Applicant S29/2002 v Refugee Review Tribunal

[2003] FCA 1608

FEDERAL COURT OF AUSTRALIA

Applicant S29/2002 v Refugee Review Tribunal [2003] FCA 1608

APPLICANT S29 OF 2002 v REFUGEE REVIEW TRIBUNAL & ANOR

N200 OF 2003

EMMETT J
10 NOVEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N200 OF 2003

BETWEEN:

APPLICANT S29/2002
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

10 NOVEMBER 2003

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        the application be dismissed;

2.the applicant pay the Minister’s costs of the proceeding, including the notice of motion.

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	N200 OF 2003

BETWEEN:

APPLICANT S29/2002
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:	EMMETT J
DATE:	10 NOVEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant, who is a citizen of Indonesia, arrived in Australia on 15 March 1999.  On 8 April 1999, she lodged an application for protection (class AZ) visa under the Migration Act 1958 (Cth) (‘the Act’). On 26 October 1999, a delegate of the second respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refused to grant a protection visa. On 16 November 1999, the applicant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of that decision. On 11 October 2000, the Tribunal affirmed the decision not to grant a protection visa.

2. On 4 March 2002, the applicant filed a draft order nisi in the High Court of Australia seeking orders that the Minister and the Tribunal show cause why, in respect of the Tribunal’s decision, writs of mandamus and certiorari should not be issued.  On 6 February 2003, Gaudron J made orders remitting that proceeding to the Federal Court of Australia.  The proceeding came before me for directions on 14 March 2003.  At that stage, the applicant was represented by Adrian Joel & Co, Solicitors, who had filed the draft order nisi in the High Court.

3. I stood the matter over for further directions on 2 May 2003 and, on 9 May 2003, I made orders that the applicant file and serve a statement of claim and any affidavits intended to be relied upon on or before 4 July 2003.  That direction was not complied with.  On 30 July 2003, Adrian Joel & Co filed a notice of withdrawal of solicitor and an affidavit in support of that notice.  The affidavit asserted that the applicant had not provided Adrian Joel & Co with certain material that they had requested in connection with the proceeding.

4. The matter came back before me for directions on 15 August 2003.  On that day, I varied the directions of 9 May 2003 to require the applicant to file and serve a statement of claim and any affidavits on or before 26 September 2003.  I stood the matter over for further directions on 27 October 2003. 

5. The applicant says, and she has not been challenged with this assertion, that she was not aware that the matter came before the Court on 9 May 2003 and was not aware of the orders made for a statement of claim and affidavits to be filed on or before 4 July 2003.  However, she did receive a letter from Adrian Joel & Co, at some time between May and July 2003, informing her that they were withdrawing their services.  She also received a letter dated 31 July 2003 from the Minister’s solicitor.  That letter was received in about the first week of August 2003 and informed the applicant that the matter was listed for directions on 15 August 2003. 

6. The applicant was therefore present in Court when I made directions on 15 August 2003.  She says that that day was the first time when she became aware of the previous orders that had been made.  She was handed a notice by a representative of the Minister’s solicitor at Court on 15 August 2003 informing her of the orders that I then made.  She read the notice which said that she was to file and serve a statement of claim and any affidavits on or before 26 September 2003.  That direction was not complied with. 

7. The applicant says that she was given the name of a solicitor whom she saw on 20 October 2003.  That solicitor prepared an affidavit for her but she was not happy with the affidavit.  She says the reason for her being unhappy was that the affidavit ‘did not go into enough detail about the individual experiences of threats and harassment’.  She therefore decided not to file the affidavit. 

8. The applicant subsequently made contact with another solicitor, Mr Myers, of Malouf Solicitors.  That contact was made on 23 October 2003 and when the matter came before me on 27 October 2003, Mr Myers sought leave to appear, and did appear. 

9. In the meantime, the Minister’s solicitor had written to the applicant on 8 October 2003 referring to the failure to comply with the directions given on 15 August 2003 and informing the applicant that, if she failed to comply with the directions by 15 October 2003, the Minister would give instructions to file a notice of motion seeking summary dismissal of the proceeding.  No statement of claim or affidavits were received by that date.

10. On 27 October 2003, Mr Myers asked that the proceeding be adjourned to enable compliance with the earlier directions.  I therefore stood the matter over to 7 November 2003.  On that day, Mr Myers appeared again and sought leave to withdraw, apparently on the basis that the applicant had failed to put him in funds necessary to enable him to act.  I gave Mr Myers leave to withdraw on 7 November because of constraints in the time available.  Having regard to my commitments in Full Courts, I adjourned the matter to today. 

11. In the meantime, on 3 November 2003, the applicant filed a further affidavit making assertions concerning her treatment in Indonesia that may have been relevant for a proceeding before the Tribunal but which could not be taken into account by this Court in dealing with the limited powers of review open to it.   

12. The issue before me is whether I should dismiss the proceedings summarily pursuant to O 10 r 7(1)(a) of the Federal Court Rules, the relief sought by the Minister in her notice of motion filed on 27 October 2003.  Order 10 r 7(1)(a) provides that where a party fails to comply with an order of the Court directing that party to take a step in the proceeding any other party may move the Court on notice, if the party in default is an applicant, for an order that the proceeding be stayed or dismissed as to the whole or any part of the relief claimed in the proceeding.

