were living in a village which was predominantly a Tamil populated village. He said that he would not be able to live there because he would not be able to get sufficient work as a hairdresser.
The Tribunal referred to independent country information being a report from the United States Department of States on international religious freedom. The Tribunal quotes from that report on pages 74 and 75 of the Court Book. The report refers to the fact that approximately 60 per cent of the population of Malaysia practised Islam and 6 per cent practised Hinduism.
The report referred to certain intolerant actions by Malaysian Muslim groups and referred to remarks made by the former Prime Minister, Dr Mahathir in October 2003 criticising Jewish people.
These comments drew international condemnation and the Prime Minister who replaced Dr Mahathir, Abdullah Badawi, subsequently emphasised religious tolerance towards all faiths.
The Tribunal's findings and reasons are set out on pages 75 and 76 of the Court Book. The Tribunal accepted that the applicant is a Hindu of Tamil ethnicity and noted that Islam is the official religion of Malaysia and that Muslims form a majority in that country. The Tribunal accepted the applicant's account of being harassed by Muslim youths throwing stones at him and complaints being made about worshiping at the Hindu temple.
However, the Tribunal did not consider that those incidents of harm were of a degree or a kind that could be characterised as serious harm and described them as akin to minor discrimination and harassment. The Tribunal did not however accept that threats had been made against the applicant's life or members of his family. The Tribunal considered that the applicant had exaggerated the nature of the harassment by local Muslim youths.
The Tribunal sets out in the final paragraph on page 75 why the Tribunal did not accept the applicant's evidence on those points.
The Tribunal did not accept that the applicant faced harm in the reasonably foreseeable future or that he was forced out of business by local Muslim youths. The Tribunal described the applicant's evidence on that point as unconvincing.
The Tribunal also referred to the country information set out in the decision which indicated that relationships between different ethnic and racial groups in Malaysia were "generally amicable." The Tribunal did not accept that there existed a real chance of serious harm to the applicant on his return to Malaysia by reason of his Tamil ethnicity or Hindu religion.
It is for those reasons that the Tribunal did no accept that the applicant had a well founded fear of persecution for a convention reason and affirmed the decision not to grant a protection visa.
The applicant commenced proceedings in this Court by filing an application on 10th April 2006. In that application the applicant sought an order in the nature of certiorari setting aside the decision of the Refugee Review Tribunal and an order in the nature of prohibition requesting that the applicant should be allowed to remain in Australia until the decision of this Court.
The applicant came before the Court for the first time on
22nd May 2006 when directions were made to list the matter for final hearing today, 29th September. The applicant, during the course of the hearing, requested an adjournment for a few days in order to prepare further submissions. He indicated that he wished to undertake further study about his case and that he was hampered by living independently. The lawyer for the Minister opposed the application for an adjournment.
I considered the application but I have decided to refuse the adjournment on the basis that I consider that the applicant has had a reasonable amount of notice of the final hearing from 22nd May until 29th September which is a period slightly in excess of four months.
I note that the applicant had sought to take advantage of the legal advice scheme operated by the Refugee Review Tribunal and a referral was made to a barrister on 6th June 2006. For those reasons I took the view that an adjournment was not warranted.
The applicant filed an amended application on 27th June 2006 in which he sought writs of certiorari, mandamus and prohibition. He set out the following grounds of review. First that the Tribunal made a jurisdictional error by failing to take into consideration relevant material. The particulars of that claim were that the applicant had stated in his application for a protection visa his situation as a national of Malaysia and of Indian Tamil ethnicity who had been threatened and harmed by Malaysian Muslims and targeted by Muslim neighbours.
He set out fears that Malaysian Muslims would harm or kill him because of being an ethnic Indian Tamil and he had stated that he had a long association with Hindu Temples and organisations and had received numerous threats from Muslins since his childhood.
He claimed that the Tribunal had failed to take into account the grave situation in which the applicant found himself and thereby made a jurisdictional error.
The applicant further claimed that the Tribunal made a jurisdictional error by misdirecting itself as to the nature of its role and duties and responsibilities. The particulars of this claim were that the applicant had presented a vivid fear of persecution to the Tribunal but the Tribunal had ignored the possibilities of this persecution.
The applicant also claimed that the Tribunal had made a jurisdictional error by failing to follow the procedures set out in s.424A of the Migration Act.
The claim is that the Tribunal failed to provide particulars of information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision of the Delegate. The applicant claimed the Tribunal did not ensure that the applicant understood why the information was relevant and did not invite the applicant to comment on it.
The final ground of review is that the Tribunal made a jurisdictional error in its construction of the relevant law applicable in the case.
The particulars of this claim are that the applicant's fear of persecution came within the definition in the Refugees Convention as amended by the Refugees Protocol. The applicant claims that as a result he was a person who enlivened Australia's protection obligations under the Convention and thereby met the criterion set out in sub-s.36(2) of the Migration Act.
