NAAQ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 253

FEDERAL COURT OF AUSTRALIA

NAAQ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 253 MIGRATION – application for judicial review of decision of Refugee Review Tribunal - no point of principle.

Migration Act 1958 (Cth) NAAQ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 1445 of 2001 MOORE J 19 MARCH 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1445 of 2001

BETWEEN: NAAQ

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MOORE J

DATE OF ORDER: 19 MARCH 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed with 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 N 1445 of 2001

BETWEEN: NAAQ

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MOORE J

DATE: 19 MARCH 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT

Introduction 1 This is an application by NAAQ ("the applicant") for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 25 September 2001 affirming a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister"), refusing to grant the applicant a protection visa. The criterion for the grant of such a visa is that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees of 28 July 1951 as amended by the Protocol Relating to the Status of Refugees of 31 January 1967 ("the Convention").

Background 2 The applicant, who is a citizen of Malaysia, arrived in Australia on 19 January 2000. On 6 March 2000 he lodged an application with the Department of Immigration and Multicultural Affairs for a protection visa under the Migration Act 1958 (Cth) ("the Act"). On 14 March 2000 a delegate of the Minister refused to grant a protection visa and on 3 July 2000 the Tribunal affirmed the delegate's decision. The applicant then sought review of that decision by this Court which remitted the matter to the Tribunal, differently constituted, for determination according to law. 3 Essentially the applicant fears persecution, if forced to return to Malaysia, on the grounds of his ethnicity, Christianity and prior drug-taking history.

