CAI17 v Minister for Immigration

[2019] FCCA 3392

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAI17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3392

Catchwords:
MIGRATION – Application for review of decision of the Administrative Appeals Tribunal – no jurisdictional error asserted in the grounds – whether the Tribunal made an error in their factual findings – whether the Tribunal did not act in good faith – whether the Tribunal did not comply with the relevant statutory requirements – whether the Tribunal was in error in finding that the applicant was a citizen of Indonesia – whether the Tribunal made an error in their analysis and findings regarding certain claims – whether the Tribunal failed to consider certain claims – impermissible merits review – no jurisdictional error revealed – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 5J, 36, 425, 476

Cases cited:

Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749
Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102; (2003) 77 ALD 23
FER17 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCAFC 106

Applicant: CAI17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1434 of 2017

Judgment of: Judge Nicholls

Hearing date: 1 November 2019

Date of Last Submission: 1 November 2019

Delivered at: Sydney

Delivered on: 27 November 2019

REPRESENTATION

Applicant: In person

Legal Representative for the Respondents: Ms K. Pieri

Solicitors for the Respondents: HWL Ebsworth Lawyers

ORDERS

1. The name of the first respondent is amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. The application made on 10 May 2017 is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $5600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1434 of 2017

CAI17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 10 May 2017 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”), made on 10 April 2017, which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse to grant the applicant a protection visa.

2. The evidence before the Court is contained in a bundle of relevant documents (the Court Book – “CB” – “RE1”), and the applicant’s affidavit of 10 May 2017, which accompanied his application to the Court. (See further below).

Background

1. The applicant is a citizen of Indonesia (items 18 and 19 at CB 16). He arrived in Australia on 8 June 1997 (item 47 at CB 23). His application for a protection visa was received by the Minister’s Department on 10 March 2015 (CB 5 – CB 40).

The Applicant’s Claims to Protection

1. The applicant outlined his claims for protection in his visa application at CB 34 – CB 36. These claims were summarised by the delegate as follows (at CB 78.6). On the evidence before the Court, this is a fair summary of the claims before the delegate:

   “…
   ● The applicant has been interested in music since his early youth so in 1997 he decided to visit Australia as a tourist to investigate and seek opportunities to study the rock and music influence of Australia.

   ● Should he return to Indonesia he will be a broken man in the financial and psychological sense. He will have no money to support himself nor will he have a home. He does not wish to return to Indonesia because he will be unemployed and homeless.

   ● He has never been persecuted in Indonesia.

   ● Indonesia does not have institutions or services to support the unemployed or homeless.”

The Delegate

1. The applicant attended an interview with the delegate on 20 July 2015 (CB 78.8). The delegate refused the grant of the visa on 5 August 2015 (CB 73 – CB 85).

2. The delegate was not satisfied that the applicant satisfied the definition of refugee, because his claims did not meet the requirements of s.5J(1)(a) of the Act, and therefore he was not owed protection under s.36(2)(a) of the Act (CB 80 – CB 82).

3. Further, the delegate found that the applicant’s claims did not constitute significant harm, and therefore he was not owed protection pursuant to s.36(2)(aa) of the Act (CB 82 – CB 85).

The Tribunal

1. The applicant applied for review to the Tribunal on 14 August 2015 (CB 86 – CB 92, and see also CB 93 – CB 95). The applicant submitted the following documents to the Tribunal:

   (1)A statement written by the applicant, dated 9 March 2015 (CB 96);

   (2)A letter from Very Reverend Zorbalas AOM, Parish Priest of the Saint Constantine and Saint Helen Greek Orthodox Church in Newtown, dated 23 April 2015 (CB 98);

   (3)A letter from Elwyn Chapman, Executive Director of “Jesus Cares Ministry Inc.”, dated 22 April 2015 (CB 99); and

   (4)Photographs and print outs of twitter posts (CB 105 – CB 125).

2. The applicant was invited to, and ultimately attended, a hearing before the Tribunal on 31 March 2017 (CB 100 – CB 101 and CB 126 – CB 127). Before the Tribunal, the applicant outlined similar claims to those before the delegate ([11] – [16] at CB 138, and see above at [4]).

