CBE16 v Minister for Immigration

[2018] FCCA 1925

FEDERAL CIRCUIT COURT OF AUSTRALIA

CBE16 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1925

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – whether it was open to the Tribunal to rely on country information that was one year old, in circumstances where there was no significant change identified in that period.

Cases cited:

AUV15 v Minister for Immigration and Border Protection (2018) FCA 812
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; (2013) 136 ALD 547; [2013] FCAFC 114

First Applicant: CBE16

Second Applicant CBF16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 1620 of 2016

Judgment of: Judge Riley

Hearing date: 19 June 2018

Date of last submission: 19 June 2018

Delivered at: Melbourne

Delivered on: 19 June 2018

REPRESENTATION

Advocate for the first applicant: In person

Advocate for the second applicant: In person

Solicitors for the applicants: None

Counsel for the first respondent: Christopher McDermott

Counsel for the second respondent: No appearance

Solicitors for the respondents: Clayton Utz Lawyers

ORDERS

1. The application filed on 28 July 2016 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1620 of 2016

CBE16

First Applicant

CBF16
Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from the Transcript)[1]

Introduction

[1]     Reasons for judgment were given orally on 19 June 2018. The applicants filed a notice of appeal on 10 July 2018. The registry advised chambers on 11 July 2018 that the applicants had filed a notice of appeal. Chambers ordered a transcript of the reasons for judgment on 11 July 2018. Auscript provided the transcript of the reasons for judgment on 11 July 2018. The reasons for judgment were settled and sent to the applicant and the Minister by email and post on 13 July 2018.

1. This is an application for review of a decision of the Administrative Appeals Tribunal.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas.

2. The applicants are a married couple.  They are Chinese Christian citizens of Indonesia.  They claim to fear harm on the basis of their Chinese Christian profile, particularly in the context of riots in Indonesia in 1998 when 300,000 ethnic Chinese were killed.  The applicants claim that there continue to be difficulties faced by ethnic Chinese in a majority Muslim country.

3. The Tribunal’s decision was dated 30 June 2016.  The Tribunal referred to a report dated 9 June 2015 from the Department of Foreign Affairs and Trade (“DFAT”).  That report said at paragraph 3.8 that:

   … Chinese Indonesians are at low risk of official discrimination, although memories of the 1998 crisis have resulted in continued anxiety amongst some members of the Chinese community.  Persistent historical bias against Chinese Indonesians may amount to occasional cases of prejudice resulting in a low level of societal discrimination. 

4. The Tribunal noted that the first applicant said that a claim that someone had tried to rape her had been included in the application in error.  She said that she had experienced low level sexual harassment. The Tribunal considered that such harassment did not amount to serious or significant harm. 

5. The Tribunal noted that Christians make up about 10% of the Indonesian population. The Tribunal noted that DFAT had assessed that:

   Christians in Indonesia are generally at low risk of official discrimination and violence, and are generally able to practice their faith without interference owing to their officially recognised status. 

6. The Tribunal noted, however, that the  DFAT report went on to state that:

   … DFAT observes that incidents of religious intolerance appear to be on the rise in Indonesia, and members of Christian minorities can face a higher risk of societal discrimination and violence in regions where hard-line Muslim organisations are influential.  DFAT assesses such incidents occur relatively infrequently in Indonesia. (footnotes omitted)

7. The Tribunal noted that the first applicant had not claimed to have suffered any problems as a Christian in the past.  The Tribunal acknowledged that the first applicant faced some risk in relation to her being a Christian.  However, the Tribunal considered that the risk of the first applicant suffering any harm as a Christian in Indonesia was remote. 

8. The Tribunal considered the issue of sexual violence against the first applicant.  However, the Tribunal noted that the applicant only indicated that she had been the recipient of lewd comments and considered that this did not amount to serious harm. 

9. The Tribunal considered a motorbike accident that the first applicant was involved in.  However, the Tribunal considered that this was simply an attempted robbery and was not based on any Convention reason. 

10. In relation to the second applicant, the Tribunal accepted that he was a Christian of the Protestant faith.  The Tribunal accepted that an incident occurred when the second applicant was a child worshipping in a church when people objected to the noise that the church was making.  The Tribunal noted that the second applicant did not report any further problems of that nature, and considered that there was not a real chance of serious harm occurring for that type of reason in the future. 

