Hauw v Minister for Immigration and Multicultural Affairs

[2001] FCA 1675

FEDERAL COURT OF AUSTRALIA

Hauw v Minister for Immigration and Multicultural Affairs [2001] FCA 1675

MIGRATION – protection visa – application for review of decision of Refugee Review Tribunal – mistreatment of ethnic Chinese in Indonesia – country information suggesting improvement – whether sufficiently contemporaneous

Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 mentioned
Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 mentioned
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 mentioned

BUN PIAUW HAUW AND ANOTHER v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NO V 3 0F 2001

HEEREY J
20 JULY 2001
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 3 OF 2001

BETWEEN:

BUN PIAUW HAUW
FIRST APPLICANT

SIENNY HALIM THE
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

HEEREY J

DATE OF ORDER:

20 JULY 2001

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The applicant pay the respondent’s costs to be taxed.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 3 OF 2001

BETWEEN:

BUN PIAUW HAUW
FIRST APPLICANT

SIENNY HALIM THE
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:	HEEREY J
DATE:	20 JULY 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicants apply for review under Pt 8 of the Migration Act 1958 (Cth) (the Act) of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister to refuse to grant them protection visas. It will be convenient to refer to the first-named applicant only, as the second applicant’s claims depend entirely on his.

2. The applicant is a citizen of Indonesia.  He claims fear of persecution on grounds of race as an ethnic Chinese in Indonesia.  The Tribunal largely accepted the account the applicant gave and in particular that on 13 May 1998 his shop in Jakarta was burnt to the ground in the course of anti‑Chinese riots.  The applicant was in Bali at the time.  The Tribunal referred to a considerable body of country information including information from the Department of Foreign Affairs and Trade on the mistreatment of Chinese in Indonesia.  Chinese form approximately five per cent of the population.  In particular, that country information deals with what appears to be an improved situation since the election of, Mr Abduraman Wahid as President.  The most recent items of country information were a Reuters business briefing dated 6 January 2000, an article in The Age of 7 February 2000 and a US State Department report from 1999 dated 20 February 2000.

3. In its findings of reasons the Tribunal said:

   “The Tribunal accepts that the applicant’s business premises were burnt down in the events of 13 May 1998 in Jakarta.  The Tribunal is also mindful of the fact that the applicant has returned twice to Indonesia following his Protection Visa application and does not report having faced any harm during his time there.  The fact that the applicant has undertaken these two trips also confirms for the Tribunal that the applicant was particularly concerned about the economic situation and his ability to engage in economic activity in Indonesia in the future.

   The Tribunal has considered the country information above and the applicant’s evidence.  The Tribunal concludes that discrimination against Sino-Indonesians occurs, particularly in situations of economic downturn; in the recent past the economic crisis has degenerated into disturbances which have included burning and looting of shops and churches.  It also concludes that these disturbances have been met with responses by the security forces which, while they may not be satisfactory in all respects, indicate that the government is willing and able to protect its citizens irrespective of their ethnicity.  It is clear that absolute protection of an individual is not required and state protection by no means implies that the authorities must or can, provide absolute guarantees against harm (Thiyagarajah v the Minister for Immigration and Multicultural Affairs (1997) 73 FCR 176 at 179 (also Minister for Immigration and Multicultural Affairs v Prathapan (1998) 156 ALR 672 at 680-81).

   The Tribunal is of the view that given the changes in the political structure in Indonesia in the recent past, given that a program of reform has been embarked upon and given the signals which are emanating from the President in relation to the Sino-Indonesians, there is not a real chance that the applicant would be persecuted for reasons of his ethnicity. 

   The Tribunal, in the light of the above discussion, finds that the applicant does not have a well-founded fear of being persecuted for a convention reason, now or in the reasonably foreseeable future, should he return to Indonesia.”

4. The first submission of counsel for the applicant was that the country information relied on by the Tribunal was not contemporaneous.  The Tribunal’s decision was handed down on 22 December 2000.  Counsel pointed out, correctly, that the country information was the best part of twelve months old.  This amounted, he said, to an error of law under s 476(1)(e) and also established the no evidence ground under s 476(1)(d).  Further, he said there was a breach of s 476(1)(a) in that the procedures prescribed by s 430(1)(d) were not observed in that the evidence was not referred to.  Counsel referred to the decisions of Full Courts of this Court in Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 and Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287.

5. In my opinion the reasoning of the Tribunal does not disclose any of the errors alleged.  It was a matter for the Tribunal to assess the weight to be given to the country information in the light of, amongst other things, how recently it was obtained.  Also, this was not a case where there was contrary information as to a change for the worse during the course of the year 2000.  The present case is quite different from the two authorities mentioned since those dealt with cases where it was considered the Tribunal had ignored or not paid sufficient regard to material which supported the applicant’s claims.  In the present case, the country information relied on was plainly relevant and went directly to an issue that the Tribunal had to decide.  Such time as had passed, given that there was no material to the contrary, did not render the information irrelevant.

6. Secondly, counsel referred to the mention of situations of economic downturn in the passage from the Tribunal’s reasons already quoted.  He said that there needed to be evidence that the economic conditions in Indonesia at the time of the Tribunal’s decision did not constitute a downturn.  However, read as a whole, I think the Tribunal is there dealing with the issue as to whether such risks to Chinese people in Indonesia as might occur in times of economic downturn would have the requisite “official quality” in the sense, that is, of being officially tolerated or uncontrollable by the authorities of the country of nationality (see Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379). This was a question of fact for the Tribunal on which it had to make its own assessment. It did so in the passage quoted and I can see no error.

7. I would express the Court’s appreciation to Mr Hamilton who appeared under the Court’s pro bono scheme. 

8. The application will be dismissed.  I order that the applicants pay the respondent’s costs to be taxed.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated:             30 November 2001

Counsel for the Applicant:	R Hamilton (pro bono)
Counsel for the Respondent:	H Riley
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	20 July 2001
Date of Judgment:	20 July 2001

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