Ibrahim, Mustafa v Immigration and Multicultural Affairs

[1998] FCA 802

FEDERAL COURT OF AUSTRALIA

MIGRATION – application for a protection visa - refugee status – Indonesia – province of Aceh – claims to have been in hiding in Jakarta – evidence of interest shown in applicant by authorities – recent invention – internal flight principle – whether internal flight principle applies when persecution is by the State but is only carried out in one area of the entire country

Migration Act 1958 (Cth) ss475 & 476

Randhawa v Minister for Immigration,Local Government & Ethnic Affairs (1994) 52 FCR 437
Attorney-General of Canada v Ward (1993) 103 DLR (4^th) 1

MUSTAFA IBRAHIM v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
NG 568 OF 1997

EINFELD J
SYDNEY
10 JULY 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 568  of  1997

BETWEEN:	MUSTAFA IBRAHIM APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		EINFELD J
DATE OF ORDER:		10 JULY 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. the application be dismissed

1. the applicant pay the respondent’s costs of the proceedings

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	NG 568 of 1997

BETWEEN:	MUSTAFA IBRAHIM APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	EINFELD J
DATE:	10 JULY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

Mustafa Ibrahim seeks an order of review under Part 8 of the Migration Act 1958 (Cth) (the Act) of a decision of the Refugee Review Tribunal (the Tribunal) made on 19 June 1997. The Tribunal determined that the applicant is not a refugee within the meaning of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol in that he did not have a well-founded fear of persecution in Indonesia.

FACTUAL BACKGROUND

The applicant is an Indonesian national from the province of Aceh on the island of Sumatra.  In 1988, while living in Aceh, he joined a separatist movement called Aceh Merdeka.  His activities in the movement included helping in the production and distribution of a magazine and pamphlets and attending meetings.  Members of his immediate family provided food and clothing to the separatists.  The applicant’s family was intimidated by the authorities to discourage their involvement in Aceh Merdeka and the applicant claimed that two of his relatives were killed by the Indonesian military because of their involvement.

In 1989 the applicant came to the attention of the authorities in Aceh so he moved to Jakarta where he remained for six years until leaving for Australia in 1995.  During this period he obtained his Indonesian identity card (KTP), attended a tertiary institution and was able to find casual work.  He also maintained his involvement in Aceh Merdeka.

The applicant arrived in Australia on 19 March 1995 and applied to what was then the Department of Immigration & Ethnic Affairs for a protection visa on 3 April 1995.  The decision of the Minister’s delegate to refuse the application was made on 4 October 1995 and the applicant applied to the Tribunal for a review of the decision on 30 October 1995.  The Tribunal’s decision was delivered more than a year and seven months later, on 19 June 1997, and on 18 July 1997 the applicant filed this application for an order of review in this Court.

GROUNDS OF REVIEW

The Tribunal decision is reviewable by this Court pursuant to section 475 of the Act. The grounds upon which a person aggrieved by a decision may seek a review of a decision are found in section 476:

476(1)Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

(a)that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

(b)that the person who purported to make the decision did not have jurisdiction to make the decision;

(c)that the decision was not authorised by this Act or the regulations;

(d)that the decision was an improper exercise of the power conferred by this Act or the regulations;

(e)that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

(f)that the decision was induced or affected by fraud or by actual bias;

(g)that there was no evidence or other material to justify the making of the decision.

(2)… (not presently relevant)

(3)           The reference in paragraph (1)(d) to an improper exercise of a power is to be construed as being a reference to:

(a) an exercise of a power for a purpose other than a purpose for which the power is conferred; and

(b) an exercise of a personal discretionary power at the direction or behest of another person; and

(c) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

but not as including a reference to:

(d) taking an irrelevant consideration into account in the exercise of a power; or

(e) failing to take a relevant consideration into account in the exercise of a power; or

(f) an exercise of a discretionary power in bad faith; or

(g) any other exercise of the power in such a way that represents an abuse of the power that is not covered by paragraphs (a) to (c).

(4)           The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

(a)the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

(b)the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.

Mr Ibrahim relied on the following grounds of review in his application:

1.The Tribunal erred in directing itself that there ought to be evidence before it showing that the applicant suffered confrontation with government authorities whilst living in Jakarta and that those authorities had enquired of his family as to his whereabouts before it was open to the Tribunal to find that the authorities were interested in the Applicant after 1989 which direction constitutes a ground of review within section 476(1)(d) and 476(3)(c) of the Migration Act 1958.

