SZRSV v Minister for Immigration
[2013] FCCA 729
•27 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZRSV v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 729 |
| Catchwords: MIGRATION – Review of decision of RRT – no particularised grounds – where Tribunal thoroughly considers applicant’s case. |
| Minister for Immigration & Anor v Jia Legeng [2001] 205 CLR 507 SZSAR v Minister for Immigration & Anor [2013] FCCA 534 |
| Applicant: | SZRSV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1826 of 2012 |
| Judgment of: | Judge Raphael |
| Hearing date: | 27 June 2013 |
| Date of Last Submission: | 27 June 2013 |
| Delivered at: | Sydney |
| Delivered on: | 27 June 2013 |
REPRESENTATION
| For the Applicant: | In person |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $3,500.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1826 of 2012
| SZRSV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant, who is a citizen of Malaysia, arrived in Australia around 11 September 2011 and applied to the Department of Immigration for a protection (Class XA) visa on 29 November 2011. On 9 March 2012 a delegate of the Minister refused to grant a protection visa and the applicant applied to the Refugee Review Tribunal for review of that decision. He attended a hearing before the Tribunal at which he gave evidence. On 30 July 2012 the Tribunal determined to affirm the decision not to grant the visa.
The applicant claimed to be a person to whom Australia owed protection obligations because he was an ethnic Chinese living in Malaysia who believed that he was discriminated against on the grounds of his race and had suffered a series of incidents which he believed were racially motivated. In his original statement the most serious incident was described. He stated that he was employed in a motor vehicle repair garage and he had done some work on the brakes of a car that turned out to belong to a policeman.
He charged MR 350 for the work but a couple of weeks later the policeman returned claiming that the brakes that had been replaced were unsuitable. In his original statement the policeman had demanded his money back and when that did not happen brought along a group of other policemen who beat up the applicant and his boss and caused considerable damage to the premises. Later this claim was somewhat modified.
“[16]The delegate asked whether the applicant was injured after he claimed to have been bashed by the police. The applicant stated that he was injured a little bit, because they did not bash him seriously, they played with him like a dog…” [CB 106]
The applicant told the delegate that he was depressed as a result of this incident and the friend had suggested that he come to Australia. He told the delegate that:
“[22]If he returned to Malaysia, the applicant thought that the client would probably not come after him because it was a minor incident and they had already reported him, but there was no hope for him in Malaysia.” [CB 107]
At the Tribunal hearing the applicant told of a difficult life growing up in Malaysia as an ethnic Chinese. He recalled an incident which occurred to him when he was somewhat younger when he became involved with a gang of persons who were Malaysian criminals.
“[28]The Tribunal put to the applicant that nothing happened in 2009 and it was probable that nothing would happen if he saw them in Malaysia now. The applicant agreed that probably nothing would happen, because he doesn’t want to go back because psychologically he was still afraid.”[CB 108]
The applicant told the Tribunal that he did not wish to return to Malaysia because a lot of things had happened to him whilst he was there and that his life in general including his family life was not satisfactory. He had been seeing a psychologist in Malaysia for what appeared to the Tribunal to be depression. The applicant repeated the story about the policeman and the allegation of being beaten up because they had supplied faulty brakes and said that from time to time police would come to the garage to check upon whether they were using substandard material. He said that the policeman had found out where he lived and had come to visit him.
The applicant told the Tribunal that after this he had found another job about an hour from his home and that he had not had any problems since that time.
“[38]The Tribunal put to the applicant that it appeared that “MAL” had let the incident go and it did not seem that he would be still interested 18 months later. The applicant agreed. The applicant thought that if he did not report it and he didn’t sue “MAL”, he would let it go. The Tribunal put to the applicant that it appeared that “MAL” would not be interested in him if he returned now. The applicant agreed that that was possible…” [CB 109]
In its findings and reasons the Tribunal considered the evidence that the applicant had given and noted that the applicant had agreed with it that his problems were unlikely to reoccur.
“[68]The applicant stated that he had not had a happy life. He did not have a happy marriage and he was not a happy person in Malaysia. He stated that he could not describe himself as happy in Australia either, although he had a better job and was able to provide for his family in Australia. The Tribunal accepts that the applicant is not a happy person. However the applicant has been given ample opportunity to make his claims for protection through the protection visa application, the interview with the delegate and the hearing with the Tribunal. Although he initially told the Tribunal that he could be persecuted, beaten, or killed in Malaysia, he was not able to describe why or how this might occur. Although he might be apprehensive about living in Malaysia, his actual claims have not disclosed a real chance of harm if he were to return to Malaysia now or in the reasonable future. Considering all of the applicant’s evidence, the Tribunal finds that there is not a real chance that the applicant will face harm in Malaysia and the Tribunal finds that the applicant does not have a well-founded fear of Convention persecution in Malaysia. The applicant does not meet the definition of a refugee as set out in the Refugee’s Convention.”[CB 114]
On 23 August 2012 the applicant filed an application with this Court. He attended a directions hearing on 8 November 2012 when he was given an opportunity to file an amended application but did not do so. The grounds of application are twofold:
Ground 1 was:
“1. Bias of RRT against the applicant.”
It is now well settled that in order to make out a claim of bias on the part of the Tribunal, whether it be apprehended bias or actual bias, the applicant must do more than make a mere assertion. Indeed, he must provide evidence that indicates that the Tribunal came to or was perceived to have come to the decision with a fixed mind incapable of alteration or of being persuaded; Minister for Immigration & Anor v Jia Legeng [2001] 205 CLR 507. The applicant has provided no evidence of bias on behalf of the Tribunal and the reasons of the Tribunal’s decision most certainly do not reveal any.
The applicant was given every opportunity to provide the Tribunal with evidence which might persuade it that he was indeed a person to whom Australia owed protection obligations. He took that opportunity but he failed to convince. That is in itself not a ground for review. Ground 1 most be rejected.
Ground 2 was:
“2. RRT’s denial of the Applicant’s evidence without conscience.”
This ground also lacks particulars and nothing the applicant said to me today illuminated it. He told me that he wanted to tell the Tribunal that it was very hard for him to survive in Malaysia and that he had come to this Court to see if it would give him a chance to survive. He told me that he hoped that he could have a future here so that he could send some money back to his son so that his son could have a life in Malaysia and that he wanted to stay here. Whilst these sentiments are understandable they do not assist me to conclude that the Tribunal made an error of law in the manner in which it came to its decision.
The applicant also told me that the things that had happened in the past had a psychological effect on him and it was hard for him to want to live on. These sentiments are indicative of a psychological problem that was revealed to the Tribunal and considered by it. There was no suggestion that the psychological difficulties that the applicant suffers prevented him from properly making his case. And I cannot provide the applicant with the review he seeks on the second ground.
I must therefore conclude that the application must fail and should be dismissed. Before making that order I would note with some concern that the factual situation described by the applicant was remarkably similar to that which came before me in the case of SZSAR v Minister for Immigration & Anor [2013] FCCA 534 on 6 June. I do not have any other papers in relation to that case bar the decision so I cannot make any further comments, such as noting that both applicants had the same migration agent. But I would ask the Minister’s representatives to investigate the matter for fear that a standard form of factual situation is being distributed amongst this particular community.
I dismiss the application and order that the Applicant must pay the First Respondent’s costs assessed in the sum of $3,500.00.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Raphael
Associate:
Date: 4 July 2013
0