CRG20 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 187
Federal Circuit and Family Court of Australia
(DIVISION 2)
CRG20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 187
File number(s): MLG 1994 of 2020 Judgment of: JUDGE EGAN Date of judgment: 13 March 2023 Catchwords: MIGRATION – Where applicant’s grounds of review were so un-particularised and general as to be meaningless – where it is not the responsibility of the Court to act as an advisor to an applicant – where applicant otherwise sought an impermissible merits review – no jurisdictional error established – application dismissed. Cases cited: CCA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 179
CED15 v Minister for Immigration and Border Protection [2018] FCA 451
CNN15 v Minister for Immigration and Border Protection [2017] FCA 579
DUN16 v Minister for Immigration & Anor and DUO16 v Minister for Immigration & Anor [2019] FCCA 2951
Division: Division 2 General Federal Law Number of paragraphs: 19 Date of last submission/s: 9 March 2023 Date of hearing: 9 March 2023 Place: Brisbane The Applicant: Self-Represented Litigant Solicitor for the First Respondent: Mills Oakley: Ms Bosnjak The Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1994 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CRG20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE EGAN
DATE OF ORDER:
13 March 2023
THE COURT ORDERS THAT:
1.The Application for Review filed on 11 June 2020 be dismissed.
2.The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $6,871.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Egan
Introduction
The applicant is a citizen of the Republic of Indonesia who arrived in Australia by aeroplane on a Visitor Visa on 12 June 2015. The applicant had travelled from Indonesia to Australia on 11 June 2015.
The applicant applied for a Protection Visa on 5 January 2016. At paragraph 80 of Part C of the Visa Application Form, the applicant recorded that between May 2011 and June 2015, the applicant had respectively either worked, holidayed, transited or conducted business respectively in South Korea, Indonesia, Singapore, South Korea, China, Indonesia, South Korea, Indonesia, China, the United Kingdom and between 8 May 2015 and 11 June 2015 in Indonesia before his travel to Australia. In total, the applicant recorded that he had spent approximately 120 days (about 17 weeks) in Indonesia over a 4 year period before travelling to Australia.
At [5] – [9] inclusive of its reasons, the Administrative Appeals Tribunal (the Tribunal) set out the relevant criteria which needed to be satisfied in order for a person to be considered a refugee who was owed protection obligations by Australia, or a person who was owed complimentary protection obligations.
At [12] of its reasons, the Tribunal set out the applicant’s claims for protection as contained in answers to questions numbered 88-96 inclusive in Part C of the Application for Visa Form, which were as follows:
“Protection claims
[12] The claims from the applicant were contained in his 866 form and are stated below as they were written in the 866 form:
Q88: I am seeking protection in Australia, so that I do not have to return to:
A: Indonesia
Q89: Why did you leave that country(s)?
AI leave my country because I felt mental and psychological insecurity within my own family that caused by inharmonious marriage relationship of my parent, often harsh and violent verbal fights, authoritative coercion and intervention of my life and slander from my larger family due to past bad reputation of my father’s life and his marriage relationship with my mother.
So the reason I came to Australia was to find inner peace, independent, liberty and exclusion apart from my family.
Q90: What do you think will happen to you if you return to that country(s)?
A I will facing family conflict, mental and psychological stress and intervention from my family.
Mental trauma which can lead to depression.
I am feeling much better here in Australia and more secure. It’s hard for me to live happily in Indonesia with all the issue.
Q91: Did you experience harm in that country(s)?
A Yes. Mentally and psychologically harm which lead me to depression. I lost a lot of jobs in Indonesia because of this matter.
I could not focus with my work and life in there. I have been running away to other places to start my new life, but every time I went back to Indonesia, same thing happened again.
Q92: Did you seek help within the country(s) after the harm?
A No. Because of the culture issue in Indonesia, family issue always taken lightly in society. I don’t know where to seek for help. I do have some friend to talk regarding my personal life but it does not really help. I also try to live in other place in Indonesia, but because of the same environment I still feel trauma.
Q93: Did you move, or try to move, to another part of that country(s) to seek safety?