2.The Tribunal erred in finding that the Applicant advanced a claim, namely that he was hiding in Jakarta, in order to overcome a “difficulty set out in the Delegate’s decision”, namely that the Applicant remained in Jakarta for some 5 years without adverse attention, as that finding was an inference that was not open to the Tribunal, such error being a ground of review within section 476(1)(e) of the Act.

3.The Tribunal erred in that it failed to consider and determine the question whether the Applicant had a well-founded fear of persecution and, owing to such fear was unwilling to avail himself of the protection of his country of nationality and instead considered and determined whether the Applicant “faced a real chance of persecution if he were to reside outside of Aceh on returning to Indonesia”, which error constitutes a ground of review within section 476(1)(e) of the Act.

4.The Tribunal erred in that it directed itself that if the Applicant could remain outside Aceh without suffering harm, those facts would amount to being within the protection of the Applicant’s country of nationality which is a misdirection in law when the authorities of that country are the instigators of the persecutory conduct, which error is a ground for review within section 476(1)(e) of the Act.

These grounds are at best unclear.

THE TRIBUNAL DECISION

The crux of the Tribunal’s decision was:

In assessing the Applicant’s Convention claims I am required to consider whether he faces a real chance of treatment amounting to persecution for a Convention reason if he returns to Indonesia.

The independent evidence establishes that a person who falls into disfavour with the authorities because of their activities with Aceh Merdeka may face serious harm which, depending on the circumstances, may give rise to a well-founded fear of persecution within the meaning of the Convention.  I am not satisfied, however, on the evidence before me, that the Applicant is such a person.

...

For the reasons which follow, I do not accept the Applicant’s contention that he was in hiding in Jakarta or that because of his involvement in Aceh Merdeka that he faces a well founded fear of persecution for Convention purposes.

The Tribunal made the following factual findings:

1. the applicant’s claim to have been in hiding in Jakarta had been made up and presented to the Tribunal in order to deal with the view of the delegate that his ability to stay in Jakarta for six years without attracting any adverse attention militated against a well-founded fear of persecution.  The Tribunal also concluded that the applicant’s ability to obtain his identity card, attend a tertiary institution and find casual work were inconsistent with being in hiding

1. there was no evidence that the applicant came to any harm or that the authorities showed any interest in him while in Jakarta, nor was there any evidence that the authorities maintained a current interest in him by visiting his family in Aceh.  The Tribunal concluded that if the authorities did hold a current interest in him, some evidence to that effect would have been likely

1. the independent evidence did not support the applicant’s contention that members of Aceh Merdeka are pursued and arrested outside of Aceh 

1. due to the absence of interest in the applicant by the authorities at the time he left Indonesia, including the fact that he was issued a passport, the applicant’s activities in Aceh Merdeka were of no concern to the authorities

1. based on independent evidence before the Tribunal, the efforts of the military to find supporters of Aceh Merdeka is now much less severe than it was from 1989 to 1991 and is restricted to Aceh and surrounding areas

1. it is not unreasonable to expect the applicant to live in Jakarta where he lived for several years before coming to Australia

THE APPEAL

In some disregard of the grounds appearing in the application for review, the applicant argued four grounds in support of the orders now sought:

Ground 1

The applicant claimed that the Tribunal misdirected itself that if the authorities did hold an interest in him while he was living in Jakarta, there would be some evidence of the interest.  He submitted that this direction constituted an error within the terms of subsections (1)(d) and (3)(c) of section 476.

The fundamental problem with this submission is that the Tribunal did not in fact direct itself in any such manner.  The decision merely stated that there was no evidence that the authorities had shown an interest in the applicant while he lived in Jakarta and that, in the Tribunal’s view, if there had been any interest, there would be some evidence of that fact.  This observation did not preclude the Tribunal from finding that the authorities were interested in the applicant’s activities in Jakarta; it merely stated one of the relevant matters in deciding one way or another. 

The applicant asserted that the authorities were interested in him in Jakarta.  The Tribunal found to the contrary.  It specifically referred to the fact that it did not require rebutting evidence before it could conclude that a particular factual assertion by the applicant was not made out.  It was correct to so hold because it is extremely difficult to prove a negative, in this instance to provide evidence of a lack of interest, apart from pointing out, as the Tribunal did, that there was no positive evidence to suggest such an interest.  In the absence of any specific evidence, and given the likelihood of there being some evidence if any interest had been shown, the Tribunal concluded, as a matter of fact and logic, that there had been no such interest shown in the applicant.  This conclusion manifested no error of law.  It was but one particular of support for a finding that the applicant’s fear of  persecution was not well-founded.