13. The grounds stated in the draft order nisi filed in the High Court were, first, that there was a failure to comply with s 418(3) of the Act that gave rise to jurisdictional error of a type for which relief could be granted under Pt 8A of the Act, as amended in 2001, and, secondly, that the Tribunal had informed the applicant in a letter of 6 September 2000 that it had looked at all the material relating to the application when in fact it had not done so, thereby giving rise to a denial of natural justice constituting jurisdictional error of a type for which relief could be granted under Pt 8A of the Act, as amended in 2001.

14. There has been no evidence placed before me to suggest that either of those grounds has any substance.  When the matter was called on today the applicant sought leave to file an application for an order of review stating grounds as follows:

    (1)the Tribunal made an error of law by not finding that the applicant is a refugee within the meaning of the Refugees’ Convention;

    (2)the Tribunal failed to give due weight to the evidence of the applicant that Indonesia is a very corrupt country.

    No particulars were furnished in respect of either of those grounds.

15. It is, of course, a serious matter for an applicant for a protection visa to be refused such a visa.  The Parliament has severely restricted the extent to which decisions of the Minister and the Tribunal under view may be the subject of relief.  Be that as it may, the decision of the Tribunal was made in October 2000.  The first step taken to challenge that decision was not taken until March 2002.  Nothing has been done since that time to formulate a basis upon which any relief could be granted in respect of the Tribunal’s decision.

16. I have considered the Tribunal’s reasons for its decision.  The Tribunal accepted that the applicant is an ethnic Chinese Christian woman from Jakarta.  It had regard to a range of generalised claims made by her about the way in which ethnic Chinese Christians have been treated by Indonesian society in the past and, in particular, the way they fared during the intense civil unrest that occurred in May 1998.  The applicant claimed before the Tribunal that her shop-house was burnt down.  However, the Tribunal observed that no details of how that occurred or when it occurred were provided.  The Tribunal characterised the applicant's claims as very general and lacking in any detail that would assist the Tribunal in assessing her claims.

17. On the other hand, the Tribunal accepted that the applicant is apprehensive about returning to Indonesia given the events of the recent past.  The Tribunal also accepted that the applicant may, in the past, have suffered some minor forms of harassment and discrimination as an ethnic Chinese woman throughout her life.  The Tribunal noted that law and order had been seriously lacking in Indonesia for some time and that there are many poor and desperate people, especially after the Asian economic crisis.

18. However, the Tribunal was not satisfied that the general level of lawlessness in Indonesia generally amounted to persecution for a Convention reason.  The Tribunal accepted that there had been a long history of discrimination and harassment of the ethnic Chinese in Indonesia but found that the Chinese have generally been able to prosper in Indonesia and control large quantities of the wealth of that country.

19. The Tribunal accepted that severe violence occurred throughout Indonesia in May 1998 and that it was possible that the applicant’s shop-house was destroyed during that period.  That, however, was not specifically stated by the applicant.  The Tribunal also accepted that, during that period, property was destroyed, Chinese women were raped and many people were killed.  The Tribunal characterised that as an exceptional period in Indonesia’s history caused largely by the severe economic crisis that hit Indonesia hardest of all the Asian nations.

20. The independent evidence before the Tribunal indicated to the Tribunal that there had been no further significant ethnically tainted violence in Indonesia since early 1999 and that the violence that occurred between May 1998 and early 1999 was far less severe than that which occurred in May 1998.  The Tribunal considered that the evidence showed that the Indonesian Government is neither complicit in the later attacks nor is it unwilling to protect the victims of such attacks.

21. The Tribunal accepted the applicant’s distrust of the Indonesian Government but found that the significant change in the circumstances in Indonesia in the two years following the downfall of former President Soeharto gives both ethnic and religious minorities cause for optimism.  The Tribunal was not satisfied, therefore, that there is a real chance that the violence of May 1998 will be revisited in the reasonably foreseeable future.

22. The applicant made no specific claims of persecution in Indonesia as a Christian and, while the Tribunal understood the applicant’s apprehension about returning to Indonesia and her desire to remain in Australia, the Tribunal was not satisfied on the basis of the evidence before it that she had a well-founded fear of persecution in Indonesia.

23. The only material that has been put before the Court by the applicant is evidence designed to challenge the findings of fact made by the Tribunal.  Nothing has been put before the Court to suggest that there is any ground upon which the Court would have jurisdiction or power to interfere with the decision of the Tribunal.  The applicant has had ample opportunity to do so.  In the circumstances, I consider that it is appropriate to accede to the Minister’s application. 

24. Accordingly, it follows that the application should be dismissed with costs.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:            22 January 2004

Counsel for the Applicant:	The applicant appeared in person with the assistance of an interpreter
Solicitor for the Respondents:	Australian Government Solicitor
Date of Hearing:	10 November 2003
Date of Judgment:	10 November 2003