SZITK v Minister for Immigration & Multicultural Affairs [2007] FCA 164

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.