WZAOX v Minister for Immigration - [2011] FMCA 868

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WZAOX v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 868

MIGRATION – Application for judicial review of decision by Refugee Review Tribunal – refusal to grant protection visa – where failure to attend hearing before Delegate – where failure to attend hearing before Tribunal – Malaysian national claiming persecution on the basis of Chinese ethnicity – whether well founded fear of persecution – admission by applicant of intention to obtain better life.

Migration Act 1958 (Cth), ss.91R(1)(b) and 91R(2)
Migration Legislation Amendment Act (No.6) 2001 (Cth)
Migration Legislation Amendment Bill (No.6) 2001 (Cth), Revised Explanatory Memorandum

NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287
SZOZD v Minister for Immigration and Citizenship [2011] FCA 946

Applicant:

WZAOX

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

PEG 203 of 2011

Judgment of:

Raphael FM

Hearing date:

8 November 2011

Date of Last Submission:

8 November 2011

Delivered at:

Perth

Delivered on:

8 November 2011

REPRESENTATION

For the Applicant:

In person

Counsel for the Respondents:

Mr P Graham

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application be dismissed.
The Applicant pay the Respondent’s costs in the sum of $3,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 203 of 2011

WZAOX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Applicant is a citizen of Malaysia who arrived in Australia on

23 November 2005 and applied to the Department of Immigration and Citizenship[1] for a Protection (Class XA) Visa[2] on 12 October 2010.

On 22 December 2010, he was invited to an interview with a delegate of the Minister[3] on 5 January 2011 but he did not attend. On 5 January 2011, the Delegate decided to refuse to grant the Applicant a Protection Visa[4] and notified the Applicant of the Decision by letter dated

6 January 2011. On 11 February 2011, the Applicant applied to the Refugee Review Tribunal[5] for review of the Decision.[6]
[1] “Department”.
[2] “Protection Visa”.
[3] “Delegate”.
[4] “Decision”.
[5] “Tribunal”.
[6] “Application”.
In that Application, the Applicant indicated that he was now resident in Western Australia, and that he had appointed a migration agent[7] in Sydney having completed a form appointing the Agent on 12 October 2010.[8] The Tribunal wrote to the Applicant’s Agent on 6 April 2011, inviting the Applicant to a hearing in the Perth office of the Tribunal on 2 May 2011. No response was received to that invitation, and the Applicant did not attend the hearing. On 20 June 2011, the Tribunal determined to affirm the Decision under review.
[7] “Agent”.
[8] Court Book 28-31 (“CB”).
The Applicant is a Malaysian citizen of Chinese ethnicity. In a typed statement attached to his application,[9] he claimed that:
a)there was racial discrimination against ethnic Chinese in Malaysia;
b)he was bullied at school;
c)he was underpaid in his jobs ; and
d)he could not get equal opportunity with the Malays so he decided to leave the country.
In its Decision, the Tribunal refers to this Statement and accepts the truth in the claims made by the Applicant, considering that they were generally consistent with country information before it.
[9] CB 25, (“Statement”).
The Tribunal accepted that the Applicant would have faced some level of discrimination in the workplace on the basis of his Chinese ethnicity, but found the bullying and discrimination did not constitute persecution for the purposes of ss.91R(1)(b) and 91R(2) of the Migration Act 1958 (Cth). The Tribunal noted that the Revised Explanatory Memorandum to the legislation that introduced s.91R[10] states that the definition of “persecution”:
… reflects the fundamental intention of the Convention to identify for protection by member states only those people who, for Convention grounds, have a well founded fear of harm which is so serious that they cannot return to their country of nationality, or if stateless, to their country of habitual residence. These changes make it clear that it is insufficient … that the person would suffer discrimination or disadvantage in their home country, or in comparison to the opportunities or treatment which they could expect in Australia.[11]
[10] Migration Legislation Amendment Act (No.6) 2001 (Cth).
[11] Revised Explanatory Memorandum to Migration Legislation Amendment Bill (No.6) 2001 (Cth) at [25].
The Tribunal noted that there was no evidence before it to suggest that the Applicant had experienced any threat to his life or liberty, nor significant harassment or ill-treatment.
Nor is the Tribunal satisfied on the evidence before it that [the] applicant has faced in the past significant economic hardship or a denial of basic services or the capacity to earn a livelihood of any kind that threatens his capacity to subsist, noting that he states in his claims that he has obtained employment in Malaysia in the past.[12]
[12] CB 67 at [49].
The Applicant filed with this Court an Application seeking judicial review of the Tribunal’s Decision on 25 July 2011. There were two grounds of that Application. The first was:
The applicant claims that the Tribunal’s decision was affected by judicial error in failing to find that the applicant had suffered discrimination amounting to persecution on the basis of his Chinese ethnicity and that there is a real chance that he will suffer persecution in the foreseeable future.
This ground is no more than a plea for impermissible merits review by this Court. The Tribunal explained why it came to its Decision and although the Tribunal did not make reference to it, one can see that there was much in its treatment of the Applicant that the Tribunal in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 also dealt with. In that case the Full Court, French, Emmett and Dowsett JJ, said at [5]:
In assessing the adequacy of these reasons, it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value the short and very vague outline of his basis for fearing persecution in China. Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.
The second ground of the Application was:
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 worsened in Malaysia and there is a real chance that he will be subject to such violence if he returns to Malaysia.
As there is nowhere in the Applicant’s Statement any reference to violence, this ground can be seen to be based upon a misunderstanding of the role of the Court in this type of matter. The Court cannot take into account claims that were not made before a Tribunal when they were available to be made. As Reeves J said in SZOZD v Minister for Immigration and Citizenship [2011] FCA 946 at [27]:
Before leaving this appeal, I would add this. The irony that emerges from the whole of the appellant’s three grounds of appeal is that he is dissatisfied with the way in which the Tribunal dealt with his factual claims, yet he passed up his only opportunity for a full merits review by the Tribunal by electing not to accept its invitation for him to attend before it and elaborate on his claims. As the Full Court said in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 (at [8]), once he did that: “the inevitable consequence was the rejection of his application.”
The Applicant appeared before me today. He told me that his real reason for coming to Australia was to obtain a better life. Whilst there is nothing reprehensible in that, it does not amount to a ground upon which he could make a claim for refugee status, nor a ground for judicial review of the Tribunal’s Decision. I notice that he had been in Australia for several years before he made the application for a Protection Visa, but the Tribunal did not utilise that fact in its reasons for determining that the Applicant did not have a well-founded fear of persecution.
There is really nothing which can be said in the light of the Tribunal’s Decision and the Applicant’s forthright admission, other than to dismiss the Application and order that the Applicant pay the Respondents’ costs in the sum of $3,200.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date: 16 November 2011