SZCPN v Minister for Immigration and Multicultural Affairs [2006] FCA 1111

FEDERAL COURT OF AUSTRALIA

SZCPN v Minister for Immigration and Multicultural Affairs [2006] FCA 1111

SZCPN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL NSD 673 OF 2006

STONE J

21 AUGUST 2006

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 673 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZCPN

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: STONE J

DATE OF ORDER: 21 AUGUST 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the first respondent's costs. 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 NSD 673 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZCPN

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: STONE J

DATE: 21 AUGUST 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant is a Tamil of the Hindu faith who was employed as a labourer on a rubber estate in Malaysia. She claims that in 2001, after she rejected a marriage proposal from her supervisor at the rubber estate, he began a campaign against her. This campaign involved making complaints about her work performance, directing physical violence towards her and attempting to assault her sexually. The appellant's supervisor was a Muslim. The appellant further claims that her home was ransacked and death threats were made against her by members of two Islamic political parties, in order to force her to marry her supervisor. 2 The appellant left Malaysia and arrived in Australia in July 2003. She made an application for a protection visa shortly after her arrival. Her application was refused, in turn, by a delegate of the first respondent and by the Refugee Review Tribunal. 3 The Tribunal accepted that the appellant had been sexually harassed by her supervisor, but was doubtful as to whether this had occurred over a two year period as alleged. The Tribunal found that although the appellant was of a different religion to her supervisor, this difference was not the motivating factor for his conduct towards her. The appellant could not point to any other Convention reason for his conduct and, accordingly, the Tribunal concluded that whatever harm the appellant had suffered was not for a Convention reason. 4 The appellant applied to the Federal Magistrates Court for a review of the Tribunal's decision. Scarlett FM found that a substantial number of the appellant's grounds of appeal were "no more than a challenge to the factual findings made by the Tribunal" (SZCPN v Minister for Immigration & Anor [2006] FMCA 436 at [34]) and accordingly rejected them. His Honour found that the appellant's claims that the Tribunal had denied her natural justice, asked irrelevant questions and failed to refer to independent country information were baseless. His Honour found that the Tribunal applied the correct test in determining, that the appellant could relocate within Malaysia. In any event, the Tribunal expressly stated that this finding was an alternative to the Tribunal's conclusion that the appellant was not persecuted for a Convention reason. His Honour found that the Tribunal had not made a jurisdictional error and dismissed the application with costs. 5 On 5 April 2006 the appellant filed a notice of appeal in this Court. The notice of appeal identifies only one ground of appeal from the Federal Magistrate's decision, namely that the Federal Magistrate erred in failing to find that the Tribunal failed to have regard to a relevant consideration. It seems from the appellant's submissions, filed on 18 August 2006, that the 'relevant consideration' referred to is the appellant's subjective fear of persecution. It is clear from the Tribunal's decision that it did consider the appellant's claims to fear the conduct of her work supervisor and the Islamic political parties described above, and more generally the prospect of living in Malaysia where Islam is the official religion. Indeed as noted above, the Tribunal accepted that the appellant had been subjected to sexual harassment by her supervisor. However, the critical aspect of the Tribunal's decision was its finding that the conduct that the appellant was subjected to, and claimed to fear, was not persecution for a Convention reason. 6 In her written submissions, the appellant claimed that the Tribunal had been biased however at the hearing she expressly declined to press this claim. She said that the submissions had been written by a friend who may have misunderstood her. Ultimately the appellant explained that she came to the Federal Court so that she would have the opportunity to put her case for the grant of a protection visa again. I explained to the appellant that a rehearing on the merits is not within the jurisdiction of this Court or of the Federal Magistrates Court. 7 I agree with the Federal Magistrate that there is no reviewable error in the decision of the Tribunal. The Tribunal's finding about the reason for the supervisor's conduct was open to the Tribunal on the evidence before it. I do not need to consider the question of relocation as it is clear from the Tribunal's decision that its conclusion on this point was in the alternative to its conclusion that the appellant did not have a well-founded fear of persecution for a Convention reason. Accordingly, the appeal must be dismissed and the appellant must pay the first respondent's costs. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.