3. However, in addition to those claims, the applicant raised religious and/or political claims. The Tribunal referred to the applicant’s new claims under the heading “Religious and/or political claims” as follows ([22] – [25] at CB 139):

   “22. When the applicant appeared before the Tribunal he introduced an entirely different set of claims which the Tribunal had to struggle to understand because of the disjointed, erratic and rambling delivery of his claims. His responses to questions put by the Tribunal in its attempt to understand his claims were often misdirected and unrelated to the questions asked and at times the interpreter had difficulty accurately conveying his responses, not for translating purposes but because of the content of his statements. The Tribunal sought to clarify what the applicant was meaning to convey on several occasions throughout the hearing and indicated to the applicant that it was having difficulty following his statements. Notwithstanding these difficulties, the Tribunal did not observe the applicant to be confused or distressed or exhibiting behaviour suggestive of someone who is not competent to give evidence. In the absence of any medical or other evidence to the contrary the Tribunal is satisfied the applicant was is a position to give evidence on the day of the hearing.

   23. Bearing in mind the above context, the following is the Tribunal’s best attempt to summarise the statements made by the applicant at hearing:

24. The applicant stated that his ancestors were Hindu and he cannot talk about Hinduism in Indonesia because it is a Muslim country. He said his task is to tell the Indonesian people about the true history of Islam and international history. He claims that Muslims have taken certain words and misrepresented them in their own teachings. He said that Muslims came to Indonesia in around 1825 and forbid Javanese people from playing music and attacked and destroyed Hindu temples. He said his ancestor had his arm chopped off. He also said that he has been following developments in Indonesia and the country is becoming more radicalised. He said that the Governor of Jakarta is a Christian and Islamists are against him. He said he has been explaining these misrepresented Islamic terms and the correct version of historical events in twitter posts and opposing Islamists who want to make enemies of Christian people. He said for this reason he will be arrested on return to Indonesia.

25. Toward the end of the hearing the Tribunal again sought to clarify its understanding of his claims in regard to his religious and/or political opinions. The Tribunal stated that it understood him to essentially be saying that he believes his mission is to expose Islam’s wrongdoings and its misrepresentation of history in their teachings and use of language. The applicant agreed that this is correct.”

[Error in the Original.]

1. The Tribunal noted that the applicant claimed to have been “active on twitter” and to have sent an email to a Muslim leader ([28] at CB 140). The Tribunal was not satisfied that the applicant’s twitter and email activity was credible, given that he only:

   “…newly introduced this claim at hearing and made no mention of his strident views about Islam in his application for a Protection visa despite acknowledging at hearing the serious problems which persons who hold differing views and speak out against Islam in Indonesia encounter. The Tribunal notes the applicant stated at hearing that he wanted to talk about the history of Islam in Indonesia at his earlier interview but did not know how to express those views. Despite the problems the Tribunal encountered understanding the applicant at times it did not find him reluctant to voice or express his views. In fact, the applicant was quite insistent and determined in the manner he presented his evidence at hearing. Overall, the Tribunal finds his evidence ill-explained and unconvincing and is not persuaded that his twitter and email activity only commenced in the weeks before the Tribunal hearing because he is new to the technology or due to his interest in recent reported news events in Indonesia. The Tribunal has placed significant weight on the fact the applicant has remained in Australia for nineteen years without regularising his status and is of the view he is highly motivated to find a way to remain in Australia.”

(See [33] at CB 141.)

1. Further, the Tribunal was not convinced that his email and twitter activity only began shortly before the Tribunal hearing, on account of the applicant being: “…new to the technology or due to his interest in recent reported news events in Indonesia” ([33] at CB 141). The Tribunal: “…placed significant weight on the fact the applicant has remained in Australia for nineteen years without regularising his status and is of the view he is highly motivated to find a way to remain in Australia.” (See [33] at CB 141).

2. The Tribunal was not satisfied that there was a real chance or real risk that the applicant would suffer serious or significant harm in relation to his religious and/or political claims ([40] at CB 142).