A Yes. I stayed in Bandung City for about 1 month in my friend owned laundry business workshop to see and decide if I can join the business franchise while trying to live separately from my family. But then I could not find passion, same stress environment and could not focus, so finally I applied visa for Australia.
Q94: Do you think you will be harmed or mistreated if you return to that country(s)?
A Yes. Yes, because I will go back to the same environment which put me in the same mental trauma and I don’t think my family will change or treat me better.
Q95: Do you think the authorities of that country(s) can and will protect you if you go back?
A No. Because of the culture, I cannot find any authorities that will help and protect me from my family as mental and phsychological issues as not being enforce in my country.
Q96: Do you think you will be able to relocate within that country(s)?
A No. For me going overseas is the best destination where I could find peace, release and relieve. I could live in totally different environment and culture as a stranger. Having retreat from my distress, family intervention and bondage. Finding inner peace to make solution of every situation, to formulate priority and life.”
As to the question of the delay in the applicant making application for a protection visa after his arrival in Australia, at [15] of its reasons the Tribunal found as follows:
“[15] When asked how long he was in Australia before he applied for protection, the applicant indicated that he was in Australia from May 2015 to January 2016 before he applied for protection. When asked if there was a reason for the delay in applying for protection, the applicant indicated that he did not have anyone to advise him.”
At [18] – [26] inclusive, whilst recording the applicant’s responses to matters put to him during the course of the hearing before the Tribunal, the Tribunal found as follows:
[18]In respect to his written claims in the form 866, the applicant indicated he completed the application himself.
[19]When asked if he could recall what claims he made in 2016, he indicated that he said he experienced depression and mental health issues, and that he felt uncomfortable living in Indonesia, especially with his parents. He indicated that he left Indonesia because of his mental health situation. He also indicated his parents did not have a harmonious marriage.
[20]When asked what he thought would happen to him if he went back to Indonesia, the applicant said he would have mental stress.
[21]The Tribunal put to the applicant that Indonesia was a big country and asked him why he thought he would go back and live with his parents noting he was a mature man. In response, the applicant said he would not have to live with his parents. He indicated he thought that living in a foreign country would give him liberty and independence.
[22]When the Tribunal asked the applicant if he experienced harm in Indonesia, he said “yes” and said he experienced psychological harm. When asked if he had any reports from any mental health professionals about his claim that he experienced psychological harm, he said “no.” When asked if he was saying that he did not have access to mental health professionals in Indonesia, the applicant said there might be psychologists there but he does not know. The applicant then said that Indonesian people were “introverted.” When asked what he meant by that, he indicated that Indonesian people generally do not use psychologists and worked out their problems themselves.
[23]When the Tribunal put to the applicant that he had indicated that no person in Indonesia had ever hurt him, he agreed that no person in Indonesia had ever hurt him. He then said that his sister and family saw he was irritated and felt uncomfortable with the situation in Indonesia when he was there. The applicant indicated that he never sought any help in Indonesia for his situation.
[24]When the Tribunal asked the applicant whether he had accessed mental health support in Australia, he said “no.” When asked why not, the applicant said he was an introvert and that because he is religious he preferred to rely on bible scripture and spiritual support from the church to help him.
[25]When asked if he thought he would be harmed or mistreated if he went back to Indonesia, he said “yes.” The applicant indicated that if he went back to Indonesia, he would be caused psychological stress and tension from his family.
[26]When asked who would harm him if he went back to Indonesia, he said that he would be stressed. When the Tribunal put to the applicant that he had indicated that no person would harm him if he went back to Indonesia, he responded that only psychologically he would feel harmed.
At [27] of its reasons, the applicant was recorded as having accepted the DFAT country information report dated 25 January 2019 wherein it was recorded that mental health services were available for access by the applicant should he return to Indonesia. In response to the suggestion put to the applicant that the DFAT report concluded that he would be at low risk of harm should he return to Indonesia, the applicant said that there was no guarantee of stability if he returned.
