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[2007] FCA 164
Federal Court of Australia
2007-02-20
Conti J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This is an appeal against the judgment and orders of Federal Magistrate Scarlett delivered on 29 September 2006, whereby his Honour dismissedan application for judicial review of the decision of the Refugee Review Tribunal ('Tribunal') handed down on 21 March 2006. The Tribunal had affirmed the decision of a delegate of the Minister for Immigration and Multicultural Affairs, handed down on 1 November 2005, to refuse the grant of a protection visa to the appellant. The appellant is a citizen of Malaysia and arrived in Australia on 12 September 2005.
The Tribunal's decision 2 In the proceedings before the Tribunal, the appellant claimed to have a well-founded fear of persecution on the basis of his ethnicity and religion. The appellant testified that he was Buddhist of Chinese ethnicity who was the subject of discrimination by the Malaysian government and people, and Muslims in particular. His claims involved the context initially of having worked for a Chinese grocery store, which was ultimately burnt down by extremists, though the police did not investigate the cause of the fire. The appellant claimed that he had difficulties finding a new form of employment, and continued to suffer discrimination in education and bullying by ethnic Malays. 3 The Tribunal notified the appellant by letter dated 15 December 2005 that it had considered the information the appellant had placed before it, but was unable to make a decision in the appellant's favour upon the basis of that information and accordingly invited the appellant to a Tribunal hearing to take place on 9 January 2006. That letter was sent to the appellant's residential address and not to the appellant's post office box number earlier given as his address for correspondence. Consequently on 6 January 2006, the Tribunal rescheduled the hearing for 31 January 2006, and sent notice thereof to the appellant's post office box address. On 30 January 2006, the appellant requested a postponement of the hearing on medical grounds, and consequently the Tribunal agreed to postpone the hearing until 6 February 2006. However the appellant did not attend that subsequent Tribunal hearing, and on 8 February 2006, he requested a further hearing. On that latter occasion the Tribunal agreed to convene a further and final hearing for 16 February 2006. On that date, the Tribunal informed the appellant that because he had not responded affirmatively beforehand to the nomination of that further hearing date, the Tribunal had not made arrangements for an interpreter to attend, and accordingly the Tribunal rescheduled the hearing to a further date. That chain of events and correspondence culminated in the appellant's final hearing before the Tribunal held on 20 February 2006. 4 In its reasons for decision, the Tribunal addressed the written and oral evidence of the appellant and accepted that the appellant was an ethnic Chinese Malaysian. The Tribunal found it was plausible moreover that the shop where the appellant had earlier worked was set on fire by Malay and Muslim extremists in 1994. However, the Tribunal further found the appellant had by then obtained employment at a construction site, and although he subsequently lost that employment, the appellant had not claimed that the loss was due to his ethnicity or some other Convention related persecution, but rather to economic conditions. The Tribunal considered the appellant's claim of bullying, but found that bullying "does not in itself constitute persecution unless it is accompanied by conduct that constitutes serious harm to the victim". There was no specific evidence to suggest any such harm had occurred, and hence the Tribunal found the bullying not to have amounted to persecution. The Tribunal returned to its findings made in the context of the shop where the appellant had worked in 1994, and concluded that the appellant did not provide any credible evidence to suggest that since that incident, he or his family members had been subjected to persecution. The Tribunal considered moreover the other claims advanced by the appellant, but found there was no plausible evidence to support the basis of the appellant's fear in particular of terrorism by Malay extremists, nor any evidence that suggested the appellant's family in Malaysia suffered any difficulty because of their ethnicity.