11. The Tribunal rejected the second applicant’s claims as a Christian for essentially the same reasons as it had rejected the first applicant’s claims. 

12. The Tribunal the second applicant’s claim that he was afraid of going to church because of terrorist bombings.  However, the Tribunal did not accept that there was a real risk of the second applicant facing any difficulties for that reason, notwithstanding the growing religious intolerance in Indonesia. 

13. The Tribunal accepted the second applicant’s evidence that racist remarks had been made against him as a Chinese Indonesian.  The Tribunal did not accept that this amounted to serious harm.

14. The Tribunal considered the complementary protection criteria.  However, the Tribunal did not accept that the applicants faced a real risk of significant harm upon return to Indonesia. 

15. The application to this court appears to have been prepared without the benefit of legal assistance.  It does not set out grounds of review as such.  Rather, it sets out some legislation and extracts of country information that were not provided to the Tribunal.

16. In oral submissions to the court, the applicants explained that their concern about the Tribunal’s decision was that it relied on a DFAT report dated 9 June 2015, although the decision was dated 30 June 2016.  The applicants said that the country information the Tribunal relied upon was out of date.  The Tribunal noted in paragraph 17 of its reasons for decision that the applicants had provided to it articles and blogs about attacks against Christians in Indonesia.  The Tribunal evidently had regard to that information but preferred the DFAT report. 

17. In general, it is a matter for the Tribunal to decide what country information it wishes to rely upon and what weight to give it.  In this regard, O’Callaghan J in the Federal Court said in AUV15 v Minister for Immigration and Border Protection (2018) FCA 812 at paragraph 27 the following:

    (1)As a general proposition, a tribunal does not fall into error when it makes a choice between competing information. The choice of, and weight to be given to, such information is a matter for the tribunal: Aporo v Minister for Immigration & Citizenship (2009) 113 ALD 46; [2009] FCAFC 123 at [45]; VWFW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 29 at [63] (per Lander J); MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154 at [19].

    (2)In order to complete its jurisdictional task, a Tribunal is not required expressly to record and comment upon each particular piece of information or material before it, and is “not obliged to set out every detail of the reasoning process which [it] eventually employed for the [applicant’s] consideration”: Re Ruddock and Anor; Ex parte S154/2002 (2003) 201 ALR 437; [2003] HCA 60 (per Gummow and Heydon JJ at [54]).

    (3)A failure to have regard to relevant material which is so fundamental that it goes to jurisdiction may in some circumstances constitute jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow and Hayne JJ at [82]; WAFP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 319.

    (4)The question of the accuracy of the country information is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of country information, it would be engaging in merits review. The Court does not have power to do that: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [13].

    (5)Both the choice and the assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal: NAHI v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]; BNV15 v Minister for Immigration and Border Protection [2017] FCA 1048 (McKerracher J) (at [31]-[32]);

    (6) The Tribunal was not obliged to comment on every item of material before it, to the extent of saying why it rejected a particular item, or attributed less weight to it than to another item: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [14]); MZYJJ v Minster for Immigration and Citizenship [2011] FCA 957 (Tracey J) at [22].

18. The present case is readily distinguishable from the decision of the Full Court of the Federal Court in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; (2013) 136 ALD 547; [2013] FCAFC 114. In that case, the Tribunal failed to appreciate the way the claims were put, and there was a very significant difference in the country information the Tribunal relied upon and the country information dealing with the prevailing circumstances at the time of the Tribunal’s decision.

19. In the present case, some of the material provided by the applicants was older than the DFAT material that the Tribunal relied upon. Other articles provided by the applicants concerned rapes of women, which the first applicant did not ultimately claim to have suffered. One article concerned a church being burned down in Aceh province, which is not where the applicants were from. The applicants did not point to any material difference between the information that the Tribunal relied upon and the situation in Indonesia at the time of the Tribunal’s decision.

20. The Tribunal accepted that there was a level of risk for Christians and Chinese in Indonesia, and accepted, to some extent, that those risks were growing.  However, for the reasons which it gave, the Tribunal did not accept that those risks amounted to a real risk of serious and significant harm for the applicants.  It seems to me that the Tribunal’s reliance on the DFAT reports was open to it in this case.

21. I am not persuaded that the Tribunal made an error of the type alleged, nor am I satisfied that the Tribunal made any other error of a jurisdictional nature in this matter.     

22. Consequently, the application must be dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:  13 July 2018