At [35] – [36] of its reasons, when seeking further illumination from the applicant as to what other claims the applicant might have, the Tribunal noted as follows:
“[35]When the Tribunal asked the applicant if there were any further claims the Tribunal had not considered that he thought the Tribunal needed to consider, the applicant indicated that he did not have any further claims. He indicated that he has never been a burden to the Australian government, and he has never done anything to disadvantage Australia. He indicated that he has abided by the law and he has tried to be a good member of society.
[36]When the Tribunal put to the applicant that the Tribunal may find that based on the information before the Tribunal there may not be a real chance of serious harm or a real risk of significant harm to him if he returned to Indonesia in the foreseeable future, he said that he would feel psychologically harmed and depressed to return to a very uncomfortable situation for him. He also expressed his concerns about instability, religious fanatics, riots, persecution of the Chinese and Christian minority and the economic effects of COVID-19.”
Grounds of Review
In the Originating Application for Review filed on 11 June 2020 relied upon by the applicant at the hearing of this matter, the Grounds of Review were as follows:
“1. THE TRIBUNAL FILED TO CONSIDER MANY VITAL INTEGER OF MY CASE
2. THE TRIBUNAL DEPRIVED ME OF PROCEDUR FAIRNESS
3. THE TRIBUNAL MEMBER FAILED RELIED ON INCORRECT INFORMATION AND DECIDED MY CASE USING FACTS FORM SOME OTHER CASE;
4. THE TRIBUNAL MEMBER FAILED TO ASK ME QUESTIONS ABAOUT THE TYPES OF HARM RELEVENT IN MY CASE.
5. ACCORDING IN SECTION 44 OF THE ADMINISTRATIVE APPEAL TRIBUNAL ACT 1975 THERE IS A DESCRIPTION AND AUTHORIZING ME TO MAKE SUCH ACTION APPEAL TO FEDERAL CIRCUIT COURT.”
The grounds of review do not have the requisite particularity so as to enable the Court to properly adjudicate on the application. In CNN15 v Minister for Immigration and Border Protection [2017] FCA 579 at [20] – [22], Gilmour J said as follows:
“[20] This ground is un-particularised as to just what evidence it is alleged was not considered by the Tribunal or what relevant considerations the appellant alleges the Tribunal did not take into account, or as to what "wrong information" the Tribunal is alleged to have based its decision upon.
[21] This first ground of appeal is merely an un-particularised assertion of jurisdictional error. As was said in WZAVW v Minister for Immigration and Border Protection [2016] FCA760 at [35]:
(This ground is) an un-particularised assertion of jurisdictional error and is vague and meaningless. It does not specify what the nature of the jurisdictional error allegedly committed by the Court below is. Failure to particularise a ground of review is a sufficient basis for it to be dismissed: WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] and upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969.
[22] The first ground therefore fails.”
In CCA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 179 at [23] – [26], Farrell J said as follows:
“[23] The Court explained to the appellant that the Court cannot meaningfully engage with an appeal ground that makes a general complaint of error by the FCCA, without providing particulars of the ways in which he says that the FCCA Judge erred. The appellant did not provide any further particulars.
[24] The Minister filed written submissions. The Minister’s representative submitted that, where (as here) the appellant had been given the opportunity to provide particulars and make oral submissions, the Minister has no case to answer.
[25] In EJB17 v Minister for Immigration and Border Protection [2019] FCA 742 at [12], I said:
While the difficulty faced by a self-represented litigant cannot be minimised, this Court cannot meaningfully engage with the appellant’s ground of appeal where the ground makes a general and unparticularised complaint of error by the primary judge. As pointed out by Bromwich J in FLW17 v Minister for Immigration and Border Protection [2019] FCA 352 at [17], it is well-established and beyond doubt that an appeal, even by way of a rehearing, requires the identification of error, and is not merely a second trial hearing. It is also not for the Court to perform the function of identification of error where the appellant has not. Where no identifiable error on the part of the primary judge has been alleged, let alone established, and none is otherwise apparent, the appeal must be dismissed with costs. See also SZTOG v Minister for Immigration and Border Protection [2018] FCA 112 at [17], [24]-[26], [29]-[30] and [32] per Flick J.