3. The Tribunal also considered the applicant’s claims concerning his financial situation and accommodation if he were to return to Indonesia. The Tribunal noted that these claims do not “fall within” with the refugee criterion, and that the applicant’s fears do not constitute significant harm under the Act ([41] – [42] at CB 142). Therefore, in all, the Tribunal concluded that the applicant was not owed protection under s.36(2)(a) or s.36(2)(aa) of the Act ([44] at CB 143).

Before The Court

1. The grounds of the application to the Court are in the following terms:

   “1. Part of protection visa
   2. You face real risk of suffering significant harm if you were removed from Australia”

[Errors in the Original.]

1. A Registrar of the Court made orders on 17 August 2017 and 17 November 2017, which, amongst other things, gave the applicant the opportunity to file an amended application and evidence by way of affidavit by 8 November 2017, and written submissions. Nothing had been filed by the applicant up to, and including, the date of the final hearing.

2. At the hearing the applicant appeared in person. He was assisted by an interpreter in the Indonesian language.

3. When asked if he had anything further that he wished to give to the Court, the applicant made reference to a document which contained references to “tweets”, but said he had not brought it with him.

4. It appeared that the applicant was referring to a bundle of documents he had given to the Tribunal (CB 130 – CB 131), which were a series of “tweets”, with “replies”, sent by the applicant. These were already in evidence before the Court (CB 132 – CB 134 – see further below).

5. The applicant said he had nothing further to give to the Court.  Subsequently, the Minister’s lawyer advised that the Minister’s solicitors had received an affidavit from the applicant in 2017. This document had not been filed with the Court.

6. The Minister produced a copy of the document on the applicant’s behalf.  The applicant confirmed that he wanted the Court to have regard to it.  The Minister objected to the affidavit being read into evidence.

7. The affidavit was undated, there was no signature by any witness to what purported to be the applicant’s signature, and the interpreters jurat appeared to have been signed by the applicant himself.

8. In its terms, the affidavit was identical to what was set out in the affidavit which accompanied the application to the Court. This was already in evidence.

9. However, annexed to the affidavit form were four handwritten paragraphs, which sought to take issue with what the applicant subsequently confirmed were three paragraphs of the Tribunal’s decision record. I advised the applicant that it was not appropriate for the document to be read into evidence, but that I would have regard to it as being in the nature of submissions.

10. For the remainder, the applicant made lengthy submissions about why he wanted to remain in Australia. In essence, and as he ultimately confirmed, these were that he wanted a protection visa so that he could stay in Australia, where he could safely proceed to “change the face of Islam”.

Consideration

1. Some context is necessary to properly understand the applicant’s submissions before the Court.

2. The applicant had first travelled to Australia as a transit passenger (see item 69 at CB 25) on 24 June 1995, he departed the same day, and then travelled on transit for a second time on 6 February 1996 and departed the next day on 7 February 1996 (see at CB 77.9). He travelled to Australia for a third time and arrived on 8 June 1997. He has remained in Australia since that time, apparently for the overwhelming part without authority (CB 77).

3. He applied for a protection visa on 11 March 2015 (CB 77.9). In essence, his claims were that he was interested in music, and came to Australia to investigate and seek opportunities to work. If he were to return to Indonesia, he would have no work and no money. He would remain unemployed and homeless (CB 34 and CB 36). The applicant asserted in his protection visa application: “I have never been persecuted in Indonesia” (item 94 at CB 35).

4. The delegate found that the applicant’s claims: “… are not within the scope of the Refugees Convention or Complementary Protection” (CB 84.4).

5. The Tribunal found at the hearing before it that the applicant: “…introduced an entirely different set of claims which the Tribunal had to struggle to understand because of the disjointed, erratic and rambling delivery of his claims” ([22] at CB 139).

6. The Tribunal set out its: “…best attempt to summarise the statements made by the applicant at hearing” ([23] at CB 139). These are set out at [24] (CB 139).

