SZMCW v Minister for Immigration

[2008] FMCA 896

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMCW v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 896

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of Malaysia claiming fear of persecution for reason of his political opinion – privative clause – no jurisdictional error.

Migration Act 1958 (Cth), ss.424A, 425, 426A, 477

SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 215
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306
SZBKB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1811

Applicant: SZMCW

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 821 of 2008

Judgment of: Scarlett FM

Hearing date: 24 June 2008

Date of Last Submission: 24 June 2008

Delivered at: Sydney

Delivered on: 24 June 2008

REPRESENTATION

The Applicant: In Person

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The Application is dismissed.

2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $3800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 821 of 2008

SZMCW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Application

1. The applicant is a citizen of Malaysia. He has applied to the Court for a review of the decision of the Refugee Review Tribunal that was signed on 15 February and handed down on 6 March 2008.

2. The Tribunal affirmed the decision not to grant the applicant a Protection (Class XA) visa.

3. The applicant has commenced proceedings in this Court by means of an application and an affidavit in support both filed on 7 April 2008.  In the application he asks the Court for the following orders.  One, the decision of the Refugee Review Tribunal be set aside.  Two, that his application for a protection visa should be reconsidered.

4. The applicant in his application applied for an order that the time for making the application be extended under s.477 of the Migration Act 1958.  It is unclear why he sought that extension because he claims to have been notified on 17 March 2008 of the Tribunal decision and filed his application for review at the Court registry on 7 April 2008.  The application is within time and no extension of time is required.

5. The applicant sets out three grounds in his application:

   (1)"I face a risk of being put into gaol if I go back to Malaysia."

   (2)"The Refugee Review Tribunal did not fully consider the current situation in Malaysia."

   (3)"I believe I satisfy the criterion for a protection visa." 

6. In his affidavit in support the applicant says, "I do not want to go back to Malaysia" and he annexes a copy of the decision of the Refugee Tribunal.

Background

1. The applicant arrived in Australia on 22 June 2007.  He applied for a Protection (Class XA) visa on 3 August 2007.  His application was accompanied by a typed statement in English for which he told the Court he had received some assistance to prepare.  He claims in his application to have come from an Indian family although he has a Chinese name and has required the services of an interpreter in the Mandarin language in Court this morning.  He claims to have suffered discrimination as a member of a minority in Malaysia.  He claimed to have been unable to attend university after he finished high school.  He claimed that when he was ten years old his parents house was burgled and, more importantly, he claimed to be a political activist for the Reformasi and claimed to have followed the ways of the former Deputy Prime Minister, Mr Anwar Ibrahim.

2. A delegate of the Minister for Immigration & Citizenship considered his application and referred to independent country information which indicated that there are processes in place in Malaysia which positively discriminate in favour of indigenous Malays by the Malaysian government. However, the delegate found that those laws which positively discriminate in favour of indigenous Malays are in place to achieve a legitimate State objective and did not amount to persecution under the convention.  The delegate considered the applicant's claim that his home was burgled when he was ten years of age but was not satisfied that there was any racial motivation behind the crime and referred to country information to indicate that Malaysia had a functioning constabulary and judiciary and that there was no evidence to show that the applicant was without effective State protection at the time of the burglary or that the event amounted to persecution under the convention.

3. Turning to the applicant's claim to have suffered persecution on the basis of his political opinion, the delegate found:

   I accept the applicant may be a supporter of Anwar, however due to the lack of specific information such as documents, dates, details I am not satisfied that the applicant has the adverse political profile claimed and that he was persecuted by the authorities for his actions[1].

   [1] See Court Book at page 48

Refugee Review Tribunal

1. The Minister's delegate refused the application for a Protection (Class XA) visa on 18 October 2007.  The applicant then applied on 19 November to the Refugee Review Tribunal for a review of the Tribunal's decision.  He gave his residential address in a suburb of Sydney and yet asked for his correspondence to be sent to an address at 288/226 Elizabeth Street, Surry Hills, New South Wales, 2010.  He did not provide the name of any advisor.

