Erwanto v Minister for Immigration and Multicultural Affairs

[2000] FCA 1665

FEDERAL COURT OF AUSTRALIA

Erwanto v Minister for Immigration & Multicultural Affairs [2000] FCA 1665

ARIS ERWANTO v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 995 OF 2000

EMMETT J
9 NOVEMBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 995 OF 2000

BETWEEN:	ARIS ERWANTO APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	9 NOVEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 995 OF 2000

BETWEEN:	ARIS ERWANTO APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	9 NOVEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of Indonesia.  He arrived in Australia on 23 August 1998, on a visitor visa.  On 18 September 1998, he lodged an application for a protection visa.  On 7 October 1998 a delegate of the respondent, the Minister for Immigration and Multicultural Affairs (“the Minister”), refused to grant a protection visa.  Accordingly, on 26 October 1998, the applicant applied for review of the delegate’s decision by the Refugee Review Tribunal (“the Tribunal”).  On 24 July 2000, the Tribunal affirmed the decision of the delegate not to grant a protection visa.  By an application filed in this Court on 12 September 2000 the applicant seeks review of the decision of the Tribunal.

2. When the matter first came before me on 27 October 2000 the applicant appeared in person.  On that occasion I gave directions for the applicant to file and serve any amended application intended to be relied on by 3 November 2000, and fixed the matter for hearing today at 10.15 am.  When the matter was called on for hearing there was no appearance by the applicant.  The Minister seeks dismissal of the application.

3. The grounds specified in the application of this Court are as follows:

   “The Refugee Review Tribunal has failed to recognise that, ‘although the applicant avoided harm after early May 1998 by relocating to another part of Indonesia’… such relocation was carried out because of his fear of persecution or harm from the local Indonesian mobs who looted his shop.  RRT has given no reason why such relocation should not be regarded as persecution.  The applicant actually had this point put forward by his migration agent at the video-conference hearing of RRT.  RRT has failed to give any reason that why the May riots the applicant encountered is not racial.  RRT treats it as something individual, a conflict of person-to-person nature.  In fact, this is a conflict between two races, local Indonesians (natives) and Chinese migrants and their descendants.”

4. The grounds set out in the application do not appear to raise any ground referred to in section 476(1) of the Migration Act 1958 (Cth).

5. I have considered the reasons of the Tribunal for reaching its decision of 24 July 2000.  The applicant is a Chinese Christian from Jakarta Barat.  He claimed that on 4 May 1998 a group of Indonesians who robbed a shop that adjoined his family’s business broke a door and window of their own premises and stole some goods.  He claims that his sister was raped by some of the intruders.  He asserted that, when he discovered what had happened to his sister, he cut one of the attackers with a knife.  He said that he was assaulted by some of the attackers before they took off.

6. The applicant claimed that he ran away to Bali directly after the attack to escape further trouble.  Later he said that he spent some time staying with friends in Jakarta and he went to Bali after he obtained his visa to enter Australia.  The Tribunal observed that the applicant’s claims of harm in early May 1998 were not at a time when rioting, in which many ethnic Chinese people were targeted, took place in Indonesia, including Jakarta.  However, the Tribunal did not attach any weight to that minor discrepancy.  The Tribunal did note that the applicant’s evidence that out of fear he ran away to Bali immediately after the riots was inconsistent with other evidence that he gave.

7. When the Tribunal pointed out the much greater lapse of time between the riots and the date of his departure from Indonesia, the applicant said that he stayed in Jakarta until he obtained his visa to come to Australia.  That visa was granted some three months after the riots.  The applicant was unable to indicate to the Tribunal what had happened concerning the attack on his sister.  The Tribunal considered it implausible that more than two years after the alleged attack on his sister, and after the family had employed a lawyer to assist them to seek redress, the applicant would be utterly ignorant as to what had since transpired.

8. The Tribunal considered, after weighing all the evidence, that the applicant had heavily embellished any harm that befell him or any other members of his family in May 1998.  The Tribunal was not satisfied on the evidence that the applicant's sister had been attacked, but in any event considered that any such harm did not indicate a real chance of persecution of the applicant, now or in the foreseeable future, for any Convention reason.  The Tribunal found that there was no real chance of persecution of the applicant.  Additionally, any vindictive attack on him for having taken a knife to someone who allegedly attacked his sister was not done by reason of his race or membership of a particular social group, or for any other Convention reason.  Any such violence, the Tribunal considered, would be personally directed against the applicant, rather than arising from any Convention ground.

9. The Tribunal considered, after assessing all the available information, and taking into account the lapse of time since serious and sustained rioting in Jakarta in the first half of 1998, the prospect of the applicant facing persecution by reason of any Convention ground is remote.  Accordingly, the Tribunal concluded that Australia has no obligation in respect of the applicant. 

10. I consider that the application should be dismissed, with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             16 November 2000

Counsel for the Respondent:	Mr R Lancaster
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	9 November 2000
Date of Judgment:	9 November 2000