7. The Tribunal’s summary reveals that the applicant’s submissions before the Court mirrored what he had put to the Tribunal. That is, his ancestral Hinduism, failures by Muslims to understand the true history and nature of Islam, and the misrepresentation of Islam “in their own teachings”.

8. The Tribunal’s understanding of his claims, which the applicant confirmed, was (at [25], CB 139): 

   “25. Toward the end of the hearing the Tribunal again sought to clarify its understanding of his claims in regard to his religious and/or political opinions. The Tribunal stated that it understood him to essentially be saying that he believes his mission is to expose Islam's wrongdoings and its misrepresentation of history in their teachings and use of language. The applicant agreed that this is correct.”

1. The Tribunal relevantly found (at [36], CB 141):

   “36. In view of the above findings, and given the credibility issues his actions raise, the Tribunal is also not satisfied the applicant genuinely holds the views he expressed at the hearing. The Tribunal is of the opinion these views have been fabricated due to his desperation to remain in Australia and are not a true reflection of his political or religious views or intentions. Therefore the Tribunal is satisfied he will not voice such opinions on return to Indonesia.”

1. The Tribunal gave reasons for this finding ([26] – [35] at CB 139 – CB 141). The Tribunal’s central finding, and the findings that informed it, were all reasonably open to the Tribunal on what was before it. The Tribunal’s explanation was logical in the requisite sense, intelligible and probative of the evidence before it.

2. The applicant’s submissions before the Court, therefore, in the circumstances, did not rise above a request for impermissible merits review. As I sought to explain to the applicant, the Court is not able to intervene and substitute its own findings of fact for those of the Tribunal, and to grant him a protection visa.

3. As set out above, before the Court the applicant made reference to a number of “tweets” which he wanted to make sure were before the Court. Despite opportunity, the applicant made no submissions directed to the issue of whether these would reveal jurisdictional error on the part of the Tribunal.

4. In any event, the applicant had claimed before the Tribunal that he had posted various comments on twitter about his beliefs, or what he described before the Tribunal, and the Court, as his “mission”. When asked by the Tribunal when he had commenced this activity, the applicant is reported as having replied: “… it was about four weeks ago”. That is, in context, four weeks before the Tribunal hearing ([26] at CB 139).

5. I pause to note that there is no transcript of the Tribunal hearing in evidence before the Court. The Tribunal’s account of what occurred remains as the only unchallenged evidence of what was said at the Tribunal hearing. Nor, before the Court, did the applicant express disagreement with the Tribunal’s account.

6. The Tribunal questioned the applicant as to why he made no mention of his “mission” in his protection visa application, and, despite being in Australia for 19 years (at the time of the Tribunal hearing), he took no relevant action until four weeks before the hearing, and after having been refused a protection visa by the delegate. The applicant gave various explanations for this ([27] – [32] at CB 139 – CB 141).

7. The Tribunal accepted that the applicant had posted comments on twitter, but found (at [35], CB 141):

   “35. Notwithstanding the above, the Tribunal accepts the applicant has posted various comments on twitter as referred to above and has considered the implications of this for his return to Indonesia under the complementary protection provisions in the Act. However, on the information before it the Tribunal is satisfied the applicant's twitter profile, given he has only one follower, is such that it will not bring him to the attention of Islamists or the Indonesian authorities on return. Accordingly, the Tribunal is also satisfied there is not a real risk the applicant will suffer significant harm for this reason.”

1. In all, the Tribunal found (at [33], CB 141):

   “33. The Tribunal has considered the applicants evidence and responses but does not find his claims in respect of his twitter and email activity to be credible. The Tribunal finds it problematic the applicant newly introduced this claim at hearing and made no mention of his strident views about Islam in his application for a Protection visa despite acknowledging at hearing the serious problems which persons who hold differing views and speak out against Islam in Indonesia encounter. The Tribunal notes the applicant stated at hearing that he wanted to talk about the history of Islam in Indonesia at his earlier interview but did not know how to express those views. Despite the problems the Tribunal encountered understanding the applicant at times it did not find him reluctant to voice or express his views. In fact, the applicant was quite insistent and determined in the manner he presented his evidence at hearing. Overall, the Tribunal finds his evidence ill-explained and unconvincing and is not persuaded that his twitter and email activity only commenced in the weeks before the Tribunal hearing because he is new to the technology or due to his interest in recent reported news events in Indonesia. The Tribunal has placed significant weight on the fact the applicant has remained in Australia for nineteen years without regularising his status and is of the view he is highly motivated to find a way to remain in Australia.”

