Applicant S306 of 2003 v Refugee Review Tribunal

[2003] FCA 1611

FEDERAL COURT OF AUSTRALIA

Applicant S306 of 2003 v Refugee Review Tribunal [2003] FCA 1611

APPLICANT S306 OF 2003 v REFUGEE REVIEW TRIBUNAL & ORS

N996 OF 2003

EMMETT J
4 DECEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N996 OF 2003

BETWEEN:

APPLICANT S306 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

COMMONWEALTH OF AUSTRALIA
THIRD RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

4 DECEMBER 2003

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        the application be dismissed;

2.        the applicant pay the second 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	N996 OF 2003

BETWEEN:

APPLICANT S306 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

COMMONWEALTH OF AUSTRALIA
THIRD RESPONDENT

JUDGE:	EMMETT J
DATE:	4 DECEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant, who is a citizen of Indonesia, arrived in Australia on 11 October 1995.  On 24 October 1995, he lodged an application for a protection visa under the Migration Act 1958 (Cth). On 21 August 1996, a delegate of the second respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refused to grant a protection visa and, on 24 September 1996, the applicant sought review of that decision by the Refugee Review Tribunal (‘the Tribunal’). On 28 October 1997, the Tribunal affirmed the decision not to grant a protection visa.

2. The applicant subsequently became a party to a proceeding in the High Court seeking prerogative writ relief in respect of the Tribunal’s decision.  On 25 November 2002, the High Court granted leave to a group of persons, including the applicant, to file an application to the High Court seeking prerogative writ relief in respect of the Tribunal’s decision.  On 17 June 2003, a draft order nisi was filed on behalf of the applicant in the High Court.   That matter was then remitted to this Court.

3. On 27 October 2003, I ordered the applicant to file and serve, on or before 24 November 2003, a statement of contentions of relevant facts and law and any affidavits upon which the applicant intends to rely at the hearing.  There has been no compliance with that direction.  However, on 24 November 2003, the Court received a request for an extension of time.  The applicant said that he had been assigned an adviser under the legal advice scheme who had agreed to advise him on his case.  The legal adviser was identified as Mr Viv Hooton.  The request said that Mr Hooton ‘… has only just received my Green Book’.  That appears to be a misapprehension since there is no practice of providing a ‘Green Book’ in relation to matters of this kind.

4. At the directions hearing today, the applicant renewed his request for an extension of time.  He said that he required the extension in order to make an application to the Minister.  It appears that he has received advice from Mr Hooton.  I draw the inference that the only advice that he has received is that he has no basis for challenging the decision of the Tribunal and that he should make an application to the exercise of discretionary power by the Minister.  That being so, there is no utility in granting an extension of time for compliance with the direction of 27 October 2003.

5. I have read the reasons of the Tribunal for affirming the decision to refuse a protection visa.  The Tribunal found the applicant to be a reasonably credible witness.  To the extent that there was some discrepancy between the claims made in his written submissions to the Tribunal and the claims made at the hearing, the Tribunal accepted the evidence as presented by the applicant at the hearing and informed the applicant of its position in that regard.

6. The applicant made broad claims of racial discrimination against the ethnic Chinese minority in Indonesia.  The Tribunal accepted that there is wide-spread discrimination against people of Chinese descent in Indonesia, particularly in relation to some aspects of employment, education and the freedom to practice one’s religion fully.  However, the Tribunal considered that the independent evidence does not suggest that people of Chinese ethnicity are excluded from education or employment or face serious restrictions to their livelihood.  Indeed, the applicant did not make any such claims to the Tribunal.  In relation to the applicant’s claims that there is a general lack of democracy and freedom of speech in Indonesia, the Tribunal was not satisfied that the applicant would face persecution for those reasons.

7. The Tribunal accepted that the applicant has a genuine fear of returning to Indonesia because of difficulties and confrontation with a Mr Byung.  However, the Tribunal did not accept that the applicant’s fear the threats and physical assault against him by Mr Byung were for a Convention reason.  The dispute between the applicant and Mr Byung arose out of business dealings or thwarted business dealings.  The Tribunal was unconvinced that any harm that the applicant fears has come about for reasons of his ethnicity or his religion.  Rather, his fear has arisen because of Mr Byung’s response to the applicant’s repeated refusal to give him credit in the context of business dealings.

8. There is no error on the face of the Tribunal’s reasons and the applicant has produced no material to suggest that there is any basis upon which the Court could grant relief in respect of the Tribunal’s decision.  The Minister applies pursuant to O 10 r 7(2) of the Federal Court Rules for dismissal of the application by reason of the failure to comply with the direction I gave on 27 October 2003.  In the circumstances, I propose to accede to that application. 

9. Accordingly, I propose to order that the application be dismissed and that the applicant pay the Minister’s costs.

I certify that the preceding nine (9) 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:	4 December 2003
Date of Judgment:	4 December 2003