[26]Those remarks are equally applicable in this case. In this case, the appellant has not identified appellable error by the FCCA Judge nor is any apparent from the reasons that her Honour gave for dismissing the application for judicial review of the Tribunal’s decision.”
In DUN16 v Minister for Immigration & Anor and DUO16 v Minister for Immigration & Anor [2019] FCCA 2951, this Court discussed the matter as follows:
[4]Notwithstanding, with the greatest of respect, that this Court doubted whether it was a fulfilment of its judicial role, or the performance of a judicial function, for the court to enter upon the endeavour of attempting to elicit from the applicant particulars of the applicant’s case, and then, of necessity, recording such particulars in a coherent form and for the applicant’s benefit, the Court nevertheless attempted to do so, so as to enable the matter to proceed to a final hearing. The Court, in that regard, was concerned that it could be the subject of adverse later criticism, perhaps, for:
a)erroneously appreciating the import of anything said by an applicant in response to the Court’s request for particulars;
b)failing to so formulate, in writing, what was said by the applicant in a way most advantageous to such applicant;
c)not accurately recording some of, or what the Court might have considered an irrelevant part of, the particulars orally provided to the Court by the applicant.
[5] The Court was concerned that, in effect, it was being required to become the applicant’s advocate or adviser, at the risk of assuming all of the attendant responsibilities which that entailed. The Court was also concerned that the exercise would, in a practical sense, leave the Court open to having any subsequent decision it might make in the matter overturned on any number of grounds associated with the process of the Court:
a)advising the applicant as to the inadequacy of the particulars of their grounds for review;
b)asking the applicant to explain what her complaints were concerning the adverse decision she was seeking to review;
c) recording the answers of the applicant to the Court’s questions;
d)evaluating such of the applicant's answers for the purpose of identifying what were or were not legitimate grounds of review;
e)recording, in writing, what the Court considered were the applicant’s legitimate grounds for review.
[6] In the case of Hamod v New South Wales [2011] NSWCA 375 at [309] – [316] inclusive, Beazley JA (with whom Giles and Whealy JJA agreed) said as follows:
“[309] Courts have an overriding duty to ensure that a trial is fair: Dietrich v R [1992] HCA 57; 177 CLR 292. This entails ensuring that the trial is conducted fairly and in accordance with law: MacPherson v The Queen [1981] HCA 46; 147 CLR 512 per Gibbs CJ and Wilson J at [16] 525. The duty reposes in the individual judicial officer hearing a case. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented: R v Zorad (1990) 19 NSWLR 91 at 94-95. In MacPherson Mason J, at [31] 534, noted that:
"A trial in which a judge allows an accused to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as 'fair'."
[310] However, the court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. For this reason, the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just: Tomasevic v Travaglini [2007] VSC 337; 17 VR 100 at [95]; Barghouthi v Transfield Pty Ltd [2002] FCA 666; 122 FCR 19, 23; NAGA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 944, [11]; Nagy v Ryan [2003] SASC 37, [52]-[53].
[311] Insofar as the duty relates specifically to an unrepresented party, it has been said that a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case: Jae Kyung Lee v Bob Chae-Sang Cha per Basten JA at [48]. See also Abram v Bank of New Zealand (1996) ATPR 41-507, 43,341, 43,347; Microsoft Corporation v Ezy Loans Pty Ltd (2004) 63 IPR 54; Pezos v Police (2005) 94 SASR 154.
[312] Although the duty of a trial judge to assist an unrepresented litigant is cast in active terms, it does not extend to advising the accused as to how his or her rights should be exercised: R v Gidley (1984) 3 NSWLR 168. Rather, the judge has to put the unrepresented litigant in the position of being able to make an effective choice, a duty which applies notwithstanding the adversarial character of a criminal trial: McPherson per Mason J at 534. The duty is the same in a civil proceeding, with such modifications as are called for to take account of civil procedures. However, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant: Bhagwanani v Martin (1999) 204 LSJS 449; [1999] SASC 406 ; Clark v State of New South Wales (No 2) [ 2006] NSWSC 914.
[313] The touchstone at all times remains that of fairness. In Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unreported) Samuels JA, at 14, stated:
"But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent ... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant."