2. The applicant indicated in his application that he needed an interpreter and in answer to the question "If yes, in what language?" a box was filled in to say "Malaysia"[2].

   [2] See Court Book at page 51

3. No other documentary evidence or any other information was supplied with the application.  The Tribunal wrote to the applicant that same day at his address in Elizabeth Street, Surry Hills acknowledging receipt of the application.

4. On 29 November 2007 the Tribunal wrote to the applicant at that address inviting him to appear before a hearing of the Tribunal.  The letter told the applicant:

   The Tribunal has considered the material before it but is unable to make a favourable decision on this information alone.  This letter is an invitation to the applicant listed above to appear before the Tribunal to give oral evidence and present arguments[3].

   [3] See Court Book at page 56

5. The letter invited the applicant to attend the hearing scheduled to take place at 10 am on 22 January 2008.  The letter asked the applicant to complete a response to hearing invitation and to forward that document and any new documents or written arguments by 18 December 2007.  The Court Book shows the Tribunal did not receive any information.

6. The applicant did not attend the hearing at 10 am on 22 January 2008; he was recorded as a "No show" on the Tribunal's hearing record[4].   The applicant did not contact the Tribunal to explain his absence or seek a further hearing date.

   [4] See Court Book at page 59

Refugee Review Tribunal Decision

1. The Tribunal signed its decision on 15 February and handed that decision down on 6 March 2008.  The Tribunal affirmed the decision not to grant the applicant Protection (Class XA) visa.  A copy of the Tribunal decision record can be found in the Court book at pages 67 through to 70.  The Tribunal sets out the applicant's claims and evidence taken entirely from his application for a protection visa at page 68 of the Court book. 

2. The Tribunal noted that the applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear and did not contact him Tribunal to seek a postponement or to give any reasons why he could not attend. The Tribunal then decided to exercise its power under s.426A of the Migration Act and make its decision on the review without taking any further action to enable the applicant to appear before it.

3. The Tribunal accepted that the applicant was a citizen of Malaysia based on the copy of the applicant's passport.  The Tribunal noted the applicant's claims and noted that the applicant had been invited to appear before the Tribunal but had not attended the hearing.  The Tribunal found:

   Given the scant details provided by the applicant regarding his claims the Tribunal is not satisfied on the evidence before it that there is a real chance that the applicant would be persecuted for a Convention reason if he were to return to Malaysia.  The Tribunal is, therefore, not satisfied that the applicant has a well founded fear of persecution within the meaning of the convention[5].

   [5] See Court Book at page 69

4. The Tribunal affirmed the decision not to grant the applicant a Protection (Class XA) visa.

5. On 7 April the applicant commenced proceedings in this Court seeking a review.  The application came before the Court on a first Court date of 5 May 2008.  I made directions for hearing including making provision for the filing of an amended application and an affidavit containing additional evidence.  I also made directions about the filing and serving of a short written outline of submissions.  The applicant has not filed any documents since his original application and affidavit.  He has not filed any written outline of submissions. 

6. The Minister filed a response on 28 April 2008 and a written outline of submissions on 17 June.  A copy of that document was forwarded to the applicant.

7. The applicant has attended Court today and confirmed that he did not attend the Tribunal hearing.  He said he was sick and had been sick for four days.  He confirmed that he did not contact the Tribunal at the time of the hearing to advise that he was ill, nor did he contact the Tribunal after the hearing to seek another chance at a hearing. 

8. The applicant was offered the opportunity to make oral submissions on his case. I took him through the three grounds that he gave in his application and in the additional statement made in his affidavit.  The applicant told the Court that he did not wish to say anything.  I then took the applicant to the Minister's submissions, in particular I paraphrased the reasons given in the Minister's submissions for the Minister's assertion that the applicant's grounds of review should not be made out.  The applicant told the Court that he did not have anything further to add.

