Thepsiri v Minister for Immigration and Multicultural Affairs

[2001] FCA 204

FEDERAL COURT OF AUSTRALIA

Thepsiri v Minister for Immigration & Multicultural Affairs [2001] FCA 204

IMMIGRATION – application seeking review of the decision of the Refugee Review Tribunal – where no particulars provided and no submissions made in relation to the application – whether the decision of the Refugee Review Tribunal was authorised under the Migration Act 1958 (Cth)

Migration Act 1958 (Cth) ss 36(2), 65, 415, 476
Federal Court Rules O 32 r 2(1)(d)

KITTIYA THEPSIRI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 46 of 2001

STONE J
SYDNEY
7 MARCH 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 46 OF 2001

BETWEEN:	KITTIYA THEPSIRI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	7 MARCH 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        the application be dismissed;

2.        the applicant pay the respondent’s costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 46 OF 2001

BETWEEN:	KITTIYA THEPSIRI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	STONE J
DATE:	7 MARCH 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 18 September 2000, the applicant, Ms Thepsiri, a citizen of Thailand, applied to the respondent (“the Minister”) for a protection visa to remain in Australia. Her application was refused by the Minister’s delegate (“Delegate”) on 29 September 2000. This refusal was upheld by the Refugee Review Tribunal (“Tribunal”) on 1 December 2000. The applicant now applies under s 476(1) of the Migration Act1958 (Cth) (“the Act”) for review of the Tribunal’s decision.

2. The applicant did not appear at the hearing today. She has been called outside the court to no avail. In the circumstances, I have decided to proceed with the trial in accordance with Order 32 rule 2(1)(d) of the Federal Court Rules.

   APPLICANT’S CLAIMS BEFORE THE TRIBUNAL

3. On 21 November 2000, the applicant advised the Tribunal that she did not wish to give oral evidence and would like the Tribunal to proceed to make a decision ‘on the papers’. Accordingly, the Tribunal based its decision on the applicant’s protection visa application and her review application.

4. The applicant claimed to have a well-founded fear of being persecuted for reasons of her religion. She claimed that she has worked in a Muslim organisation for about 14 years and that in 1996 she joined a group of Muslim followers who supported the Muslim Congress refusing the validation of the accreditation papers of pro-Buddhist monks. She claimed that other members of this group have been arrested and detained and that her master has been placed under house arrest. According to her application, faithful Muslims were instructed to form themselves into small resistance groups to lobby for the release of a dozen Muslims in custody. She was allegedly interviewed and put on notice by the Internal Security Officer of the Home Affairs Ministry in relation to her religion. She claimed that she then left Thailand on a passport obtained through bribery.

5. She further claimed that, if she were returned to Thailand, she would be denied religious freedom and possibly persecuted on account of her religious involvement. She stated that the local police would be hostile to her and possibly arrest her and that she would be mistreated because her and her family’s religious activities would be regarded as an act of defiance. She stated that she does not believe that the authorities would protect her.

   REASONS FOR DECISION OF THE TRIBUNAL

6. The Tribunal reviewed the applicant’s claims, as I have summarised them. It then referred to a US Department of State report, which stated that

   ·between five and ten percent of Thailand’s population is Muslim;

   ·the Thai government generally respects religious freedom, which is guaranteed by law;

   ·although the government requires religious organisations to be registered in order to obtain access to state subsidies, tax-exempt status and preferential allocation of resident visas for organisation officials, unregistered religious organisations operate freely in practice;

   ·since 1984, the government has had a policy of not recognising any new religious faiths, although Islam is already a recognised faith;

   ·the government subsidises and supports Muslim institutions and programs; and

   ·there have been no reports of religious detainees or prisoners.

7. The Tribunal noted that the applicant’s claims were “quite general and lacked credibility”. It supported this conclusion with reference to the claims made by the applicant in her application and the independent evidence contained in the report referred to above. It commented that the applicant provided no details in respect of her claims. In particular, the vagueness of the applicant’s claims meant that the Tribunal could not determine whether she had taken part in any activity to lobby the government, as she claimed faithful Muslims had been asked to do or what took place during her interview with the Home Affairs Ministry. The Tribunal also commented on the fact that the applicant’s claims were contrary to independent country information and were implausible. The Tribunal noted that the applicant’s passport had been extended, placing doubt on her claim that she had only been able to obtain a passport through bribery. It also commented on the fact that she had not made any claims in relation to her family, who are also Muslims.

8. Because the applicant did not attend an oral hearing before the Tribunal, it was unable to obtain any further information from her or explore aspects of her claim. It concluded that, based on the limited evidence before it, the applicant did not have a well-founded fear of persecution within the meaning of the Convention. It therefore concluded that she did not satisfy the criterion set out in s 36(2) of the Act, being that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, as “amended” by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (compendiously, “the Convention”).

   APPLICATION FOR AN ORDER OF REVIEW

9. The applicant has applied to this Court for a review of the Tribunal’s decision. Her application identifies three grounds:

   1.The decisions were not authorised by the Act in pursuance of which they purported to be made;

   2.The making of the decisions was an improper exercise of the power confer by the Act in that it involved the exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the case.

   3.There was no evidence or other material to justify the making of the decision.

10. In addition to the above three grounds the application contained, in the section of the form reserved for particulars of fraud, bad faith or actual bias (if alleged) the following claims which I have treated as the fourth and fifth grounds of review:

    4.The Tribunal failed to apply properly the test for determining whether the Applicant as an applicant for refugee status has a “well-founded fear of persecution”.

    5.On the evidence before the Tribunal, it was not open for the Tribunal reasonably to find that the applicant’s political opinion and her involvement with the religious resistant group, fell short of persecution within the meaning of the Convention.

    CONSIDERATION

11. The application did not provide any particulars of these claims and the applicant did not provide any written submissions. As noted above, the applicant did not attend the hearing today.

12. In these circumstances, it does not seem to me to be necessary to deal separately with each ground of review identified by the applicant. In substance, they seem to involve two complaints, first that the Tribunal did not have the authority to make the decision and second that it made the wrong decision. The third ground, that there was no evidence or other material to justify the making of the decision is plainly based on s 476(1)(g). However, without particulars of the claim or submissions to show how the requirements of s476(4) are to be met, it is not possible to do other than reject this ground.

13. In relation to the question of the Tribunal’s authority, the respondent has submitted that the Tribunal was entitled under s 415 of the Act to exercise the powers of the Minister conferred by s 65 of the Act. This section provides that the Minister must grant a visa if satisfied that the criteria listed in the section have been met and otherwise must refuse it. A criterion for the grant of a protection visa is that set out in s 36 of the Act, being that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the Convention. Article 1A(2) of the Convention provides that a refugee is any person who:

    “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

14. In my opinion there is no doubt that the Tribunal had power to make the decision that it did. The question of whether that decision was correct or whether it contained a reviewable error within the meaning of s 476 is an entirely separate question.

15. The remaining claims of the applicant seem to me to amount to a request for this Court to review the Tribunal’s decision on the merits. The grounds on which this Court may review decisions of the Tribunal are set out in s 476 of the Act and do not include review on the merits. In relation to these claims, it is sufficient to say that the Tribunal’s reasons show that it considered the evidence submitted by the applicant and based its decision on that evidence. It made findings of fact which were open to it on that evidence. Having reviewed the Tribunal’s reasons, I can see no reviewable error.

16. For these reasons, the application must be dismissed with costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:             7 March 2001

Counsel for the Applicant:	No appearance
Counsel for the Respondent:	Mr G Kennett
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	7 March 2001
Date of Judgment:	7 March 2001