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MIGRATION - RRT refused protection visa to Thai Muslim - applicant failed to attend tribunal hearing - no error in tribunal procedure or reasons.

SZDMZ v Minister for Immigration [2004] FMCA 846 (10 November 2004)

SZDMZ v Minister for Immigration [2004] FMCA 846 (10 November 2004)
Last Updated: 30 November 2004


[2004] FMCA 846

MIGRATION - RRT refused protection visa to Thai Muslim - applicant failed to attend tribunal hearing - no error in tribunal procedure or reasons.

Migration Act 1958 (Cth), ss.483A, 36(2), 426A, 474(1), 477(1)A

Judiciary Act 1903 (Cth), s.39B




File No:

SYG 1338 of 2004

Delivered on:

10 November 2004

Delivered at:


Hearing date:

10 November 2004

Judgment of:

Smith FM


Counsel for the Applicant:

In person

Counsel for the Respondent:

Mr J Smith

Solicitors for the Respondent:

Blake Dawson Waldron


(1) Objection to competency upheld.

(2) Application dismissed.

(3) The applicant to pay the respondent's costs in the sum of $4250.




SYG 1338 of 2004






(revised from transcript)

1. This is an application under s.483A of the Migration Act 1958 (Cth), seeking judicial review under s.39B of the Judiciary Act 1903 (Cth) in relation to a decision of the Refugee Review Tribunal dated 23 July 2003 and handed down on 19 August 2003. The application for review was filed on 7 May 2004.

2. The applicant's application for a refugee protection visa was filed on

27 February 2003 and was refused the following day, on 28 February 2003. In her application she set out a short explanation for leaving Thailand and seeking a protection visa:

Why did you leave that country?

I am an applicant to apply for a protection visa and claim for a refugee status under the Refugee Convention owing to my well-founded fear of being persecuted for reasons of my religion. Being a member of a Muslim Welfare Group based at the Mosque in the City Phetchabun where my family and I, we lived in that area since I was born. My activities within the organisation were drawn attention from local authorities specially the local police forces because the government fears that organised religion may weaken its authorities and influence by serving as political, social and spiritual alternatives to the authority of the central government. Therefore, my family was subject to an investigation carried out by the internal affairs department and apparently I had the real chance to face harm amounting to persecution for my religious observance and activities.

3. She also said:

What do you fear may happen to you if you go back to that country?

My involvement in the kind of religious activities which would give rise to a well founded fear of persecution if I go back to Thailand.

Who do you think will harm/mistreat you if you go back?

The government proposal to name Therevada Buddhism the official religion on the grounds that it would create social division and be offensive to other religious communities in the country including Muslim. If I go back I may be mistreated by the local police and other local authorities.

Do you think the authorities of that country can and will protect you if you go back? If not why not?

No, I don't think the authorities of the current government will protect me if I go back owing to my deep involvement with the pro-Islamic group to fight against the imbalance treatment within the main religious practising in Thailand.

4. The delegate considered country information concerning the laws of Thailand and the state of religious freedom in Thailand, and concluded that she was satisfied that the applicant did not meet s.36(2) of the Migration Act and the criteria prescribed in the Migration Regulations 1994, Schedule 2, Part 866 or 785.

5. The applicant then lodged an appeal to the Refugee Review Tribunal on 27 March 2003 stating a home address and a mailing address, but providing no further details of her claims for refugee protection. On

27 March 2003 a letter was sent to her mailing address, which was a post office box, acknowledging the appeal and foreshadowing that if the Tribunal was unable to make a decision in her favour merely on the papers she would be invited to a hearing. The letter told her that she would be told the date and time of a hearing and where it would be held. It contained this information:

What is a hearing and why is it important?

A hearing is your opportunity to give the Tribunal evidence to support your application. Evidence can include:

* what you tell the member at the hearing

* information or documents you give the Tribunal

* information or documents you ask others to give to the Tribunal

6. A further letter was sent to her on 21 May 2003. This invited her to attend a hearing "to give oral evidence and present arguments in support of your claims" to be held on Monday 16 June 2003. The letter asked her to complete a response to hearing invitation form, and to send any new documents or written arguments she wanted the Tribunal to consider.

