Liminthonphan v Minister for Immigration & Multicultural Affairs [2001] FCA 1845

FEDERAL COURT OF AUSTRALIA

Liminthonphan v Minister for Immigration & Multicultural Affairs [2001] FCA 1845 ORAWAN LIMINTHONPHAN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 1130 OF 2001 EMMETT J 7 SEPTEMBER 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1130 OF 2001

BETWEEN: ORAWAN LIMINTHONPHAN

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 7 SEPTEMBER 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. 3. The respondent inform the applicant as soon as practicable of the provisions Order 35 Rule 7(2)(a). Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1130 OF 2001

BETWEEN: ORAWAN LIMINTHONPHAN

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE: 7 SEPTEMBER 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant, who is a citizen of Thailand, arrived in Australia on 22 October 2000. On 1 December 2000 she lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural Affairs. On 6 February 2001, a delegate of the respondent, the Minister for Immigration and Multicultural Affairs, refused to grant a protection (class XA) visa. On 9 March 2001, the applicant applied for review of that decision. On 6 June 2001, the Refugee Review Tribunal ("the Tribunal") affirmed the decision not to grant a protection visa. The applicant then filed an application for an order of review by this Court of the decision of the Tribunal on 26 July 2001. When the matter was first mentioned for directions today, there was no appearance for the applicant. 2 The application to this Court specifies grounds as follows: "The Tribunal was [sic] improperly exercised their powers and made an error of law." No particulars are furnished. 3 The Tribunal had invited the applicant to give oral evidence and present arguments at a hearing on 20 April 2001. On 18 April 2001 the applicant advised the Tribunal that she had applied to Legal Aid for legal representation and would like the Tribunal to postpone the hearing date for four weeks so that she could obtain a government lawyer to defend her case. The Tribunal responded on 19 April 2001 to the street address and post office box supplied by the applicant, stating that the Tribunal considered that the applicant did not fit the criteria for Legal Aid. Nevertheless, the Tribunal indicated that it would postpone the hearing until 26 April 2001. The applicant did not attend the hearing or contact the Tribunal to explain her failure to attend. The Tribunal therefore decided to make its decision on the review without taking any further action to enable the applicant to appear before it. 4 According to her application for a protection visa, the applicant is a 23 year old national of Thailand, having travelled to Australia using a passport issued in Bangkok on 14 June 2000. The visitor's visa was granted on 19 October 2000 and, as I have said, she arrived in Australia on 22 October 2000. The Tribunal assessed the applicant's claim against Thailand as her country of nationality. 5 She claimed that she left her country on a visitor visa to seek protection in Australia, owing to her fear of being persecuted for her membership of the Muslim Religious Welfare Association, which is fighting against corruption, favouritism and religious discrimination alleged to have occurred in the Internal Affairs Department in Thailand. 6 The applicant claimed that, as a member of a powerful organisation, which has defended and protected tens of thousands of Muslim followers, she has totally supported anti-corruption and anti-discrimination groups to purge the high ranking officers of the Department for their involvement in corrupt and discrimination practices to employ and promote staff without following the usual administrative procedures. The applicant claimed that she feared that she may be subjected to an internal investigation leading to further interrogation by the Special Security Task Force for eliminating the undesirable faction of this department. 7 The applicant claimed that she did not think that the authorities in Thailand could protect her if she returned. The Tribunal, in its reasons, said that it was not satisfied that the applicant belonged to the Muslim Religious Welfare Association or that she may be subjected to internal investigation leading to further interrogation by the Special Task Force. The independent evidence before the Tribunal stated that freedom of religion was protected by law and the government generally respects that right in practice. The independent evidence before the Tribunal also, according to the Tribunal's reasons, states that the Constitution of Thailand requires the government to patronise and protect Buddhism and other religions. 8 The Tribunal considered that the lack of detail in the evidence advanced on behalf of the applicant put the Tribunal in a position where it was unable to establish relevant facts. Without any further detail, the Tribunal was unable to be satisfied that the applicant's claim to fears were well founded or that they were for any of the categories in the Convention definition. For that reason, the Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations. 9 The Minister now asks that the application be dismissed in the absence of the applicant pursuant to the rules of the Federal Court. It is not apparent to me, from my reading of the reasons of the Tribunal, that the Tribunal improperly exercised any power or that it made an error of law. In the circumstances, it seems to me the appropriate course is to accede to the Minister's application. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.