Mahachai v Minister for Immigration and Multicultural Affairs [2001] FCA 1619

FEDERAL COURT OF AUSTRALIA

Mahachai v Minister for Immigration and Multicultural Affairs [2001] FCA 1619

MIGRATION – application for protection visa – no point of principle

Migration Act 1958 (Cth) ss 5, 36(2), 65, 476

BUSAKORN MAHACHAI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 129 of 2001

LEE J

25 SEPTEMBER 2001

PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 129 OF 2001

BETWEEN: BUSAKORN MAHACHAI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: LEE J

DATE OF ORDER: 25 SEPTEMBER 2001

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 129 OF 2001

BETWEEN: BUSAKORN MAHACHAI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: LEE J

DATE: 25 SEPTEMBER 2001

PLACE: PERTH

REASONS FOR JUDGMENT 1 This is an application under s 476 of the Migration Act 1958 (Cth) ("the Act") for review of a decision made by the Refugee Review Tribunal ("the Tribunal") affirming a decision of a delegate of the respondent ("the Minister") that a protection visa not be granted to the applicant. 2 The applicant is a 32 year old citizen of Thailand, who entered Australia on a Short Stay (Visitor) Visa on 26 October 2000. On 8 December 2000 the applicant applied for a protection visa. 3 In respect of an application for a visa, s 65 of the Act provides that if the Minister is satisfied that, inter alia, the criteria prescribed for a visa by the Act or the regulations have been satisfied, the Minister is to grant the visa but if the Minister is not so satisfied the grant of the visa is to be refused. 4 At material times, s 36(2) of the Act provided the following criterion in respect of a protection visa: "A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." 5 In s 5 of the Act, "Refugees Convention" and "Refugees Protocol" (together referred to hereafter as "the Convention") are defined respectively as the "Convention relating to the Status of Refugees done at Geneva on 28 July 1951" and the "Protocol relating to the Status of Refugees done at New York on 31 January 1967". The term "protection obligations" is not defined in the Act and is not a term used in the Convention. 6 The Convention is a treaty under which the "Contracting States" have agreed to apply the provisions of the Convention to "refugees." Article 1(A) of the Convention provides the folowing definition of "refugee": "For the purposes of the present Convention, the term "refugee" shall apply to any person who:…(2)…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;…" 7 Exception to, or cessation of, the operation of the Convention is set out in, inter alia, Articles 1(C), (D), (E) and (F). Article 1(C)(3), provides that the Convention shall cease to apply to a person who has acquired a new nationality, and enjoys the protection of the country of his new nationality. Article 1(E) states that the Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attributed to the possession of the nationality of that country. 8 The Tribunal made its decision upon information contained in statements (in the form of letters) accompanying the application for a visa and the application for review of the delegate's decision. The applicant made no further oral or written submissions to the Tribunal. In the application for a visa, the applicant stated that she was a refugee due to "[her] political opinion" and "other reasons". The statement accompanying the application for a visa read as follows: "I was born in the town of Udon Thami in Thailand to a very poor family. Because my parents were not very wealthy I was only able to receive a minimal education. I was married at quite a young age and from my marriage we had two children. Though I suffered many hardships growing up and when I was married I still managed to secure a full time job as a shop assistant in a store in the area where I lived. I worked very hard and for sometimes very long hours and still only received minimal wages. During the entire time that I worked I saw that the powerful people who had all the influence were the people who were rich and commanded all the wealth in Thailand. Not only the powerful people in private enterprise were the rich but also the authorities in positions of power commanded high incomes much of which was gained through corrupt means. I witnessed many disturbing things around me that only fostered my hate of those that were both openly and secretly corrupt. Not long before I came to Australia the shop where I was working closed down and I found it was extremely difficult to find another job. After spending many hours and days looking for a new job I decided to use my savings to travel to Australia. I was intent on finding a new country to live in. Since I have been in Australia, which is only a short time I have learned very quickly that corruption in the Government here is virtually non-existent. The system of government is accountable to the people at all levels and at all times and it follows that with stable government comes a stable society and a stable economy. I like the weather in Australia and I find that the people are very friendly and helpful. I have discovered that there are quite a lot of Thais very happily living in Australia, which makes me feel really at home even though I am a world away from Thailand. Following on from that the law and order in Australia seems exceptional to me. Police are not as conspicuous in Australia as they are in Thailand and the military are never seen which is a stark contrast to the military presence of the Thai military regime. In short, Australia is by far the most desired country that I would like to live in. It is my hope and desire that the Australian Government will understand the most difficult situation that I will face if I must return to Thailand. I realise that my case is not strictly convention based but I would like to emphasise that should I be not granted the privilege of staying in Australia I will face great hardship if I return to China. Unemployed I will have no future only extreme hardship, the likes of which are unheard of in Australia. It is for those reasons I seek the protection of the Australian Government." 9 The applicant submitted the following additional material to the delegate: "…From the recent phone conversations with my family, I was told that there is no employment opportunity what so ever in my home town for me. If I'd go back to Thailand the only thing I would face is extreme hardship. I won't be able to find any job. I won't be able to support myself no along my family. I really can't imagine that sort of life after I have enjoyed the life here in Australia. Here I plead to RRT member to consider my application again. Please make a more favourable decision for me. Thank you very much." 10 The Tribunal's reasons for dismissing the application for review were expressed as follows: "The applicant's claimed experiences do not appear to be Convention-related and do not give rise to a well-founded fear of being persecuted. Her claims regarding corruption in Thailand are vague and unsubstantiated. She has not identified how this corruption had an impact on her, nor has she claimed that it had any connection with her losing her job. The Convention does not normally give protection from economic hardship: Applicant A per Gummow J at 283. This means that persons whose sole reason for migration is the desire to leave generalized, difficult economic conditions, or to achieve a better economic standard of living are generally excluded from protection under the Convention. The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention." 11 The application for review of the Tribunal's decision set out the following as grounds for review: "I have been subject to mistreatment and hardship. I was born in the town of Udon Thami in Thailand to a very poor family. Because my parents were not very wealthy, I was only able to receive a minimal education. I was married at quite a young age and from my marriage we had two children. I worked as a shop assistant in a store in the area where I lived. I worked very hard and for sometimes very long hours and still only received minimal wages. During the entire time that I worked, I saw that the powerful people who had all the influence, were the people who were rich and commanded all the wealth in Thailand. Not only the powerful people in private enterprise were the rich but also the authorities in positions of power commanded high incomes much of which was gained through corrupt means. I witnessed many disturbing things around me that only fostered my hate of those that were both openly and secretly corrupt. Not long before I came to Australia the shop where I was working closed down and I found that it was extremely difficult to find another job. After spending many days searching for a job, I decided to save myself and my family by travelling to Australia and asking for protection of the government. You cannot imagine the level of suffering I have gone through. You may think that I have no right to ask for protection but in reality, I have witnessed many corruption and abuse of human rights in my life." 12 At the hearing of the application for review, the applicant, assisted by an interpreter, appeared in person, and when asked why the decision of the Tribunal should be reviewed, restricted her response to an enquiry as to how she may obtain a visa to stay in, or re‑enter, Australia. 13 The application for review has disclosed no ground under s 476 of the Act for review of the Tribunal's decision and it follows that the appeal must be dismissed with costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.