[314]Thus, a trial judge is entitled to reprimand an unrepresented litigant if the judge believes that the litigant is trifling with the court: see Galea v Galea (1990) 19 NSWLR 263 at 283 per Meagher JA; Michael v Western Australia [2007] WASCA 100 at [64] per Steytler P (McLure JA and Miller AJA agreeing); Jae Kyung Lee v Bob Chae-Sang Cha at [84] per Basten JA.
[315] There may be a fine tension in striking the balance between providing assistance to an unrepresented litigant and ensuring a fair trial for all parties. However, it is the task of the judge to strike that balance. In Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at 446 the Full Federal Court dealt with the tension between the duty of the trial judge to ensure a fair trial and the requirement of impartiality:
"A trial judge often faces something of a dilemma. While he or she may be bound to provide some advice and assistance to an unrepresented litigant, the authorities make it clear that the Judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation: Burwood Municipal Council v Harvey (1995) 86 LGERA 389 at 397 (NSW CA), per Kirby P. However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial: Panagopoulos v Southern Healthcare Network (unreported, Supreme Court, Vic, Smith J, 15 September 1997) at 6."
[316] The position can be stated no more clearly than reiterating that the judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness.”
[7] In DEZ16 v Minister for Immigration and Border Protection [2019] FCA 240, Flick J, sitting on appeal, was there dealing with a contention that a Federal Circuit Court judge had, in that matter, failed to ensure that the hearing was fair, and that the appellant (applicant) did not “suffer a disadvantage from exercising his or her right to be self-represented”. It was further contended that the primary judge “failed to take appropriate steps to ensure that an unrepresented litigant has sufficient information about the practice and procedure of the Court”. The contention was that it was a requirement imposed upon the primary judge to “explain in plain terms to unrepresented litigants that they must identify why the Tribunal’s decision was not made lawfully and by a fair process” and that it is “not enough to merely say that they must demonstrate jurisdictional error”.
[8] When considering the above contentions, Flick J at [37] noted the undesirability of a judge imposing himself upon the proceedings, as an advisor or advocate for an unrepresented party, when His Honour said:
“[37] Although each case must inevitably depend upon its own facts and circumstances, it is to be doubted that a primary Judge is required to explain to an unrepresented party “why the Tribunal’s decision was not made lawfully”. The task imposed upon a Judge at first instance is not to act as an advisor or advocate for the unrepresented party. That contention of the Appellant, expressed in such unqualified terms, is rejected.”
[9] For a judge to not only elicit information from an applicant orally for the purpose of particularising the applicant’s grounds for review, but to then necessarily have to formulate and record the judge’s assessment of what was said orally by the applicant, goes far beyond providing advice to the applicant as to matters of practice and procedure. It blurs the lines between the judge’s duty to remain impartial, and the judge’s duty to ensure a fair hearing. It is this Court’s view that it is not in the interests of justice for a judge to be so integrally involved in the formulation of one party’s case.”
(Footnotes omitted)
The Court finds that there is no relevant distinction between the relevant considerations to be taken into account where grounds of appeal lack particularity as opposed to grounds of review lacking particularity. In the present matter, the grounds of review were so general in character as to be meaningless.
The written submissions filed by the applicant largely complained about the decision made by the Tribunal, and sought an impermissible merits review. As to those submissions:
(a)In relation to the applicant’s submissions about his “Christian Faith Claims”, the Tribunal at [39] of its reasons relied upon the DFAT country information report for Indonesia dated 25 January 2019, which relevantly provided as follows:
[39]The relevant information from the DFAT Country Information Report for Indonesia dated 25 January 2019 in respect to Christians is as follows:
3.35 Christianity is Indonesia’s second-largest religion after Islam. Approximately 24 million Indonesians listed their religion as Christian in the 2010 census. Protestants make up approximately 7 per cent of the total population and Catholics approximately 3 per cent of the total population. Christian communities exist in every province and Christianity is the majority religion some of the eastern provinces including the Papua provinces and North Sulawesi. East Nusa Tenggara, especially the island of Flores, is majority Catholic. About a million Christians lived in Jakarta at the time of the last census. A large number of Protestant churches operate in Indonesia including mainstream Protestants (especially those related to Lutheran denominations) and evangelical and Pentecostal churches as well as nondenominational independent churches.