9. The lawyers for the Minister, as I said, have prepared a written outline of submissions claiming that the Tribunal was unable to reach the required state of mental satisfaction that the applicant had a well founded fear of persecution for a convention reason because of the absence of evidence and the absence of detail.  I note that there is what appears to be a typographical error in paragraph 17 of the written outline of submissions because the applicant is claiming a fear of persecution in Malaysia, which is the country of which he is a citizen.

10. I am referred to the decisions of SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215 where the full Court of the Federal Court at 15 and 16 concluded that a legislative regime which requires a positive state of satisfaction as to whether the protection obligations exist mandates a refusal decision if that state of satisfaction is not reached. I was referred also to the decision of the full Court of the Federal Court in NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208, pares 4 and 5 where their Honours observe that the Tribunal is entitled to list a number of significant matters in which it would like to satisfy itself at the hearing and in a case where the Tribunal is not satisfied that an applicant has a well founded fear of persecution it is bound to affirm a decision to refuse to grant a protection visa.

11. The Minister submits that there were no s.424A obligations arising and that the Tribunal complied with s.425 of the Act.

12. As to the applicant's grounds it is submitted that they repeat claims made in the application for protection visa and that the claim in ground 2 that the Tribunal failed to consider the current situation in Malaysia has not been made out because the Tribunal was not able to be affirmatively satisfied as to the applicant's claims and, therefore, had no option but to affirm the decision under review.

13. I note the applicant's address for receiving mail from his application is a different address from his address for receiving mail given in his application for review by the Refugee Review Tribunal.  It is a post office box in Haymarket, New South Wales.  The applicant has given a different home address from the address he gave to the Refugee Review Tribunal which is not, of itself, surprising although he has given a different address in his affidavit filed on the same day as his application claiming to live at an address in Sussex Street, Sydney.

14. The fact is that the Tribunal was not satisfied that the applicant had made out his claims for protection.  The Tribunal noted that the applicant had given scant details and there was insufficient evidence for the Tribunal to be satisfied that the applicant had made out any of his claims, other than that he is a citizen of Malaysia.

15. It is well known that applicants who elect not to attend a hearing of the Refugee Review Tribunal, or who fail to attend a hearing of the Tribunal, and make no effort to provide the Tribunal with any additional information over and above the information that the Tribunal has already considered, are almost guaranteeing that the Tribunal will refuse their application.  This is a matter that has been considered in many decisions including SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 and SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 both of which are decisions on appeal from the Federal Magistrates Court.

16. There is an obligation on the Tribunal to be affirmatively satisfied where an applicant does not attend, where an applicant does not provide further written information, it is hardly surprising when the application is not successful.

17. The Tribunal's letter of 29 November 2007 made it quite clear where it told the applicant it had considered the material before it but was unable to make a favourable decision on that information alone. 

18. The Tribunal invited the applicant to attend a hearing to give oral evidence and present arguments but the Tribunal also invited the applicant to ask the Tribunal to obtain oral evidence from another person or persons and invited the applicant to attach additional information if there was any new information that the applicant wished the Tribunal to consider.  That was set out quite clearly in the Tribunal's letter of 29 November 2007.  The applicant did none of it.  He did not attend, he did not ask the Tribunal to hear a witness, he provided no written submission, he provided no additional documentary evidence.

19. In the circumstances the Tribunal was left with no option but to affirm the delegate's decision. The Tribunal, to my mind, correctly applied the provisions of s.426A of the Migration Act. The hearing was scheduled for 22 January, the Tribunal waited until 15 February 2008 in order to sign its decision. If the applicant had been ill and contacted the Tribunal after the hearing to explain his illness there would have been time for the Tribunal to have taken steps either to recall the decision or consider additional information or even schedule another hearing.

20. No jurisdictional error has been made out. The Tribunal decision is a privative clause decision as defined under the provisions of ss.474(2) of the Migration Act. Because the decision is a privative clause decision it is not subject to orders in the nature of certiorari mandamus.

21. It follows that the application will be dismissed with costs and I am satisfied that the sum of $3,800 is an appropriate figure. It is well within the scale provided by the Federal Magistrates Court rules.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  A. Coutman

Date:  30 June 2008