SZJWB v Minister for Immigration
[2008] FMCA 149
•11 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJWB & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 149 |
| MIGRATION – Application to review decision of the Refugee Review Tribunal – failure to attend Tribunal hearing. |
| Migration Act 1958 (Cth) ss.425, 425A, 426A |
| Applicant S214/2003 v Refugee Review Tribunal (2006) FCAFC 166 |
| First Applicant: | SZJWB |
| Second Applicant: | SZJWC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3722 of 2006 |
| Judgment of: | Barnes FM |
| Hearing date: | 11 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 11 February 2008 |
REPRESENTATION
| First Applicant: | In Person |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
That the applicants pay the costs of the first respondent fixed in the sum of $4,400.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3722 of 2006
| SZJWB |
First Applicant
| SZJWC |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal handed down on 7 November 2006 affirming a decision of a delegate of the first respondent not to grant the applicants protection visas. The background to the present application is that the applicants, who claim to be citizens of Malaysia, arrived in Australia in March 2006. They applied for protection visas. The application was refused and the applicants sought review by application lodged with the Tribunal on 14 August 2006. In that application they provided only one contact address, a residential address in Australia, and indicated that they did not have an adviser they authorised to act for them in relation to the application. The review application appears to bear the signatures of both applicants.
Relevantly, the Tribunal wrote to the primary applicant by letter dated 25 August 2006 indicating that it had considered the material before it in relation to the application but was unable to make a favourable decision on that information alone. It invited the applicant to attend a hearing on 16 October 2006 at a time and place specified and advised that if he did not do so and the Tribunal did not postpone the hearing, it could make a decision on the case without further notice. The letter also informed the primary applicant that he should inform the other applicant, his wife, about the letter and that any reply would be regarded as a joint response unless it was advised otherwise.
In its reasons for decision the Tribunal recorded that no response was received to this letter and that it was not returned to the Tribunal. The applicants did not appear before the Tribunal on the day, time and place scheduled and did not contact the Tribunal about the hearing. The Tribunal noted that as the applicants did not provide it with any telephone or facsimile numbers in the application for review, the Tribunal was unable to take any other steps to contact the applicants. In those circumstances, the Tribunal decided pursuant to s.426A of the Migration Act 1958 (Cth), to make a decision on the review without taking any further action to enable the applicants to appear before it.
The Tribunal set out the applicants' claims as they appeared in the application for a protection visa, in particular the applicant husband's claim that he was born and lived in a particular place in Malaysia and was of the Chinese ethnic group. He married in 2000. He claimed that he had been employed in marketing as an office man and had a marketing business and that his wife was a hawker. The Tribunal recorded his claim that he left the country legally and did not have any difficulty obtaining travel documents. The applicant claimed that he left his country because he and his wife experienced racial discrimination because of their Chinese ethnicity. He claimed that only native Malaysians could work in government and that he and his wife could not get fair treatment but had to pay unnecessary fines, tax and bribery money. He also claimed that his wife had been falsely accused of selling goods illegally because the government wanted bribes. He claimed that government officials came to his office in November 2005 and that when he refused to pay a bribe they accused him of avoiding tax. His business had to close in December 2005.
The Tribunal summarised these claims as essentially a claim of a fear of persecution due to ethnicity or Chinese background and because the applicants claimed they were from a minority group in Malaysia. It observed that implicit in these claims was a claim that the applicants could not get protection in Malaysia from the harm that they feared. However, the Tribunal found that it could not be satisfied of a number of matters, because the applicants' claims were essentially untested assertions and lacking in detail. Hence, on the information before it, it could not be satisfied that the applicants were of Chinese ethnicity, background or from a minority group as claimed or that they were persecuted and/or feared persecution on that basis or for any other Convention reason and that they left Malaysia for that reason. Nor was the Tribunal satisfied on the limited information before it that the applicants could not or would not return to Malaysia because they feared persecution there now or in the reasonably foreseeable future for the reasons claimed. It found that there was no persuasive evidence before it that enabled it to be satisfied that there was a real chance that the applicants would face serious harm for the purposes of the Refugees Convention. It was not satisfied on the evidence before it that the applicants had a well-founded fear of persecution within the meaning of the Refugees Convention.