1. On the evidence, the Tribunal did take into account that the applicant had posted comments on twitter. Its subsequent conclusion, however, that this did not lead to a likelihood of serious or significant harm was reasonably open for the reasons it gave.

2. Given that the Tribunal considered the “tweets” and the fact of the applicant’s twitter activity, the reference to the tweets before the Court can only be said again to be really an attempt to request the Court to intervene, and to find that the twitter activity would lead to harm, and that the Court should grant him a protection visa. That is, the reference to the tweets before the Court can only be said again to be a request for impermissible merits review. No jurisdictional error in the Tribunal’s decision is revealed here.

3. The terms of the grounds of the application to the Court are set out above at [15]. They are demonstrably devoid of any relevant meaning. Before the Court, the applicant was unable to provide any coherent, let alone reasonable, explanation of the grounds. This is not a case where the Court can infer even at the most basic of impressionistic levels any remotely possible assertion of jurisdictional error in the Tribunal’s decision.

4. At best, given what the applicant otherwise submitted to the Court, these are, it must be said, a poor attempt at even seeking to challenge the factual findings made by the Tribunal. No jurisdictional error is asserted in the grounds in any manner capable of understanding their relevance to the Tribunal decision actually before the Court.

5. If the applicant is seeking to challenge the findings made by the Tribunal, then this, in the circumstances, is no more than a request for impermissible merits review. No jurisdictional error is indicated, let alone made out, by the grounds.

6. In any event, there is no jurisdictional error otherwise indicated when regard is had to the Tribunal’s decision.

7. The applicant was invited to a hearing pursuant to s.425 of the Act. The Tribunal acknowledged the difficulty in drawing a coherent account of his claims from the applicant. Legal error is not revealed simply because an applicant is unable, or unwilling, to set out his claims, and give his evidence, in a reasonably understandable fashion. This is so in circumstances where there is no evidence that the applicant otherwise lacked capacity to do so.

8. The Tribunal’s account of what occurred at the hearing is not challenged by any evidence from the applicant. As set out above, he was given the opportunity to provide such evidence before the Court. On the evidence, it was reasonably open for the Tribunal to find that the applicant had been afforded a reasonable, and meaningful, opportunity to give his evidence. The Tribunal gave reasons for its ultimate conclusion, probative of what was before it.

9. While the Tribunal told the applicant that it may have to disregard his conduct in Australia for the purposes of the review, it was clear that the Tribunal confined this to the consideration of the criterion at s.36(2)(a) of the Act. The Tribunal did take his claimed activities in Australia into account when considering the complementary protection criterion.

10. The applicant made a number of assertions in his affidavit which accompanied his protection visa application. They are as follows:

    “1. The Tribunal/AAT was not acting in good faith in making a [decision].
    2. The decision does not relate to the subject matter of the legislation.”

1. The first statement is a bare assertion that the Tribunal did not act in good faith. No particulars are provided. If this is some attempt to argue that the Tribunal did not bring an open mind to the proceedings, then see further below.

2. The second statement is a bare statement that the Tribunal’s decision does not relate to the subject matter of the legislation.

3. Before the Court the applicant, again, did not provide any satisfactory explanation for these assertions. Nonetheless, I did consider whether these could assist the applicant in revealing jurisdictional error in the Tribunal’s decision.

4. The complaint that the Tribunal did not act in good faith may be an attempt to assert bias on the part of the Tribunal. This is a serious charge to make against an administrative decision maker, given that unlike other assertions of legal error, bias is an attack on the very integrity of the decision maker.