The Federal Magistrate's decision below 5 On 27 April 2006 the appellant filed an application in the Federal Magistrates Court for review of the Tribunal's decision and was granted leave to file an amended application in court on the day of the hearing. His Honour observed that the amended application contained only one ground, namely, 'that the Tribunal constructively failed to exercise its jurisdiction'. The particulars of that claim were that '…the Tribunal erred in its interpretation of the concept of persecution under Art 1A (2) of the Convention Relating to the Status of Refugees 1951 as amended by the Protocol'. Due to the appellant's lack of legal representation, his Honour also considered the grounds set out in the appellant's original application in order to ascertain whether they disclose jurisdictional error. The grounds set out in the original application included jurisdictional error on the part of the Tribunal, and its failure to take into account relevant considerations and to afford the appellant procedural fairness; moreover it was asserted that the Tribunal acted capriciously and arbitrarily with illogical reasoning. 6 The Federal Magistrate considered the various grounds of review raised but found none of the grounds to have been made out. His Honour was further of the view that the Tribunal did not misunderstand the concept of persecution in relation to the appellant's claims of bullying, and that the evidence justified the Tribunal's finding that bullying did not constitute persecution. His Honour further found that there was also no basis for the grounds going to irrelevant considerations, failure to afford procedural fairness, and illogicality. Moreover his Honour observed that there was no evident breach of s 424A of the Migration Act 1958 (Cth) ('the Act') and further that the common law hearing rule did not apply, since the application had been made after the introduction of s 422B of the Act. 7 Before the Federal Magistrate, the Minister raised the subject of irregularity in relation to the Tribunal's procedure as to invitations extended to the appellant to attend a hearing. First, in that regard, the Tribunal's first hearing invitation sent to the appellant by letter dated 15 December 2005 was not sent in accordance with ss 425A(2) and 441A(4) of the Act, since the letter was not sent to the appellant's last notified address for service. Secondly, in relation to the notification sent on 6 January 2006 for hearing on 31 January 2006, the Tribunal did not strictly comply with the 14 day notice required by s 425A(3) of the Act and reg 4.35D of the Migration Regulations 1994 (Cth) ('the Regulations'). However, the Minister submitted that relief should not be granted for reasons which were accepted by the Federal Magistrate. In the course of his consideration of all the circumstances of the case, the Federal Magistrate addressed authorities in relation to compliance with further relevant sections and regulations. His Honour observed that the Court has discretion to decline relief where an appellant was not prejudiced by the lack of strict compliance with reg 4.35D of the Regulations, especially where the adjournment is requested or postponed by the appellant.
The appeal to the Federal Court 8 The notice of appeal filed with the Federal Court on 20 October 2006 stated the following: "The appellant contended in the FMC that the Tribunal erred in its interpretation of the concept of persecution under Art 1A(2) of the Convention Relating to the Status of Refugees 1951 as amended by the Protocol by its finding that 'bullying does not in itself constitute persecution unless it is accompanied by conduct that constitutes serious harm to the victim. The FMC failed to deal with this claim". 9 At the hearing of the proceedings on 14 February 2007, there was no appearance by the appellant in Court. The respondent tendered into evidence two letters addressed to the appellant that were sent by the Federal Court and the Minister's lawyers respectively on 13 December 2006 and 6 February 2007, informing and confirming respectively the appointment for the hearing of the appeal on 14 February 2007. When the case was duly called or announced outside the Court by the Court's officer, there was no indication that the appellant was outside the Court. There was no suggestion of any explanation existing as to the appellant's non-attendance. 10 In the result and on the Minister's application, I ordered that the appeal be dismissed pursuant to Order 32 rule 2(1)(c) of the Federal Court Rules and further that the appellant pay the Minister's costs of the appeal. 11 I would add that the appellant's case notified by his notice of appeal, confined as it was to conduct complained of in the nature of bullying, would appear to have in any event lacked any juridical viability. In that regard I am unable to accept in principle that conduct in the nature of bullying, without more, would constitute persecution involving serious harm. I refer in that regard to what the High Court recently stated in VBAO v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 544 at [48]-[49]. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.
Solicitor for the Respondent: Blake Dawson Waldron Lawyers
SZITK
Minister for Immigration & Multicultural Affairs
(2006) 231 ALR 544