3.36 Christians are generally able to practise their faith freely throughout Indonesia. High-level inter-denominational and inter-faith dialogues, especially between Muslims and Christians and between Catholics and Protestants, occur regularly. Christians residing in some areas, particularly where hard-line Islamist groups are more influential (such as Aceh, and parts of East and West Java) have occasionally been prevented from worshipping, including through forced church closures and the disruption of church services, however this violence and discrimination appears to be localised.
3.37 A small number of recent terrorist attacks have targeted Christians, although most recent terrorism events have targeted state institutions, especially police. The May 2018 Surabaya suicide bombings affected Catholic, mainstream Protestant and Pentecostal communities. Several churchgoers and a priest were injured in a sword attack on a Catholic church in Yogyakarta in February 2018, in which the perpetrator hacked at statues of Jesus and Mary before being shot by police.
3.38 Christian communities have remained resilient in spite of recent violence and church attendance has not fallen as a result. Security at churches increased briefly after the May attacks and police provide extra protection at major festivals such as Christmas and Easter. Some Muslim groups also volunteer to assist or provide security at events and festivals.
3.39 Conversion to and from Christianity is common. Some bureaucratic difficulties can be encountered in registering a change in religion with the government, but this is not a significant barrier to conversion, which commonly occurs without difficulty. Some Pentecostal Christians are involved in door-to-door evangelical activities, which have been known to upset religious sensitivities. Preaching by foreign missionaries is unlawful, but the US State Department reports that many foreign missionaries preach without official sanction.
3.40 Christians do not generally experience discrimination in gaining access to health care, education or employment (emphasis by Tribunal).
3.41 DFAT assesses that Christians residing in areas where they are a majority do not face either official or societal discrimination (emphasis by Tribunal). Christians residing in areas where conservative Islam is prevalent face a low risk of societal discrimination in the form of impediments to worship, although this risk is unlikely to include violence (emphasis by Tribunal). DFAT assesses that Christians face a low risk of terrorism in spite of recent exceptional events (emphasis by Tribunal).
(b)In relation to the applicant’s submissions about the applicant’s concerns about instability, riots and radicals in Indonesia, the Tribunal at [38] of its reasons relied upon the DFAT country information report, which relevantly provided as follows:
[38]The relevant information from the DFAT Country Information Report for Indonesia dated 25 January 2019 in respect to ethnically Chinese Indonesians is as follows:
3.5 Successive waves of immigration to Indonesia from China over more than five centuries have resulted in an established ethnically Chinese Indonesian community throughout the country. The 2010 census recorded 2.8 million ethnic Chinese living in Indonesia, comprising 1.2 per cent of the population. This figure may understate the actual number, as some Indonesians of Chinese descent are reportedly reluctant to self-identify due to past tensions. Many Chinese Indonesians who trace their history in Indonesia for many generations may no longer identify as Chinese and many do not speak Chinese. About half of the ethnically Chinese population are Buddhist and about 42 per cent are Christian. Fewer than five per cent are Muslim, compared with over 87 per cent of Indonesians generally.
3.6 The Suharto-era New Order regime implemented a range of measures that discriminated against Chinese-Indonesians. The law prohibited Chinese language newspapers, schools and cultural expressions, and many Chinese Indonesians were pressured to take Indonesian names. Some ethnic Chinese had difficulty obtaining citizenship and Chinese Indonesians were required to carry a document proving their Indonesian citizenship. As noted in Recent History, in May 1998 during the Asian financial crisis, rioters targeted the ethnic Chinese community due to their perceived wealth. As many as 1,000 Chinese Indonesians died in incidents related to the riots, women were raped, and businesses were burned or looted.
