SZRIF v Minister for Immigration - [2012] FMCA 1151

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRIF & ORS v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1151

MIGRATION – Review of decision of RRT – where applicant did not attend Tribunal hearing.

Migration Act 1958 (Cth), ss.36, 65

SZFDE v Minister for Immigration & Anor [2007] HCA 35
Minister for Immigration & Anor v SZLIX [2008] FCAFC 17
S58 of 2003 v Minister for Immigration & Anor [2004] FCAFC 283

First Applicant:

SZRIF

Second Applicant:

SZRIG

Third Applicant:

SZRIH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 752 of 2012

Judgment of:

Raphael FM

Hearing date:

16 November 2012

Date of Last Submission:

16 November 2012

Delivered at:

Sydney

Delivered on:

16 November 2012

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
First and Second Applicants to pay the First Respondent’s costs assessed in the sum of $4,600.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 752 of 2012

SZRIF

First Applicant

SZRIG

Second Applicant

SZRIH

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The principal applicant is a citizen of Malaysia who arrived in Australia on 27 January 1999. On 2 August 2011 he applied for a protection (Class XA) visa. The delegate of the Minister refused to grant a protection visa on 25 October 2011 and on 23 November 2011 the applicant applied for review of that decision by the Refugee Review Tribunal. The applicant employed a migration agent. The agent was the applicant’s address for service. When the Tribunal wrote to the applicant, through his agent, offering the applicant an opportunity to attend a hearing at which he might present arguments and give evidence, the response [CB 94] indicated that the applicant and the two additional applicants, his wife and his son, did not wish to attend. On 8 March 2012 the Tribunal determined to affirm the decision under review.
The ground upon which the applicant claimed he was a person to whom Australia owed protection obligations arose out of his Chinese ethnicity and his view that persons of Chinese ethnicity and Buddhist religion were discriminated against in Malaysia. He claimed that it was difficult for Chinese people to operate a small business in Malaysia due to discrimination from the Malaysian Government. This caused the store that he ran to close in 1998. He said that he was abused by Malaysian customers. The applicant told that he feared that he would be subject to violence and racial discrimination in Malaysia if he should return. He also feared financial hardship. He noted that he had been away from Malaysia for more than 10 years. He did not have a house to live in or a job in that country and believed he would be unable to support himself and his wife and family.
The Tribunal decision record deals with the departmental interview that the applicant attended on 27 September 2011 and then notes that the applicant declined to attend a hearing with the Tribunal.
“[37]In assessing the applicants’ Convention claims the Tribunal is required to determine whether they have a well-founded fear, and if what they fear amounts to persecution for a Convention reason. The applicants were informed by the Tribunal that on the evidence to date it was unable to accept their claims. They were offered the opportunity to give evidence and make submissions at a hearing and they declined that opportunity.
[38]There are a number of issues the Tribunal would like to discuss with the applicants before it could be satisfied that they hold a genuine fear of persecution, or that any fear they claim to have, in this regard is well-founded.
[39]The applicants claim to fear persecution because of their ethnicity and religion. Without the opportunity to question the applicants about their fears, the Tribunal cannot make a finding of fact as to whether the applicants have a well-founded fear of persecution in Malaysia for any convention reason.
[40]As the Tribunal finds the applicants have not provided sufficient evidence relating to fears of Convention related persecution, it cannot be satisfied that the applicants would have a well-founded fear of persecution for a Convention reason should they return to Malaysia.” [CB 104]
On 5 April 2012 the applicant filed an application with this court seeking a review of the Tribunal’s decision. There are three grounds of application. The first is:
“The applicant claims that the Tribunal did not properly consider the applicant’s claims that he had suffered discrimination in Malaysia on the basis of his Chinese ethnicity and that there is a real chance that he will suffer persecution in the foreseeable future.”
The Tribunal could only deal with the claims as made by the applicant. Those were best articulated in his interview with the delegate when it was dealt with in some detail in the Tribunal’s decision. The applicant provided the Tribunal with no further information that would assist it to come to a state of satisfaction as required by ss.36 and 65 of the Migration Act 1958 (Cth)[1]. I am quite satisfied that the Tribunal considered the applicant’s claims as best it could and that it did all that was required of it pursuant to the provisions of the Act dealing with natural justice hearing rule.
[1] “Act”
The second ground is:
“The applicant claims that the Malaysian Government has a discriminative treatment on Chinese minority group and has failed to protect Chinese minority in the past. In recent years violence against Chinese has intensified in Malaysia and there is a real chance that he will be subject to such violence if he returns to Malaysia. Malaysian Government’s human rights record is also poor.”
This is not a ground of review, it is a statement of the applicant’s views as to the treatment of Chinese by the Malaysian Government. Any debate about this matter is a matter of merit and this court is not permitted to indulge in merits review.
The third ground is:
“The applicant claims that his child was born in Australia and therefore should be protected by the Australian Government.”
The fact that the child was born in Australia does not add to the responsibilities that Australia has as a signatory to the Refugee’s Convention. Neither does the child have any special rights by virtue of being born in this country. A child born of a non-citizen who does not hold a valid visa is not an Australian citizen. There is no merit in this ground.
The applicant appeared before me today. He told me that at the hearing before the delegate he had a Mandarin interpreter and he thinks that there may have been some mistakes in the interpretation. However, he has not particularised this complaint which, in any event, would have been cured had he attended the hearing before the Tribunal, with an interpreter in the Cantonese dialect that he requested at the hearing in this court. But he did not attend. The applicant says that he did not attend the hearing because he was told not to by his migration agent. Again, there is no evidence of this. He even told me that the migration agent, who he last spoke to in August, had told him not to take the legal advice that was being offered under the Minister’s scheme. It may well be said that if these things are true the applicant has not been well served by his migration agent but that does not make the proceedings before the Tribunal invalid.
The circumstances in which there could be said to be fraud on the Tribunal as a result of the actions of a migration agent are limited; SZFDE v Minister for Immigration & Anor [2007] HCA 35 at [53]. The applicant has not suggested any grounds that would establish fraud on the part of this agent, who would appear to have done no more than give advice. There were no false representations; Minister for Immigration & Anor v SZLIX [2008] FCAFC 17.
The applicant confirmed to me that he was aware that he had not gone to the Tribunal hearing but he now wished to change his migration agent and make representations to the Tribunal. I am not aware of any authority that allows that a change of mind by an applicant at the judicial review stage constitutes a jurisdictional error on the part of the Tribunal.
The applicant also told me that the agent had said to him that if he gets a bridging visa whilst making his application for refugee status his son could go to school in Australia. This seems to me have been a powerful reason for the applicant advancing his claims. There is no suggestion that at any time he held a valid visa other than possibly a visitor visa some 10 years ago. Wishing your child to go to school in what has now become his adopted country is understandable, but, again, does not assist the court in coming to a conclusion that the decision of the Tribunal should be reviewed.
The Tribunal’s decision was based upon its lack of satisfaction for the reasons given and set out earlier in this judgment. In S58 of 2003 v Minister for Immigration & Anor [2004] FCAFC 283 at [26] the Full Court said that an applicant could not complain if his application was rejected because, amongst other reasons, he had failed to take up the opportunity to appear. And whilst the Tribunal is still under an obligation to consider the claim, whether or not the applicant attends, it was not unreasonable for it in the circumstances of this particular case to conclude that it needed more than what it had in order to reach the appropriate state of satisfaction.
For the reasons I believe that the application must be dismissed and that the First and Second Applicants must pay the First Respondent’s costs which I assess in the sum of $4,600.00.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM.

Date: 30 November 2012