The applicant claims the Tribunal failed to apply the law by deciding against him and thereby fell into jurisdictional error. For the respondent it is submitted that the Tribunal decision is a privative clause decision and that no jurisdictional error has been made out.
The respondent submits that the Tribunal correctly considered the applicant's claims both as a result of his Tamil ethnicity and his Hindu beliefs.
The respondent submits that the Tribunal's assessment of the harm and the threats offered to him were more akin to minor harassment and discrimination rather than serious harm amounting to persecution.
This assessment of whether conduct is sufficiently serious to amount to persecution is a matter of fact and degree for the Tribunal.
The respondent submits that the Tribunal relied on independent country information which sets out the relationships between different ethnic and racial groups in Malaysia are generally amicable and was not satisfied that the applicant faced a real chance of serious harm on the basis of either his Tamil ethnicity or his Hindu religion.
As to the breach of s.424A of the Migration Act the first respondent submits that the applicant does not particularise that breach and submits that there was in fact no breach. The respondent submits that whilst the Tribunal referred to an inconsistency in the applicant's evidence this information fell within the exception provided in
sub-s.424A(3)(b) as it was information given by the applicant in his oral evidence for the purpose of his application.
The bases of the Tribunal's decision were the applicant's evidence to the Tribunal and the country information to which I have referred.
I have considered the applicant's claims. The applicant attended the hearing and was offered the opportunity to provide oral submissions in support of his application. He relied on what was put in his written material.
The Tribunal decision was based on the Tribunal's assessment of the applicant's evidence given to the Tribunal on the hearing day and on the independent country information referred to on pages 74 and 75 of the Court Book. The Tribunal did, in my view, take into consideration the relevant material set out in the applicant's claims. The Tribunal considered the applicant's claims not only as an Indian of Tamil ethnicity but as a follower of the Hindu faith.
The Tribunal considered each of those claims and was not satisfied that individually or collectively a well founded fear of persecution had been made out. The Tribunal did accept the applicant's account of the hearing of harassment by some Muslims but did not consider that the incidence referred to amounted to more than minor discrimination and harassment. Such an assessment is a matter of fact for the administrative decision maker.
I am referred to a number of decisions including Prahastono v Minister for Immigration & Multicultural Affairs (1997) 77 FCR 260 at [268] and a recent decision of Minister for Immigration & Multicultural Affairs v SZANS [2005] FCAFC 41 at [50] to [53]. As to the claim of a breach of s. 424A of the Migration Act the reasons for the Tribunal affirming the Delegate's decision were the applicant's evidence to the Tribunal and the independent country information.
The independent country information, being the report from the United States Department of State is quite clearly information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant is a member. As such it falls within the exceptions set out in sub-s.424A (3) (a).
The applicant's evidence to the Tribunal is quite clearly information that the applicant gave for the purpose of the application. It therefore falls into the exception contained in sub-s.424A (3) (b) of the Migration Act. In my view no breach of s.424A is made out.
It is a fact that the Tribunal did not accept parts of the applicant's evidence. The Tribunal set out at page 75 that it considered that the applicant had exaggerated the nature of the harassment that he has suffered. The Tribunal did not accept that threats made against the applicant's life were real and used that as a basis for finding that the applicant did not face harm in the reasonably foreseeable future.
That is no more than an assessment of credibility. It is well established that assessment of credibility is a factual finding and that falls squarely within the province of the administrative decision maker, in this case the Tribunal. In my view there was evidence upon which the Tribunal could have made that finding
As Ms McNamara for the first respondent pointed out it is for the Tribunal to make that assessment and it is not for the Court to make its own assessment based on those facts. I am satisfied that no jurisdictional error has been made out. I am mindful of the fact that the applicant is not legally represented at the hearing and I have considered the Tribunal's decision independently in an effort to ascertain whether any other jurisdiction or error, not referred to by the applicant, can be made out. I am unable to discern any other jurisdictional error.
As I am satisfied that no jurisdictional error has been made out it follows that the Tribunal decision is a privative clause decision as defined by s.474(2) of the Migration Act. As sub-s.474(1) makes clear a privative clause is final and conclusive and is not subject to prohibition, mandamus, injunction, declaration or certiorari.
The application will be dismissed.
There is an application for costs on behalf of the first respondent Minister. In my view, costs follow the event and there is no reason to depart from that practice in this matter. I propose to make a costs order in favour of the Minister, the amount sought is $2,900.00.
The application is one which was commenced after 1st December 2005 and in my view the amount sought, namely $2,900.00, is an appropriate figure. I propose to make a costs order in that amount.
I note also that the original application referred to the Minister by the Minister's former title and nominated both the Refugee Review Tribunal and the Migration Review Tribunal as alternative respondents. Quite obviously the Refugee Review Tribunal is the appropriate respondent.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 6 October 2006
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