7. On the evidence before me I am satisfied that it was sent by registered post both to the applicant's post office box mailing address and to the residential address she had shown on her application for review. However, from the Tribunal's reasons, it appears that no response was received to the invitation sent to the postal address, and the invitation to the hearing which was sent to the home address was returned to the Tribunal. Pursuant to s.426A of the Act, it decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

8. Before me, the applicant acknowledged that she did not attend the hearing, and said that this was because she had changed her address without telling the Tribunal.

9. I am unable to conclude that any procedure followed by the Tribunal caused an unfairness to the applicant, nor am I able to identify any procedure set out in the Migration Act which the Tribunal is required to follow and which it did not observe. In the absence of the applicant, the Tribunal was entitled under s.426A to decide to make a decision without taking further action.

10. In its reasons for decision, the Tribunal refers to the claims made by the applicant in her original application form, and assesses them as follows:

The applicant's claims are lacking in detail. The applicant did not provide any details of the Muslim Welfare Group she claimed to belong to. The applicant did not provide details of what her activities were in the Muslim Welfare group. The applicant did not provide details of what her role was in the Muslim Welfare group. The applicant did not state when her activities within the organisation attracted the local authorities. The applicant did not state when her family was subjected to an investigation. The applicant did not state what happened as a result of that investigation. The Tribunal is unable to be satisfied on the information before it that the applicant has suffered harm amounting to persecution because of her religion.

The applicant's claims appear inconsistent with the independent information. The independent information before the Tribunal indicates that the law provides for freedom of religion, and the Government generally respects this right in practice. The Constitution states that discrimination against a person on the grounds of "a difference in religious belief" shall not be permitted. Ten percent of the Thai population are Muslim and Islam is the dominant religion in four of the five southernmost provinces. The Government has longstanding policies designed to intergrade Muslim communities into society through developmental efforts and expanded educational opportunities, as well as policies designed to increase the number of appointments to local and provincial positions where Muslims traditionally had been under-represented. The State subsidizes the activities of the Islamic community supporting Muslim institutes of higher education: providing daily allowances for Muslim clerics who hold administrative and senior ecclesiastical posts. It also provides an annual budget for the renovation and repair of Muslim mosques and the daily upkeep of the Central Mosque in Pattani. The generally amicable relationship among religions in Thai society contributes to religious freedom

The Tribunal is unable to be satisfied on the evidence before it that the applicant has a well founded fear of persecution within the meaning of the Convention.

11. I am unable to identify any error of law in the reasoning shown in the above paragraph. Necessarily, I am also unable to find a jurisdictional error such as would allow me to avoid the effects of ss.474(1) and 477(1A) of the Migration Act, which, as interpreted by the High Court of Australia, prevent this Court giving any relief to an applicant in the absence of jurisdictional error.

12. In her application to this Court, the only ground stated is that the Tribunal erred in law by not addressing criterion 3004(d) of the Migration Regulations. There is no substance in this criticism since that regulation does not apply to decisions in relation to protection visas. Moreover, the Tribunal was unable to be satisfied as to an essential criterion for such visas, being the requirements of s.36(2) of the Act, and was entitled to refuse the visa for that reason alone.

13. The applicant was directed at the first hearing date in this Court to file further particulars and a written submission prior to the hearing today, but sent only a document headed: "Outline of Submissions" which was received yesterday. That document contains paragraphs, often seen in this Court, which have no apparent relevance to the present decision of the Tribunal. It contains allegations of bias and bad faith by the Tribunal, but provides no substance for that allegation.

14. It also makes a claim, repeated by the applicant to me herself today, that she has a fear of persecution if returned to Thailand. Unfortunately, as has been explained to her it is not the function of the Court, when reviewing the Tribunal's decision, to itself form any opinions on whether she is or is not a refugee.

15. For the above reasons I must dismiss her application and uphold the Notice of Objection to Competency.


16. I order the applicant to pay the respondent's costs in the sum of $4250.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 24 November 2004
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