The applicants sought review of the Tribunal decision by application filed in this Court on 13 December 2006. There are two grounds in the application and an affidavit filed on the same day raises an additional concern. Each of these concerns have been addressed.
In oral submissions the applicant complained generally that he did not understand the law but hoped to have another chance. That complaint does not establish a jurisdictional error on the part of the Tribunal. Insofar as the applicants may be seeking merits review, merits review is not available in this Court.
The first ground is that the Tribunal failed to carry out its duty to refer to relevant country information concerning discrimination against the Chinese minority in Malaysia. However, in this instance, given that the applicant did not attend the hearing, the lack of detail in the claims and the fact that the applicant made essentially untested assertions, the Tribunal found that it was not satisfied of the applicant’s claims about ethnicity, background and minority group membership. In those circumstances the Tribunal was not obliged to consider country information as to whether those of a particular ethnicity in Malaysia faced persecution.
More generally, the Tribunal is not under a duty to refer to independent country information or to take any steps to investigate an applicant’s claims. It is for an applicant to advance his or her own case and for the Tribunal to decide whether the claim to be a refugee is made out (Applicant S214/2003 v Refugee Review Tribunal (2006) FCAFC 166). In this case, as the applicant had failed to attend the Tribunal hearing, the Tribunal could not be affirmatively satisfied on the information before it of the basis for the claims or that the applicants met the criteria for a protection visa. In those circumstances it had no alternative but to affirm the decision not to grant the applicants protection visas.
The second ground is that the Tribunal erred in rejecting the applicants' claims to be of Chinese ethnicity or background or from a minority group. It refers to the fact that the applicants had provided copies of their passports bearing their photos which were said to indicate their Chinese ethnicity and their nationality. Copies of the applicants' passports were provided in connection with the protection visa applications, although it is not apparent from the documents before the Court that those copy passports anywhere state that either applicant is of Chinese ethnicity (although they do refer to Malaysian nationality).
The Tribunal assessed the applicants' claims on the basis of their claims to fear persecution in Malaysia. There is, however, no compelling inference as to specific ethnicity to be drawn from passport photos. It is a matter for the Tribunal to be satisfied on all the evidence before it as to whether it accepts aspects of the applicants' claims. I note in that respect that the only other material before the Tribunal consisted of the protection visa application which does contain the applicants' claims but does not compel it as a matter of logic to infer that the applicants were of Chinese ethnicity as claimed. It was open to the Tribunal to determine that it could not be satisfied on the evidence before it that either applicant was of Chinese ethnicity or background and/or from a minority group in Malaysia and in particular, to find that it could not be satisfied that they were persecuted or feared persecution on that basis. The Tribunal's findings in that respect do not establish jurisdictional error on the basis contended for in ground 2 of the application.
In the supporting affidavit the first applicant contended that the Department and Tribunal did not properly assess his application, that they did not believe his claims and had not offered him an opportunity to appear before the Tribunal and present oral evidence. Despite being given the opportunity to do so, the applicant did not elaborate on this contention in oral submissions. In particular, he said nothing to raise any concern as to whether the Tribunal complied with the procedures under the Migration Act and in particular its obligations under s.425 (and see s.425A) to invite the applicants to a hearing to give evidence and present arguments in relation to the issues before it. In that respect I note that the only address provided by the applicants to the Tribunal was a residential address in Australia. The copy letter of invitation of 25 August 2006 before the Court is addressed to that address. The letter contains the necessary notifications and information under the Act and there is nothing to indicate that the Tribunal erred in the manner in which it determined pursuant to s.426A of the Act to make its decision without taking further action to enable the applicants to appear before it. The generally expressed and unelaborated‑on contention that there was no opportunity to present oral evidence does not establish a jurisdictional error in the decision or procedures of the Tribunal. As no jurisdictional error has been established, the application must be dismissed.
It is appropriate that the unsuccessful applicant meet the costs of the first respondent. I am satisfied that the amount of $4,400 is appropriate in light of the nature of this and other similar matters and having regard to the submissions for the first respondent.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 21 February 2008
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