5. It is well established that such claims should not be made lightly. Such an allegation must be distinctly made and clearly proven (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507). Nor can bias be made out simply with reference to the decision record in the absence of evidence (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 75 ALJR 982 (“Ex parte H”), Minister for Immigration Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507, SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 at [43]-[44], Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102).

6. In the circumstances, given that the Tribunal complied with the relevant statutory requirements in that it gave the applicant a meaningful opportunity to explain his case, its decision was reasoned, and contained findings reasonably open to it on the evidence, no indication of bias is evident.

7. Nor is there anything to indicate that the fair-minded, well-informed lay observer might reasonably apprehend that the Tribunal might not have brought an open mind to the proceeding (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at 434 – 435, and [27] – [32]).

8. The second assertion in the affidavit can only be described in the circumstances as meaningless. There is nothing to indicate the Tribunal acted other than in accordance with the relevant statutory requirements.

9. The applicant’s written submissions before the Court also do not indicate jurisdictional error on the part of the Tribunal. The submissions directed attention to three paragraphs of the Tribunal’s decision record.

10. First, [6]. The applicant’s submissions (attached to an affidavit handed up by the applicant in Court on 1 November 2019) stated:

    “No. 6. In the case of a person without nationality, they are a refugee. If they are outside the country of theyr [sic] former habitual residence.

No. 6. Year 2008 Y [sic] was going to renew my passport so Y [sic] visited the Consulate of Indonesia and than [sic] they ask me to hand over the old passport. They told me to wait for week to process it. A week latter [sic], Y [sic] went back to the Consulate and as they sent my passport back to central government, the [sic] told me that Y’m [sic] not an Indonesian citizen anymore because Y [sic] have been in Australia for very long time. This is when Y [sic] started asking to my self that how can Y [sic] have a nationality and identity.”

[Errors in the Original.]

1. It is to be noted that contrary to what the applicant submits now, in his protection visa application he asserted that the Consulate told him this in 2010, not 2008 (see at item 20, CB 16).

2. At [6], the Tribunal stated (at CB 137):

   “6. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).”

1. The applicant’s contention now appears to be that he is stateless, and the Tribunal was in error in finding that he was a citizen of Indonesia. The basis for this is that when he sought to renew his Indonesian passport, he was told by the Indonesian Consulate in 2008, or 2010, that he was not an Indonesian citizen, because he had been in Australia for a long time (item 20 at CB 16).

2. The applicant’s submission as to what he claims he was told by the Indonesian Consulate is not before the Court in any evidentiary context. Nor is there any other evidence before the Court as to what the applicant was told by the Indonesian Consulate in 2008, or in 2010.

3. When the applicant applied for the protection visa in March 2015, he declared at that time, that is, well after 2008, or 2010, that he was an Indonesian citizen (item 19 at CB 16).

4. When he applied for review to the Tribunal on 14 August 2015 he declared that his nationality was Indonesian (CB 86.7).

5. There is no evidence before the Court now to support the proposition that the applicant was stateless at the time his matter was under consideration by the Tribunal, or that he made any such claim to the Tribunal.

6. At best, his claim was that he was not in possession of his Indonesian passport (see [21] at CB 139). In this light, the Tribunal had regard to various other documents:

   “21. The applicant claims that he is no longer in possession of his passport. Various documents contained on the Department's file, including copies of an Indonesian Certificate of Proficiency, an Indonesian Seamen's Book and an Indonesian Birth Certificate verify the applicant's claimed identity and nationality. In the absence of any information to the contrary the Tribunal accepts, for the purpose of this review, that the applicant is a national of Indonesia and has assessed his claims against Indonesia.”

1. This is not a case where the applicant claimed before the Tribunal, and for that matter, the delegate, to be stateless. To the contrary, he asserted that he was an Indonesian national. There was no dispute about this before the Tribunal, such as to now require consideration of what was found by the Full Court in FER17 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCAFC 106.

2. The applicant’s claims to fear harm were all directed to Indonesia. His assertions before the delegate and the Tribunal, that he was an Indonesian citizen, were accepted by the Tribunal even though the applicant did not provide a passport to support this assertion (see [21] at CB 139). In the circumstances the Tribunal was correct to consider his claims as against Indonesia as the “receiving country”. (See the definition of “receiving country” at s.5 of the Act and its relevance to s.5J of the Act).