3.7 Since the end of the New Order regime in 1998, successive governments have removed most official policy measures discriminating against ethnically Chinese Indonesians. Chinese New Year is celebrated as a national public holiday, Confucianism is an officially recognised religion, Chinese cultural performances and languages are accepted, and the Constitution no longer distinguishes between ethnic Chinese and ‘indigenous’ Indonesians, with barriers to citizenship removed. In 2014, then-President Yudhoyono issued a regulation changing the Indonesian word used to designate ‘of Chinese descent’ from one which was often associated with racial slurs. A number of Chinese Indonesians have held high office and work in a range of sectors, including the police, clergy and the business community.
3.8 Some anti-Chinese sentiment remains at a societal level. Although many Chinese Indonesians are not wealthy, most of the country’s richest and most prominent businesspeople are ethnically Chinese Indonesian, which is a source of resentment for some non-Chinese Indonesians.
3.9 In 2012, President Widodo faced strong criticism from conservative Islamist groups in his campaign for the Governorship of Jakarta for having a Chinese Indonesian and Christian running mate, Basuki Tjahaja Purnama, popularly known as ‘Ahok’, who later succeeded him. After succeeding Widodo as governor, some of Ahok’s policies were controversial and politically divisive, such as slum-clearing, which was perceived as anti-poor. Later, after he was accused of blasphemy in late 2016, a range of groups with complex agendas united to use Ahok’s ethnic and religious background as a means to mobilise large crowds of demonstrators (see Blasphemy and Defamation of Religion). Ahok was later convicted of blasphemy and imprisoned.
3.10 Anti-Chinese sentiment in Indonesia intersects with religious and economic issues. Islamic organisations blamed China for a supposed upsurge in communist sentiment, a politically sensitive subject (see also Recent History), in mid-2016. Increased Chinese investment in Indonesia has also caused local critics to express concerns about imported Chinese labour and Chinese control over national assets.
3.11 Small-scale local riots took place in a town in North Sumatra in 2016, following an allegation of blasphemy against a Chinese Indonesian woman (see Blasphemy and Defamation of Religion). While the riots were ostensibly anti-Buddhist, most Indonesian Buddhists are ethnically Chinese and local media described the riots as anti-Chinese and stated that some Chinese families had fled the region. A number of youths were arrested, prosecuted and imprisoned in the wake of the riots.
3.12 DFAT is aware of reports of Chinese Indonesians facing discrimination in relation to buying land in Yogyakarta. Yogyakarta is a special administrative region run as a sultanate, in which the sultan is also the governor. In March 2018, a regional court upheld a 1975 law that only allows ‘native Indonesians’, which has been construed to exclude ethnic Chinese, to own land in Yogyakarta.
3.13 With the notable exception of the 2016 riots, which may have been partly motivated by racial tensions, anti-Chinese violence has been low since events in 1998 (emphasis by Tribunal). Although memories of the crisis have caused continued anxiety amongst many members of the Chinese Indonesian community, exacerbated by events such as the Ahok blasphemy trial and the 2016 riots, DFAT assesses that Chinese Indonesians currently face a low risk of violence (emphasis by Tribunal). Persistent anti-Chinese sentiment may lead to low levels of societal discrimination.”
(c)
In relation to the applicant’s claims about “Indonesian Sociocultural and Geopolitics” being very vulnerable “ … from any stimulant and provocation from any group or party …” ; the applicant’s claims about mass demonstrations and social unrest due to religious intolerance; and the applicant’s claims about sexual abuse and religious coercion committed by Islamic hard-liners;
the Court accepts the submissions made on behalf of the first respondent that to the extent that the applicant sought to rely upon publications referred to in the written submissions, such publications were not before the Tribunal and therefore were of no relevance on review. Otherwise, the Court accepts that the claims were so general and un-particularised as to be meaningless.