Ground 2

The applicant claimed that the Tribunal erred in finding that his claim that he had been hiding in Jakarta between 1989 and 1995 was a recent invention, which he had made up in order to deal with the perceived difficulty in the decision of the delegate that he had lived in Jakarta for six years without receiving any adverse attention from the Indonesian authorities.  The applicant claimed that the error was reviewable under section 476(1)(e).  The applicant submitted alternatively that the finding and conclusion on this matter manifested an error within section 476(4)(b) of the Act in that the Tribunal implicitly based its decision on the fact that as the applicant did not make any such claim at an earlier time, the “hiding” had not occurred.  

The applicant said that there was evidence before the Tribunal that he had in fact raised his claim to have been in hiding well before the matter came before the Tribunal.  The applicant cited the record of his departmental interview in which he stated:

From 1993 to earn my living I took odd jobs.  I could not (find) a place in formal institutions.  I was afraid they would discover my involvement in Aceh Merdeka.  I moved from one place to another so as not to be discovered.

And further:

I was doing a lot of things so they would not discover me.

The applicant said that this evidence admitted of only one conclusion, namely that the claim to have been in hiding was not a recent invention.  The contrary finding of the Tribunal thus constituted an error which, he said, vitiated its decision that he had not been in hiding.

This ground misapprehends the substance of the Tribunal’s decision.  The actual finding was that the applicant had not been in hiding in Jakarta between 1989 and 1995, based on the finding that the claim was not credible.  The Tribunal cited several pieces of evidence to support this conclusion, including the fact that the applicant had both worked and studied in Jakarta during this period.  In further support of the finding, the Tribunal stated that the applicant’s claim to have been in hiding had only recently been brought up.  In essence the Tribunal merely used its finding of recent invention as further corroboration for its primary finding, which was that the applicant had not been in hiding.

In my opinion, the evidence before the Tribunal on whether the claim to have been in hiding had previously been made was equivocal.  The Tribunal may have erred in its finding of recent invention.  Nevertheless the Court must consider any such error in the context of the rest of the evidence on the subject and the determination as a whole.  Even if this finding was not correct, and it should have been accepted that the claim to have been hiding had in fact been made from the applicant’s first interview by the department, the error means only that a single piece of corroborative evidence is removed.  There was still a substantial body of evidence from which the Tribunal could conclude that the applicant was not in hiding.  In my opinion, the overall conclusion reached by the Tribunal on the matter was well open on the evidence.  If there was an error, it was not decisive on the central question to be decided of whether the applicant now entertained a well-founded fear of persecution if he returned to Jakarta because of the fear he had entertained when he was last there.

Ground 3

The applicant gave evidence about the arrest and execution of a separatist colleague named Rackman, as he claimed, for his involvement in Aceh Merdeka, and sought to use this evidence to convince the Tribunal that the Indonesian authorities did persecute people in the separatist movement outside of the Aceh region.  The applicant claimed that a consequence of the Tribunal’s adverse finding on his credibility on the hiding issue was that his evidence regarding the persecution of members of Aceh Merdeka in Jakarta was rejected.  He submitted that because he can show that the “hiding” claim was not a recent invention, the Tribunal should not have used that matter in assessing the credibility of his claims about the persecution of separatists in Jakarta.

In its decision on this matter, the Tribunal stated:

... in view of the Applicant’s willingness to advance the claim that he was in hiding in Jakarta in order to overcome a difficulty set out in the Delegate’s decision, it does not inspire confidence that his account about this matter [the Rackman assertion] is accurate and frank.

The finding of the Tribunal was that the Indonesian authorities were only interested in those members of Aceh Merdeka who were living in the Aceh region.  It based this conclusion on a number of different pieces of evidence, including reports of Amnesty International, the U.S. State Department, and official communiques from Australia’s Department of Foreign Affairs and Trade (DFAT), all of which in different ways supported the conclusion.  Even without a determination about the credibility of the applicant, there was ample evidence to support the Tribunal’s conclusion regarding the limits of the Indonesian authorities’ activities in relation to members of the separatist movement.  Assuming that the Tribunal erred in its ‘recent invention’ finding, and therefore that there was no basis for the comment that that claim by the applicant ‘does not inspire confidence’ in his account about the Rackman allegation, no error by the Tribunal is demonstrated because its finding on this matter was actually based on the specific evidence before it and not on its rejection of the applicant’s evidence on the matter.

