Basoeki v Minister for Immigration and Multicultural Affairs

[1998] FCA 1230

FEDERAL COURT OF AUSTRALIA

IMMIGRATION – review of decision of Refugee Review Tribunal – no point of general principle

Migration Act 1958 (Cth), s 476

BASOEKI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 508 of 1998

MADGWICK J
9 SEPTEMBER 1998
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY	NG 508 of 1998

BETWEEN:

EDDY MOELJONO BASOEKI

APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE(S):	MADGWICK
DATE OF ORDER:	9 SEPTEMBER 1998
WHERE MADE:	SYDNEY

SHORT MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs.

IN THE FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY	NG 508 of 1998

BETWEEN:

EDDY MOELJONO BASOEKI

APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE(S):	MADGWICK
DATE:	9 SEPTEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:  This is an application for review of a decision of the Refugee Review Tribunal constituted by Ms Ford.  The Tribunal determined not to interfere with the decision by a delegate of the Minister to reject the application made by the applicant for a protection visa.  That raised the question of whether he had the status of a refugee under the 1951 Convention as amended by the 1967 Protocol.  

The case presented by the applicant was that he was outside the country of his nationality, Indonesia, owing to a well founded fear of being persecuted for reasons of political opinion and was unable or, owing to such fear, unwilling to avail himself of the protection of that country.

The applicant was born in 1962 and at the age of 17 years came to Australia in 1980 on a tourist visa.  He stayed until 1985 but at the instance of the Australian authorities left the country in that year.

The applicant’s case as presented to the Tribunal was that in 1986 he became a member of the Partai Democracy Indonesia (PDI).  He became a Deputy in this party and this involved his attending meetings and sometimes travelling to Jakarta in relation to an election campaign being waged by the PDI for elections which occurred in 1987.  The PDI had the view that President Soeharto and his family were more concerned with enriching themselves than the welfare of ordinary Indonesians, that it was time for a new President, that the President's Golka Party had procured unfair elections in Indonesia, and was the means by which a military dictatorship operated.

About December 1986 the applicant participated in a demonstration against the government and the applicant claimed that he made a speech at that rally.  A number of people were arrested but he escaped.  Ten months later he heard that he was wanted by the authorities, a detailed fellow member of the PDI having revealed his name to them.  He claimed that he was formally charged and was branded as a  Communist.  He left his home town and worked in various places to earn enough money to come to Australia. 

His claim was that the authorities were still looking for him and that as recently as mid 1996 had sought him at his parents' house.  He had been in Australia since December 1987 and claimed that he had not known that Australia could protect him until after he was apprehended and was detained at Villawood in 1996.

The matter is of profound concern to Mr Basoeki.  He has lived in this country for over 10 years; he has family and work here.  He tells me that he is of Chinese ethnicity and that economic conditions are, as everybody knows, grim in Indonesia and that from time to time persons of Chinese ethnicity are at risk of racist violence.  He says that he has a life here and little hope of one in Indonesia.  I mention these matters to indicate that I am well aware of the seriousness of the issues from his point of view and to indicate that, although I deal with the matter orally, it does not mean that I have not given the matter anxious consideration in his interests.

He appears unrepresented and with a capable interpreter.  As usual in these cases, he evinces no comprehension of the notion of an error of law.  He confines himself to pleas that the Court intervene to help him and arguments based on hardship, as much as anything else.  Affecting as these are, they can hardly affect the legal result.

In his application for an order of review, he fails to set out particulars of any supposed error of law, except that he said that:

“The interpreter in the Refugee Review Tribunal hearing was not interpreting properly.”

There was no evidence in the strict sense before me about this but I sought, by questions directed to Mr Basoeki at the bar table, to try to get a feel, as best I could, as to whether there might be any substance in this claim.  I think there was not.  I think it is an afterthought based on a very minor error in translation as to whether November or December was the month of his birth that gave rise to this desperate claim.  I am not satisfied that there was any inadequacy of the interpretation arrangements.  Indeed, at an early point, the Tribunal member sought to establish that Mr Basoeki was happy with the interpretation arrangements. 

As one would expect of a person who has had a total of 16 years in this country, the applicant’s own English is quite good for ordinary purposes, although I do not blame him for seeking an interpreter for so serious a proceeding as this and that before the Tribunal.  However, his English would be good enough to enable him to comprehend if things were going seriously off the rails in relation to what the interpreter might be telling the Tribunal.

It is otherwise enough to say that, for reasons given by the Tribunal, the member who constituted the Tribunal did not believe the applicant as to crucial matters in his story.  She demonstrated, as she said, that “the applicant has enlarged and varied his claims over time.”  Of particular note, it would seem to me is that, he told her that on being questioned about details of the performance of the PDI at the 1987 elections which, as a keenly interested office holder in that party as he was representing himself to be, he would be expected to know, his ignorance could be accounted for by the fact that he had actually left for Australia before the elections were held.  From other material, the Tribunal established that the elections were held in May of 1987 but the applicant did not come to Australia until December.  This was a clear opportunistic lie.  The Tribunal otherwise seems unexceptionally to have had regard to the source material and was critical of the applicant's case. 

However, quite apart from matters going to his credit, there would appear to be a very great obstacle in acceptance of his story because he told the Tribunal, and it is the fact, that the PDI is at present and at the time the Tribunal considered the matter, a legal political party in Indonesia. 

The Tribunal rejected accounts that the applicant had recently been sought by security police at his home.  This seems quite inconsistent with his having, without any trouble, obtained the renewal of his Indonesian passport in the light of what is known of the maintenance of black lists of political suspects at Indonesian embassies abroad. 

Despite my misgivings about yet another resort by the Tribunal to credit findings in this case, it seems to me that the credit findings are well-documented and indeed inevitable, and that this is not a case in which there can be any legitimate criticism in a sense of legal error cognisable by the Court pursuant to the Migration Act, on the widest view of matters that the Court might take into account.

It seems inescapable to me that the application must fail and I dismiss it.  The applicant is to pay the costs of the respondent.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick

Associate:        

Dated:             9 September 1998

Applicant in person
Counsel for the Respondent:	F Backman
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	9 September 1998
Date of Judgment:	9 September 1998