The Tribunal carefully considered all of the applicant’s claims, both individually and cumulatively. At [43] – [48] of its reasons, the Tribunal set out its findings in relation to the claims made by the applicant as follows:
“[43]In respect to his mental health claims, the Tribunal accepts with great reservation that the applicant may have mental health issues. However, the Tribunal finds that while his mental health was a significant basis of the applicant’s claims, the applicant has never sought mental health treatment in Indonesia or Australia. The evidence supporting the applicant’s claims that he has mental health issues is not supported by any documentation because the applicant has never sought mental health treatment in Indonesia or Australia. Based on the evidence before it, the Tribunal finds that if the applicant does have mental health issues, those issues did not prevent him from international travel or living abroad or getting an education or getting employment in his life. The Tribunal finds that the severity of any potential mental health conditions the applicant may have is highly questionable. In any event, the Tribunal finds that based on country information the applicant would have access to mental health treatment in Indonesia should he return to Indonesia in the foreseeable future. The Tribunal finds that the applicant’s clams in respect to his mental health are not one or more of the reasons mentioned in s.5J(1)(a) of the Act and therefore, in respect to his mental health claims, the applicant is not a refugee as defined in s.5H of the Act. In respect to complementary protection, the Tribunal does not accept that the applicant would face a real risk of significant harm on the basis that he may have mental health issues because the country information is clear that mental health services are available in Indonesia.
[44]In respect to his apparent claims in respect to his Chinese status, the Tribunal accepts he is a Chinese Indonesian. However, the Tribunal accepts the country information that Chinese Indonesians currently face a low risk of violence. Accordingly, the Tribunal does not accept that the applicant would face a real chance of serious harm or a real risk of significant harm on the basis that he is a Chinese Indonesian should he return to Indonesia in the foreseeable future.
[45]In respect to his apparent claims in respect to his Christian faith, the Tribunal accepts he is a Christian. However, the Tribunal accepts the country information that Christians do not generally experience discrimination in gaining access to health care, education or employment. The Tribunal accepts the country information that Christians residing in areas where they are a majority do not face either official or societal discrimination. The Tribunal accepts the country information that Christians residing in areas where conservative Islam is prevalent face a low risk of societal discrimination in the form of impediments to worship, although this risk is unlikely to include violence. The Tribunal accepts the country information that Christians face a low risk of terrorism in spite of recent exceptional events. In applying the country information to the applicant’s status as a Christian, the Tribunal does not accept that the applicant would face a real chance of serious harm or a real risk of significant harm on the basis that he is a Christian should he return to Indonesia in the foreseeable future.
[46]In respect to his concerns about instability and riots and radicals in Indonesia, the Tribunal does not accept that there is sufficient information to support any reasonable finding that the applicant would face a real chance of serious harm or a real risk of significant harm on the basis of instability and riots and radicals in Indonesia should he return to Indonesia in the foreseeable future.
[47]In respect to his concerns about the adverse economic effects of COVID-19 on the Indonesian economy, the Tribunal accepts that as of 2019 there was positive economic news in Indonesia with a relatively high GDP growth rate and falling poverty. However, the Tribunal of course notes that COVID-19 is a present issue that is likely to have an adverse impact on Indonesia’s economic growth although it is premature to speculate on exactly how much of an impact it will have. However, the Tribunal finds that given the applicant’s demonstrated education and consistent employment history, the Tribunal does not accept that the applicant would face a real chance of serious harm such that there would be a denial of his capacity to earn a livelihood of any kind, or that would threaten his capacity to subsist. In addition, the Tribunal also finds that given the applicant’s demonstrated education and consistent employment history, the Tribunal does not accept there is a real risk of significant harm on the basis of any concern about his ability to find employment or support himself should he return to Indonesia in the foreseeable future.
[48]The Tribunal also finds that the applicant was unlawful for a period of about four months before he ultimately applied for protection about six months after he first arrived in Australia on 12 June 2015.”
The Tribunal appropriately noted that there was a substantial delay in time between the applicant’s arrival in Australia and the making of his protection visa application. The Tribunal did not err in having regard to such delay as a factor tending against the applicant’s claim that he feared serious harm should he be returned to Indonesia. [1]
[1]CED15 v Minister for Immigration and Border Protection [2018] FCA 451 at [21] – [24] per Thawley J
The application for review is dismissed due to the lack of particularity in the grounds of review.
Further, the applicant has otherwise failed to establish jurisdictional error on the part of the Tribunal.
The Grounds of Review are without merit and are dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 13 March 2023
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