The Tribunal's reasons 4 In a section in its decision headed "Claims and Evidence", the Tribunal set out the claims made by the applicant in his application for a protection visa. A summary of the applicant's account (derived from the Tribunal's reasons) is set out below. 5 The applicant, who was born in 1959, is of Chinese ethnicity and of the Christian faith. He resided at the same address in Malaysia from birth until his departure for Australia in January 2000. He received nine years education. In 1976, he became addicted to heroin as a consequence, he claimed, of the racial discrimination he suffered in Malaysia. 6 In 1979 he was imprisoned for a period of nine months for his use of heroin. He was assaulted while in prison, being particularly targeted because of his Chinese origin. In an effort to escape further mistreatment and imprisonment, he travelled to Japan where he found employment and endeavoured to earn the deposit necessary to purchase a house in Malaysia. He remained in Japan from 1989 until 1993. On his return to Malaysia he was continuously employed between 1993 until 1998, but was periodically imprisoned, as a result of his drug usage. On one occasion, in 1995, while imprisoned he was subjected to beatings, the effect of which have resulted in him requiring on-going medical treatment. 7 Throughout the period of his addiction (about twenty-two years), the applicant continued working to support his drug habit although was unable, on occasion, to carry out his work-related duties. During this time he was frequently detained by the police and subjected to urine tests. A consequence of a positive reading to heroin or methadone is to be placed in a rehabilitation centre. This occurred on two occasions, in 1993 and 1998, although at other times when he was detained the applicant was able to bribe the police and subsequently avoid being held. Nevertheless, he was imprisoned on six separate occasions between 1979 and 1996. 8 As a supporter of Anwar Ibrahim, the former Deputy Prime Minister of Malaysia who is also of Chinese origin (as alleged by the applicant), the applicant participated in about four or five demonstrations against Mr Ibrahim's imprisonment. On the last occasion he was arrested by the police who made him take a urine test. A positive reading to methadone resulted, and despite his pleas to the police that a period of detention would result in him being unable to meet his loan repayments, he was sent to a rehabilitation centre for a period of two years. Subsequently, his home was sold and his marriage ended, with his wife and child leaving him. 9 With the money remaining from the sale of his home the applicant engaged a solicitor to appeal against his incarceration. He was successful and was subsequently released on 20 December 1999. Having lost his home and family he resolved to leave Malaysia and start a new life in Australia, in a bid to escape the harassment he was being subjected to from the police. He departed Malaysia on 18 January 2000 for Australia. 10 The Tribunal set out its findings in a section in its decision titled "Findings and Reasons". It began by accepting the applicant to be a national of Malaysia, before turning to the applicant's claim of persecution based on his ethnicity. It said: "Several of the applicant's claims relate to his being Chinese. The applicant did not specify that he faces persecution on this basis, but rather that in his particular situation as a drug-addict he has often been harassed and targeted by the police because he is Chinese. However permeating the applicant's evidence is a general claim that the Chinese as a whole are discriminated against or disadvantaged in Malaysia. The Tribunal has considered this general claim but, on all the evidence before it, it is not satisfied that the applicant faces mistreatment amounting to persecution in Malaysia because he is Chinese." 11 The applicant's religion and his claim of persecution on the basis of his Christianity were then considered. After accepting the applicant to be a practising Christian, the Tribunal referred to independent evidence and concluded that Christians in Malaysia were not subjected to treatment which amounted to persecution in the Convention sense. It stated: "Christians represent 8% of the Malaysian population, and Christianity is the third largest religion in Malaysia. While the Country Report indicates a strong emphasis on Islam as the official religion in Malaysia, which has a policy of 'infusing' Islamic values into the administration of the country, this evidence also indicates that followers of Christianity are generally able to practise their religion freely. … (T)he Tribunal is prepared to accept that the facilities for Christian prayer in detention or rehabilitation centres may be restrictive. However the Tribunal does not accept that such physical limitations in these specific circumstances suggest that Christians face treatment amounting to persecution in Malaysia, or that the applicant faces persecution on this basis. Moreover the Tribunal finds that the applicant's evidence does not disclose that he personally experienced serious restrictions on his religion in Malaysia." 12 In relation to the applicant's alleged support of Anwar Ibrahim, the Tribunal expressed scepticism as to the extent of this support. While accepting that the applicant was "generally sympathetic to Anwar's situation", the Tribunal referred to the applicant's participation in the demonstrations and held: "(H)e claimed that he last protested in October 1998, when the police detained him and admitted him to a rehabilitation centre. However earlier in the hearing the applicant spoke at some length about this October 1998 incident without linking it to a protest situation. His earlier evidence was to the effect that he was detained in October primarily because of his drug addiction, and possibly because he was Chinese. The applicant insisted that, in addition to his drug addiction, the police are aware of his support of Anwar and might target him as a consequence. …On his own evidence he encountered no other problems with the police because of his claimed protests, in which his role was that of a minor participant. He did not participate in any further protests after October 1998, and had no further problems on this account. … (T)here is no independent evidence before the Tribunal that there is any continuing targeting of low-profile Anwar supporters by the Malaysian authorities, or that they face persecution in Malaysia". 13 The Tribunal next addressed the applicant's claim of persecution based on his history of drug addiction. While it was satisfied that the treatment of the applicant in relation to his heroin addiction was in accordance with a law of general application, it stated: "However the applicant argues that on some occasions the police abused their powers. He claims that they sometimes forced him to undergo a urine test, extorted money from him, and admitted him to a centre even when he was drug-free or on Methadone if he refused (or was unable) to pay them. He also claims that on occasions he was mistreated while in police detention, or while in rehabilitation centres. … The fact that they ignored his efforts at rehabilitation by being on Methadone and, on the applicant's view, abused their powers is a circumstance that arose because of his drug-addiction. … In the Tribunal's view, any mistreatment or victimisation of the applicant by individual police officers arose because of their interest in him as a known drug-addict, who was clearly vulnerable to their approaches. The fact that he and other drug-addicts paid them money on many occasions no doubt fuelled their demands for more money. … The applicant's own evidence suggests clearly that, to the extent he suffered harm in the past at the hands of individual corrupt police or might face such harm in the future, the Malaysian state as a whole did not condone or tolerate that behaviour. The Tribunal accepts as genuine the documentary evidence submitted at hearing, being a Habeas Corpus Writ, and accepts his evidence … that by succeeding in his application before the High Court of Malaysia he obtained an early release from the [rehabilitation] centre. The Tribunal concludes that to the extent this success vindicates his views that the police acted beyond their power or abused their power, it also supports a conclusion that the judicial and state authorities in Malaysia do not condone the abusive action of individual officers." The Tribunal added: "In reaching this conclusion the Tribunal has considered whether the applicant's claim that he was harmed in the past, and faces harm in the future, because he is a Chinese, Christian, drug-addict in Malaysia might bring him within the ambit of the Convention reason of a 'particular social group'. However for both legal and factual reasons the Tribunal is not satisfied that the applicant faces harm amounting to persecution in Malaysia because of his membership of a particular social group." 14 The Tribunal concluded by finding that the applicant was not a person to whom Australia had protection obligations under the Convention, and affirmed the decision not to grant a protection visa.

Issues raised in the application for judicial review 15 The applicant was not represented in the proceedings in this Court. He spoke through an interpreter. In his application for judicial review the applicant identified two grounds. The first was an allegation that the Tribunal member was actually biased. The second was a general allegation that there was no evidence or a material to justify the making of the decision. I should note that the application was filed on 22 October 2001 and accordingly is subject to the regime of review established by Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). 16 However it is unnecessary to consider how the 2001 amendments to the Act might operate in a case such as the present. That is because the issues raised by the applicant are without substance. At the hearing the applicant indicated that he believed he had been treated unfairly. Accepting, for present purposes, that this submission was intended to raise the question of bias as alleged in the application, it is without foundation. There is nothing in material before the Court that would suggest that the approach adopted by the Tribunal was anything other than unexceptionable. The Tribunal's reasons appear to be a detailed and considered evaluation of the matters the appellant raised in support of his application for a protection visa. It may be that the applicant's complaint was that the Tribunal was negatively influenced by the applicant's heroin addiction. If so, it appears to me from the material I have considered, to be a baseless concern. 17 No ground of review has been made out. Accordingly the application should be dismissed with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate: Dated: 19 March 2002 Solicitor for the Applicant: The applicant appeared in person with the aid of an interpreter

Counsel for the Respondent: G Kennett

Solicitor for the Respondent: Blake Dawson Waldron

Date of Hearing: 12 March 2002

Date of Judgment: 19 March 2002