SZOWX v Minster for Immigration and Citizenship

[2011] FCA 871

FEDERAL COURT OF AUSTRALIA

SZOWX v Minster for Immigration and Citizenship [2011] FCA 871

Citation:		SZOWX v Minster for Immigration and Citizenship [2011] FCA 871
Appeal from:		SZOWX v Minister for Immigration and Citizenship & Anor [2011] FMCA 217
Parties:		SZOWX v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 508 of 2011
Judge:		COLLIER J
Date of judgment:		3 August 2011
Legislation:		Migration Act 1958 (Cth) ss 36(2)(a), 424A
Cases cited:		Abebe v The Commonwealth (1999) 197 CLR 510 cited SJSB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 225 cited
Date of hearing:	3 August 2011
Place:	Brisbane (Heard in Sydney)
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	21
Counsel for the Appellant:	The Appellant appeared in person with the assistance of an interpreter
Solicitor for the First Respondent:	Ms E Baggett of DLA Piper
Solicitor for the Second Respondent:	The Second Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	NSD 508 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOWX
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	3 AUGUST 2011
WHERE MADE:	BRISBANE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

The appeal be dismissed with costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	NSD 508 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOWX
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE:	3 AUGUST 2011
PLACE:	BRISBANE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

1. This is an appeal from the decision of Nicholls FM dated 31 March 2011 dismissing an application for judicial review of the Refugee Review Tribunal (Tribunal) handed down 30 November 2011. The Tribunal had affirmed the decision of a delegate of the Minister for Immigration and Citizenship to refuse the appellants application for a protection visa.

   Background

2. The appellant arrived in Australia on 29 June 2008. She married in Australia in 2009 and has a child, born in May 2010. Her child was the secondary applicant before the Tribunal. Only the appellant is an appellant before this Court.

3. The appellant is a Malaysian of ethnic Chinese origin. She claims that, as such, she and her family are subject to racial discrimination in Malaysia. The appellant submits that due to her economic status she was forced to adopt Muslim names, hide her language, religion and ethnicity in order to obtain good employment. The appellant outlined that she was subject to discrimination in a variety of economic situations, for example being required to pay more for property.

4. The appellant further alleged she feared harm from the Malaysian authorities, including the army and the police. The appellant also stated Malaysia was not a safe place for ethnic Chinese women and children as they are often abducted by Malays and Indians.

   Refugee Review Tribunal

5. The appellant and her infant son were both applicants before the Tribunal. The appellant did not appear at the Tribunal hearing. The Tribunal found that there was not enough evidence before it to be satisfied that the appellant had a well-founded fear of persecution for any reason related to the Refugees Convention.

6. The Tribunal noted that the information provided by the appellant contained generalised assertions and lacked specific details. The Tribunal also observed that, while it accepted that ethnic Chinese are subject to discrimination in Malaysia, there was insufficient information regarding the risk of abduction. As such the Tribunal found the appellant’s claims regarding abduction or other serious harm of ethic Chinese in Malaysia lacked substance. The Tribunal accepted that the appellant had suffered discrimination however the Tribunal was not satisfied that either the appellant or her son required protection or that they were at risk of harm by the authorities in Malaysia, the army or the police.

7. Accordingly the Tribunal was not satisfied the appellant was a person to whom Australia has protection obligations under the Refugees Convention. The Tribunal concluded the appellant did not satisfy the criteria set out in s 36(2)(a) of the Migration Act 1958 (Cth) (the Act) for a protection visa and affirmed the delegates decision not to grant the appellant a protection visa.

   Federal Magistrates Court

8. On 23 December 2010 the appellant filed an application for judicial review with the Federal Magistrates Court. This application contained the following grounds:

   1.The Tribunal had bias against me and did not consider my application with the Migration Act 1958.

   2.        The Tribunal failed to consider my claims.

   3.The Tribunal failed to consider my application according to S424A of the Migration Act 1958.

   (errors in original)

9. The Federal Magistrate held that the appellant’s complaint that she was subject to bias by the Tribunal had no substance. The Federal Magistrate found that the Tribunal had invited the appellant to give evidence and present arguments in support of her claim. As such the Federal Magistrate dismissed the appellant’s claims of bias. The Tribunal outlined all of the appellant’s claims in its decision and there was no evidence that the Tribunal did not consider the appellants claims. The Federal Magistrate dismissed the appellant’s assertion that the Tribunal had not considered her claims.

10. The Federal Magistrate noted that the appellant did not appear at the Tribunal hearing. The Tribunal’s findings were open to it on the evidence and material before it. The Federal Magistrate considered that the appellant was in fact seeking an impermissible merits review and dismissed the appellant’s application on the basis there were no particulars, evidence or submissions to support her grounds.

    Appeal to this Court

11. On 21 April 2011 the appellant filed a notice of appeal in this Court. The appeal contained the following grounds:

    1.The Second Respondent failed to consider my claims in my application for a protection visa according to S424A of the Migration Act 1958.

    2.The Second Respondent had bias against me and did not consider my application according to law.

    3.The Second Respondent has no evidence or other materials to justify the making of decision.

12. At the hearing before me the appellant was self-represented. The Minister was represented by Ms Emily Baggett of DLA Piper Lawyers.

13. At the hearing, the appellant submitted that she had lost her voice. The only issue raised by the appellant before me this morning was that her son needed to see a doctor at a medical appointment arranged by the appellant.

    Consideration

14. The appellant does not assert any error on the part of his Honour below. Rather, the appellant has claimed errors on the part of the Tribunal.

15. In my view, the grounds of appeal of the appellant may be swiftly dealt with. First, there is no evidence to suggest that the Tribunal breached s 424A of the Act. Section 424A provides, so far as relevant, that:

    (1)  Subject to subsections (2A) and (3), the Tribunal must:

    (a)  give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

    (b)  ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

    (c)  invite the applicant to comment on or respond to it.

16. In this case there is no suggestion that the Tribunal incurred any obligation under s 424A to give the applicant information required by the section. The Federal Magistrate observed that the Tribunal’s finding that it could not be satisfied on the evidence that the applicant was a person to whom Australia owed protection was not “information” for the purposes of s 424A. This observation is, with respect, correct.

17. Second, there is no evidence of bias in the Tribunal in respect of the appellant. A failure by the Tribunal to accept the contentions of the appellant is not bias.

18. Third, the claim of the appellant that the Tribunal “has no evidence or other materials to justify the making of the decision” is misconceived. The Tribunal is under no obligation to make the case for the appellant: Abebe v The Commonwealth (1999) 197 CLR 510 at 576. In circumstances where the Tribunal is not satisfied that the appellant’s claims give rise to a well-founded fear of persecution for a Convention reason, the Tribunal is required to affirm the decision under review: SJSB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 225 at [15].

19. Finally, the comments of the appellant in Court this morning provide no basis for setting aside the decision of his Honour below.

20. No appealable error in the decision of the Federal Magistrate has been demonstrated, nor jurisdictional error in the reasons for decision of the Tribunal.

21. The appeal is dismissed with costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated:       3 August 2011