Iskandar v Minister for Immigration and Multicultural Affairs

[2000] FCA 494

FEDERAL COURT OF AUSTRALIA

Iskandar v Minister for Immigration & Multicultural Affairs [2000] FCA 494

MIGRATION – protection visa – application for order of review of decision of Refugee Review Tribunal refusing grant – where no grounds specified in the application

Migration Act 1958 (Cth), s 476(1)

ANDREW ISKANDAR v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 21 OF 2000

EMMETT J
SYDNEY
4 APRIL 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 121 OF 2000

BETWEEN:	ANDREW ISKANDAR Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent
JUDGE:	EMMETT J
DATE OF ORDER:	4 APRIL 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 121 OF 2000

BETWEEN:	ANDREW ISKANDAR Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	EMMETT J
DATE:	4 APRIL 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of Indonesia of Chinese ethnicity.  He arrived in Australia on 11 October 1989.  On 15 October 1999, more than ten years later, he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs.  On 22 November 1999, a delegate of the Minister refused to grant a protection visa and on 26 November 1999, the applicant applied for a review of that decision by the Refugee Review Tribunal (“the Tribunal”).  On 21 January 2000, the Tribunal affirmed the decision not to issue a protection visa.

2. On 16 February 2000 the applicant filed an application with this Court for an order of review of the decision of the Tribunal.  Under the Migration Act 1958 (Cth) (“the Act”), this Court is empowered to interfere with a decision of the Tribunal only on the limited grounds set out in section 476(1) of the Act. The application specifies no grounds. Rather it contains a statement that “[d]etails will be sent at later date”. 

3. When the matter first came before me, I directed that an amended application be filed, specifying the grounds relied on.  No amended application has been filed.  The applicant appeared in person.  He was assisted in the hearing before me by an interpreter.  He appeared to understand the questions that I put to him through the interpreter.  I have been informed by the solicitor for the Minister that, prior to the hearing, information was furnished to the applicant concerning Legal Aid authorities who might have been approached for legal assistance.  However, the applicant has apparently not had the assistance of any legal advice.

4. The applicant strikes me as being a gentle and emotional person. His submissions to me consisted of a plea that I make an order that he be allowed to remain in Australia. He was unable to develop any contention as to any ground under the Act upon which this Court could interfere with the decision of the Tribunal.

5. The Tribunal gave reasons for its decision of 21 January 2000 and I have examined those reasons carefully.  The Tribunal, in its reasons, accepted reports from the Department of Foreign Affairs and Trade (“DFAT”) concerning the state of affairs in Indonesia.  The Tribunal noted the ongoing economic crisis in Indonesia and observed that that crisis had witnessed serious incidents of civil unrest.  It noted that early in 1998 there were attacks on Chinese owned shops in small towns in eastern Java and other islands. 

6. The Tribunal accepted reports from DFAT observing that there had been a history of discrimination and low level harassment against the Chinese, that the Sino Indonesians are a group that is strongly represented in the retail sector in urban areas in the major provincial centres, and that they are perceived to be wealthy.  The Tribunal accepted the report that shopkeepers in particular have been the subject of attack by Indonesians expressing anger at price rises and commodity shortages and that there is some evidence that, in many cases, only Chinese shops were attacked while non-Chinese shops were spared.  However, the Tribunal also accepted the report that there were influential official policy announcements discouraging ethnic and religious friction.  The Tribunal also accepted reports from the Human Rights Watch report, Indonesia Alert, that the targets of violence have been Chinese owned shops, homes and businesses.  The Tribunal accepted that in none of the dozens of outbreaks of violence chronicled has there been evidence of direct Government instigation of the rioters.  Nevertheless, according to the report, some senior officials have appeared to endorse the anti-Chinese sentiment.

7. The Tribunal accepted the applicant's claims in relation to his treatment in Indonesia.  In particular, the Tribunal accepted that he was discriminated against and harassed, as he claimed.  It accepted that he was bullied at school and that he had rocks thrown at his house and faeces smeared on his door.  It also accepted that he had not been able to celebrate Chinese New Year publicly and that the police and other citizens took goods from his shop without paying for them.  The applicant claimed that he was detained on two occasions, that once he was burnt with cigarette butts and the second time he was beaten.  While the applicant was not able to recall the dates of the incidents, the Tribunal appears to have accepted that they occurred.  However, the Tribunal did not consider that the evidence before it indicated that the incidents were related to the applicant's ethnicity or religion, or that they were any more than unlawful acts perpetrated by police.

8. While the incidents occurred either in the late 1970s or early 1980s, the applicant continued to carry on with business until he left Indonesia in 1989.  The Tribunal was not satisfied that the occurrences about which the applicant spoke were of a nature or severity such as to constitute persecution within the meaning of the Refugees Convention.  The Tribunal was not satisfied that the detention incidents were motivated by the applicant’s ethnicity or religion.  In any event the occurrences of necessity occurred more than 10 years ago. 

9. The Tribunal considered that it was significant that the applicant waited for 10 years before applying for protection visa and then only when he was in detention.  The Tribunal drew a conclusion from that circumstance that the applicant was not escaping Indonesia because he was being persecuted when he left in 1989.  The Tribunal was of the view that, despite the events of 1998 involving Sino-Indonesians, the targeting of that group is not so much related to the ethnic element but to the economic one.  The Tribunal was not satisfied on the evidence before it that people of Chinese ethnicity are generally subjected to physical attacks, are generally excluded from education or employment, face serious impediments or restrictions on their movement or to their livelihood, or are otherwise generally subjected to a degree of discrimination.

10. The Tribunal found that although the security forces in some instances cannot protect property that is under attack by rioters, the security forces can, and do, provide adequate protection to the ethnic Chinese population in Indonesia, and there is no indication that the degree of protection normally to be expected of the government to the ethnic Chinese is lacking or denied.  It appeared to the Tribunal that the security forces in Indonesia can usually provide personal safety, although in some instances they could not protect property that was under attack by rioters.  The information before the Tribunal indicated to the Tribunal that the security forces have relatively strong control of the situation on Java, particularly in larger cities and noted that the applicant has lived for most of his life in Jakarta.

11. The applicant told the Tribunal that he was discriminated against because of his Buddhist religion.  The applicant made allusions to his being on occasions referred to as a “heathen” by Muslims.  The Tribunal did not consider that there was any evidence before it which indicated that there was discrimination against, or persecution of, Buddhists in Indonesia, and the Tribunal found that the reference to the applicant as a heathen did not, of itself, constitute persecution within the meaning of the Refugees Convention.

12. In the light of the findings made by the Tribunal, it was not satisfied that the applicant faces a real chance of persecution for reasons of ethnicity or religion if he returns to Indonesia. There did not appear to me, on my reading of the reasons, to be any grounds within section 476(1) upon which this Court could interfere with the decision of the Tribunal. The decision was in effect a decision of fact. It follows, in my opinion, that the application fails and should be dismissed.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             26 April 2000

Counsel for the Applicant:	The applicant appeared in person assisted by an interpreter
Solicitor for the Respondent:	Mr A Markus for the Australian Government Solicitor
Date of Hearing:	4 April 2000
Date of Judgment:	4 April 2000