Ground 4

The applicant claimed ‘an incorrect application of the internal flight principle’ based on the Tribunal’s conclusion that because the applicant could live and work without fear in Jakarta, he did not have a well-founded fear of persecution in relation to Indonesia as a whole.

In Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at 442, Chief Justice Black emphasised the necessity of asking whether an applicant’s fear of persecution related to the country of nationality and not merely a particular region in which the applicant might live. The internal flight principle as enunciated in that case focuses on whether it is reasonable in the circumstances to expect people who have a well-founded fear of persecution in relation to a part of a country from which they have fled to relocate to another part of the country of nationality where they can access effective protection. If it is reasonable to relocate, the applicant will not be a refugee as defined by the Convention.

The applicant submitted that the internal flight principle does not apply when it is the acts of the authorities that the applicant fears.  He said further that the principle is not satisfied in circumstances where protection is achieved only because an applicant either avoids discovery or pursues his political opinions clandestinely.  These contentions misconceive the fundamentals of refugee law and are in any case not relevant to this case because of the Tribunal’s findings of fact.

The rationale for refugee protection was identified by the Supreme Court of Canada in Attorney-General of Canada v Ward (1993) 103 DLR (4^th) 1. La Forest J, delivering the judgment of the Court, stated:

International refugee law was formulated to serve as a back-up to the protection one expects from the state of which an individual is a national.  It was meant to come into play only in situations when that protection is unavailable, and then only in certain situations.  The international community intended that persecuted individuals be required to approach their home state for protection before the responsibility of other states becomes engaged.  For this reason James C Hathaway refers to the refugee scheme as ‘surrogate or substitute protection’, activated only upon failure of national protection: see The Law of Refugee Status (Toronto: Butterworths, 1991) at p 135.

In that work at p 133, Professor Hathaway explained the correct operation of the internal flight principle:

A person cannot be said to be at risk of persecution if she can access effective protection in some part of her state of origin.  Because refugee law is intended to meet the needs of only those who have no alternative to seeking international protection, primary recourse should always be at one’s own state.

The surrogate nature of international protection is clear from the text of the Convention definition itself, which limits refugee status to a person who can demonstrate inability or legitimate unwillingness ‘to avail himself of the protection of [the home] state’.  That is, the focus of analysis is the relationship between the claimant and her national government.  Where there is no de facto freedom from infringement of core human rights in a particular region (for example, due to the actions of an errant regional government or forces which make the exercise of national protection unviable), but the national government provides a secure alternative home to those at risk, the state’s duty is met and refugee status is not warranted.  [Original emphasis.]

In this particular case, the applicant lived in Jakarta for 6 years before coming to Australia.  The Tribunal found that the applicant was involved in the Aceh Merdeka movement in Jakarta, but he was not hiding.  Thus the Tribunal’s finding of fact, which cannot be disturbed by this Court, was that the applicant did not have to live in secret in Jakarta.  The Tribunal found that a member of Aceh Merdeka may have the requisite fear of being persecuted in the Aceh region itself but that the efforts of the armed forces to find supporters of Aceh Merdeka are now restricted to that and surrounding areas.  Finding that the applicant was able to reside safely in Jakarta upon his return to Indonesia, and that it was in the circumstances reasonable that he do so, the Tribunal concluded that the applicant would not face a real chance of persecution and therefore did not have a well-founded fear of persecution in relation to Indonesia as a whole. As a result, the issue of receiving effective protection from the state did not arise.

CONCLUSION

The applicant has not made out any grounds for disturbing the decision of the Tribunal.  The application is dismissed with costs.

I certify that this and the preceding eleven (11) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Einfeld

Associate:

Dated:             10 July 1998

Counsel for the Applicant:	Mr R.B. Wilson
Solicitor for the Applicant:	Janice Vu & Associates Solicitors
Counsel for the Respondent:	Mr Robert Beech-Jones
Solicitor for the Respondent:	Mrs Ruth Cheetham, Australian Government Solicitor
Date of Hearing:	6 November 1997
Date of Judgment:	10 July 1998