SZJWB v Minister for Immigration and Citizenship

[2008] FCA 731

FEDERAL COURT OF AUSTRALIA

SZJWB v Minister for Immigration & Citizenship [2008] FCA 731

SZJWB and SZJWC v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 288 OF 2008

MARSHALL J
21 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 288 OF 2008

ON APPEAL FROM A JUDGMENT OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJWB
First Appellant

SZJWC
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	21 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellants pay the first respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 288 OF 2008

ON APPEAL FROM A JUDGMENT OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJWB
First Appellant

SZJWC
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE:	21 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellants appeal from a judgment of the Federal Magistrates Court which dismissed their application for judicial review of a decision of the Refugee Review Tribunal.

2. The appellants are husband and wife respectively. They claimed to be citizens of Malaysia of Chinese ethnicity. They claimed to have a well founded fear of persecution if returned to Malaysia on account of their ethnicity. They said they experienced racial discrimination in Malaysia, including extortion of bribery from government officials, due to their Chinese ethnicity.

3. A delegate of the first respondent Minister rejected the appellants’ application for a protection visa. The delegate assessed the claims of the first appellant and treated the second appellant as part of the first appellant’s family group. The delegate found the first appellant to be a citizen of Malaysia. The delegate referred to country information concerning “preferential programs designed to boost the economic position of the Malay majority”. The delegate considered that such discrimination is not “to the degree to meet the Convention requirement of persecution”. Consequently, the delegate found the first appellant would not face a real chance of Refugees Convention based persecution should he return to Malaysia in the foreseeable future.

4. The appellants applied to the Tribunal for a review of the delegate’s decision. The Tribunal, after receipt of the review application, advised the first appellant that it had considered the material in relation to his application but was unable to make a decision in his favour on that material alone. It invited the first appellant to an oral hearing. The appellants did not attend the hearing and made no contact with the Tribunal concerning the hearing. Under s 426A of the Migration Act 1958 (Cth), the Tribunal decided to make a decision on the review without taking any further action to enable the first appellant to appear before it.

5. The Tribunal dismissed the appellants’ claims as “untested assertions … lacking in detail”. It said that it had no persuasive evidence before it that the appellants will face serious harm if returned to Malaysia. Although the Tribunal said that, on the information before it, it could not be satisfied as to the appellants’ Chinese ethnicity, it also said that it could not be satisfied that they fear persecution on account of that ethnicity.

6. The appellants sought judicial review in the Federal Magistrates Court. The appellants complained that the Tribunal did not refer to country information in its decision. The Federal Magistrate considered the Tribunal was not bound to refer to country information given the lack of detail and untested assertions in the appellants’ claims. Her Honour also referred to the proposition that it is not for the Tribunal to advance an applicant’s claims but for an applicant to do so.

7. The appellants also complained about the Tribunal’s rejection of their claim to be of Chinese ethnicity, when such should have been clear from their passport photographs which were on their visa application forms. Her Honour said that there was “no compelling inference as to specific ethnicity to be drawn from the passport photos”. This, according to the Court below, was a matter of fact for the Tribunal to determine.

8. The Federal Magistrate also rejected the appellants’ claim to have been denied an opportunity to present oral evidence to the Tribunal. An invitation had been given to the appellants to appear in conformity with s 425 and the appellants failed to appear before the Tribunal at the hearing date allocated to them.

9. The notice of appeal seeks to re-agitate the first two of the three grounds relied upon before the Court below. Those grounds are:

   ·the failure to refer to country information about discrimination against Chinese in Malaysia, and

   ·the failure to accept the Chinese ethnicity of the appellants.

10. As did her Honour below, I do not consider that either of the two issues relied on by the appellants constitute any judicially reviewable error. The appellants did not respond to the invitation to appear before the Tribunal. There was nothing before the Tribunal to support their claims other than mere assertions. The Tribunal was not obliged to go any further than it did in relation to those assertions. Further, it was a question of fact for the Tribunal to determine whether the appellants were of Chinese ethnicity. In any event, the Tribunal appears to have later assumed such ethnicity by saying:

    It cannot be satisfied that they were persecuted … in their country because of their ethnicity, their race, because of their Chinese background …. (emphasis supplied.)

11. The appeal grounds relied on disclose no appealable error in the judgment below. The appeal must be dismissed, with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:        21 May 2008

The First Appellant appeared for himself and the Second Appellant.
Solicitor for the Respondents:	Australian Government Solicitor
Counsel for the Respondents:	Ms E Knight

Date of Hearing:	21 May 2008
Date of Judgment:	21 May 2008