3. In short, there was no need for the Tribunal to have regard to the laws of Indonesia to determine the relevant “receiving country” because there was no relevant dispute about this before the Tribunal. The Tribunal simply accepted the applicant’s claim in this regard, and gave reasons probative of the evidence before it for doing so.

4. Second, [35]. The applicant submits:

   “No. 35. Y [sic] was preaching about freedom of speech and expression in Indonesia. I have spoken about it over th [sic] radios trough [sic] out Java and Bali.
   Everyone was scare to discuss the topic. Some were quite anggry [sic] about it. And if I spread my knowledge of concerns about Islame [sic] in Indonesia, everyone there will threaten and shout to me about beheading me or putting me in the jail.”

[Errors in the Original.]

1. The contention here appears to be that he had spoken on the radio in Java and Bali about his “mission”. There was an angry reaction to what he said. If he were to return to Indonesia and express his concerns he would suffer harm. Paragraph [35] of the Tribunal’s decision is set out at [41] above in this judgment. However, given the terms of the applicant’s submission, his complaint appears to be directed to [28] of the Tribunal’s decision (at CB 140):

   “28. The Tribunal questioned why he has taken so long to embark on this mission and asked him how he is now going about the task. He said that he has been active on twitter and is in contact with Indonesian radio and television stations via twitter. When questioned further he said that he has only composed twitter posts and sent an email to a Muslim leader in Java, Mh. Ainun Najib, who is open and prepared to listen to people but he has not responded. Further, he said he is spending his time writing down his version of historical events in order to be able to convey the true history to people in Indonesia.”

1. The Tribunal’s account of what relevantly occurred at the hearing was that the applicant said he had: “…been active on twitter and is in contact with Indonesian radio and television stations via twitter” (at [28], CB 140).

2. Given the applicant’s other evidence to the Tribunal, this claimed activity must have occurred within four weeks prior to his attendance at the Tribunal hearing (see [26] at CB 139).

3. There is no evidence to suggest what is inferred in the submissions to the Court that the applicant spoke on Indonesian radio. The evidence before the Court is that the reference to Indonesian radio, and for that matter television stations, was part of his “twitter” activity.

4. As set out above, there is no apparent error in the Tribunal’s analysis and findings in this regard. The applicant now, again, seeks impermissible merits review.

5. Third, [37]. The applicant submits:

   “No. 37. I was letting them know about the definition of “Qour’an” [sic] Q = Cute, Our, An = And” [sic]. This signifies the fact that 9/11 terrorist believe in destruction of society as they see that the Arabs do not have a future.
   “Bible” derives “bye to be less”. This means that we weren’t willing to live in a struggle.
   This is why the Christians and the West live in much better living standards.”

[Errors in the Original.]

1. At [37] the Tribunal stated (at CB 141 – CB 142):

   “37. The Tribunal is prepared to accept the applicant may have voiced negative opinions about the September 11 attackers and the motivation for the attacks to persons in Australia but there is no evidence before the Tribunal to support that this was anything other than verbal remarks or that there is a real chance or real risk that members of the Indonesian extremist Muslim community or the Indonesian authorities would be aware of this. Also, the Tribunal is not persuaded on the evidence before it that his doing so is an indication that he is a person motivated to publicly challenge Islamic beliefs or the rise of Islamic fundamentalism in Indonesia as claimed.”

1. The applicant’s submission is that, in context, over the radio, he had spoken about the comparison between the Islamic Qur’an and the Christian Bible.

2. The difficulty for the applicant now is that there is no evidence before the Court that he had ever made this claim before the Tribunal. Further, and as set out above, his own evidence to the Tribunal about his communication with radio stations in Indonesia was by twitter, and one email to a Muslim leader. The applicant seeks, again, impermissible merits review.

Conclusion

1. There is no jurisdictional error apparent in the Tribunal’s decision record. It is appropriate to dismiss the application to the Court. I will make that order.

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  27 November 2019