SZSAR v Minister for Immigration
[2013] FCCA 534
•6 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSAR v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 534 |
| Catchwords: MIGRATION – Review of decision of RRT – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.91R(1) |
| Applicant: | SZSAR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2336 of 2012 |
| Judgment of: | Judge Raphael |
| Hearing date: | 6 June 2013 |
| Date of Last Submission: | 6 June 2013 |
| Delivered at: | Sydney |
| Delivered on: | 6 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 $5,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2336 of 2012
| SZSAR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant, who is an ethnic Chinese of Malaysian nationality arrived in Australia on 10 August 2011. On 9 February 2012 he applied to the Department of Immigration for a protection (Class XA) visa. On 21 February 2012 a delegate of the Minister refused to grant a protection visa when the applicant did not appear to attend an interview that had been scheduled with the delegate. The applicant applied for a review of that decision from the Refugee Review Tribunal before whom he did appear on 29 August 2012. On 20 September 2012 the Tribunal determined to affirm the decision not to grant him a protection visa.
The ground upon which the applicant claimed to be a person to whom Australia owed protection obligations was the convention one of race. He told that as an ethnic Chinese within Malaysia he had been discriminated against, in particular in relation to his ability to work at his trade as a welder. He told particularly of an incident where, in November 2010, he was sent by his employer to install an iron gate in a home belonging to a Malay. He said that a fee of 28000 MYR had been agreed but the Malay only proposed to pay 15000 MYR. When the applicant went to collect the balance that was refused and an incident arose between the applicant and his boss and the Malay, who had some connections with the police force. As a result, over a period of time, the police interfered in the workshop and caused difficulties which eventually led to the applicant’s boss asking him to leave his employment on 23 May 2011.
The applicant claimed that this incident had a continuing effect upon him and was indicative of the type of persecution and discrimination that ethnic Chinese suffered within Malaysia. However, at the hearing he agreed that he had not suffered any physical harm as a result of the incident and that if physical harm had been intended against him it could have happened between the incident in November and his departing Malaysia the following August. The applicant told the Tribunal that his family still remained in Malaysia and that everything was normal, his wife went to work and his sons went to school. He told the Tribunal that whilst he would have difficulty getting a job in his home town of Taipan, he could work in IPOH or in other places within Malaysia, such as Penang. He was a qualified welder and could work as one anywhere.
The Tribunal considered and discussed with the applicant country information which indicated that whilst there was a general form of discrimination against ethnic Chinese in favour of native Malays, which might limit access to public education and government employment, the ethnic Chinese control a disproportionate share of the economy compared with the Bumiputras and are able to access private education and employment in Malaysia.
In its findings and reasons the Tribunal noted that the applicant’s entire family had received at least a basic education and had been gainfully employed in Malaysia and were able to support themselves notwithstanding their Chinese ethnicity. Having considered the applicant’s position as told to the Tribunal it concluded that although he and his family might face discrimination in Malaysia for reasons of ethnicity this discrimination would not amount to persecution on an individual or cumulative basis. The Tribunal did not think there would be a real chance of him facing serious harm in Malaysia for reasons of his Chinese ethnicity:
“[58]It notes his evidence that he has not faced serious physical harm in Malaysia apart from one isolated incident when he was assaulted in his youth, and an incident of minor vandalism by police officers in January 2011. The assault is now remote in time, and was an isolated incident. The minor vandalism at the applicant’s workplace did not amount to serious harm. The incidents relating to the iron gate and the applicant’s problems which arose as a result of his employment and a dispute with a customer of his employer in the Tribunal’s view are isolated. No serious harm came to the applicant as a result of these events, albeit after a protracted period the applicant’s employer felt it necessary to encourage termination of the applicant’s employment, and periodic harassment from the police.” [CB 101 – 102]
The Tribunal found that the loss of employment did not amount to serious harm given the applicant’s admission that he could have obtained employment anywhere within Malaysia as a welder.
On 18 October 2012 the applicant filed an application in this court seeking review of the decision of the Tribunal. There were three grounds of application stated. They are short and although the applicant was given an opportunity to file an amended application he did not do so. The application must, therefore, be judged on the basis of those grounds.
The first ground of application was:
“1. There exists jurisdictional error in understanding of well-founded fear.”
The Tribunal in its introduction to its Findings and Reasons set out the relevant law and included at [10] a discussion of s.91R(1) of the Migration Act 1958 which deals with persecution. At [13] it set out a definition of well-founded fear which continued at [14]. There is nothing in the manner in which the Tribunal wrote its decision to indicate that it misunderstood what a well-founded fear might be or what was required of it in order to make a decision as to whether such a fear existed. When the applicant appeared before me today he told me that the Tribunal had not considered the situation in Malaysia and that it was a well known fact that Chinese were discriminated against. He told that there was no Chinese in the cabinet formed after the recent elections and that he believed the Chinese people would protest and that he would be persecuted if he returned. He felt that the system in Malaysia would continue with ethnic Chinese having no space to survive. He felt his children would suffer being unable to obtain proper employment or education.
I am of the view that these matters were considered by the Tribunal when it took into account the independent country information that was relevant at the time of the decision. The recent elections in Malaysia have come post that decision and are not matters for consideration by this Court.
The second ground of application was:
“2. Bias of RRT against the applicant”.
As Ms Crittenden points out in her helpful written submissions:
“21.The second ground makes a bare assertion of bias in the absence of any evidence. An allegation of bias must be distinctly made and clearly proved: SBAP v Refugee Review Tribunal [2002] FCA 590; Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] 205 CLR 507. In order for bad faith to be established it must be shown that the Tribunal acted dishonestly, arbitrarily or capriciously: SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] 194 ALR 749, finding that a decision-maker has not acted in good faith and is likely to be rare and extreme especially when the only evidence available to support the allegation is the Tribunal’s reasons for decision: SAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 547.”
This seems to me to be an accurate paraphrase of the relevant law and one that I would adopt and agree with. The applicant has not established bias as required by those authorities.
The third ground of application was:
“3. RRT’s denial of the applicant’s claims without conscience”.
I am not at all clear what this means and nothing that the applicant said to me today has assisted me in deciphering it. It does appear at best to be taking issue with the factual findings of the Tribunal. But if those factual findings are made upon available evidence then there is nothing this Court can do to interfere with them. The factual findings made by the Tribunal were made on the basis of the applicant’s own statements. It did not disagree with anything that he said. The Tribunal merely came to the view that the discrimination that he suffered did not amount to serious harm and as a result it could not be said that he had a well founded fear of persecution. This ground cannot be sustained.
In all these circumstances I am unable to provide the applicant with the review he seeks. The application is dismissed. The applicant must pay the first respondent’s costs assessed in the sum of $5,000.00.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Raphael
Date: 14 June 2013
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