Lay v Minister for Immigration and Multicultural Affairs

[2000] FCA 1678

FEDERAL COURT OF AUSTRALIA

Lay and Anor v Minister for Immigration & Multicultural Affairs
[2000] FCA 1678

SIAT FUN LAY AND MUHAR SAHURI V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 629 OF 2000

NORTH J
11 OCTOBER 2000
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 629 OF 2000

BETWEEN:

SIAT FUN LAY
FIRST APPLICANT

MUHAR SAHURI
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

NORTH J

DATE OF ORDER:

11 OCTOBER 2000

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.        The application is dismissed. 

2.The first applicant is to pay the costs of the respondent of and incidental to the application, including the costs of the directions hearing held on 2 October 2000 but excluding the costs of the directions hearing held on 5 October 2000.

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 629 OF 2000

BETWEEN:

SIAT FUN LAY
FIRST APPLICANT

MUHAR SAHURI
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:	NORTH J
DATE:	11 OCTOBER 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 4 July 2000 in which the Tribunal affirmed the decision of the delegate of the Minister for Immigration and Multicultural Affairs (the respondent) to refuse to grant Ms Siat Fun Lay, the first applicant, a protection visa. 

2. The second applicant, Mr Muhar Sahuri, is the first applicant’s boyfriend.  His application for a protection visa was also rejected by the delegate of the respondent, and he submitted a joint application to the Tribunal with the first applicant for review of the delegate’s decision.  The Tribunal also affirmed the delegate’s decision in respect of the second applicant. 

3. Although both applicants are named in the application for review in this Court, no argument was presented on behalf of the second applicant.  Hence, references to the “applicant” in these reasons are references to the first applicant, Ms. Siat Fun Lay.

   BACKGROUND AND CLAIMS

4. The applicant was born on 6 February 1974 and is a national of Indonesia.  She arrived in Australia on 30 July 1997.  The applicant is a person of Chinese ethnicity and Christian by religion.  Her claims, as set out in the decision of the Tribunal, focused on her home area of Kalimantan.  She claimed that in 1994 the son of the president of Indonesia took a monopoly of orange growing which displaced her family from that occupation.  Her family now grows vegetables in that area.

5. She said that in 1996 she witnessed fighting between the Madurese and the Dayaks in Kalimantan and claimed that, in the course of that violence, there was violence directed towards Chinese people.  She did not, however, experience violence personally but witnessed some terrible sights.  As a result, she claims, she left Kalimantan for Jakarta.  There she obtained a job in an electronics shop.  At this time, she claims that she was harassed by a powerful Islamic priest who, having two wives, desired her as a third.  At this time she fell in love with the second applicant, whom she claimed the priest sent men to beat up.  Her claims included a general claim of fear of persecution as a result of her Chinese ethnicity. 

   TRIBUNAL FINDINGS

6. In a sympathetic and comprehensive decision, the Tribunal first considered what it described as the major particular claim relating to the attempt to force the applicant into a relationship with the Muslim priest.  The Tribunal deals with a number of issues in relation to this claim before reaching the conclusion that the harassment, even if it continued, would not be for a Convention reason.  The Tribunal said:

   “However, even if the Tribunal found that she was being harassed by that man and would continue to be so, it is not satisfied that there is a Convention reason for that harassment.  Her own evidence was that he wanted her as his third wife because she was very good at business.  That is, it was not for any Convention reason that he pursued her.”

7. Prior to making that finding, the Tribunal determined that although the applicant might have found the local police unwilling to help her to combat the harassment:

   “ … [T]he Tribunal is not satisfied that she had no other avenues of help.  Indonesia has lawyers and courts.”

   The Tribunal continued:

   “It also is implausible that there would be no reputable senior Islamic person to whom she could turn to make a complaint.”

8. Then the Tribunal addressed another option for the applicant, namely, to relocate.  Although the Tribunal found that that would be an unfair solution, it also concluded that she had a capacity to do so because of her experience of shifting from Kalimantan to Jakarta in the past. 

9. The Tribunal next turned to the question of the situation of Chinese in Indonesia.  The Tribunal found that persons of Chinese ethnicity had experienced violence in the past and if that situation had remained unchanged, there would have been a real chance of the applicant becoming a victim in the future.  The Tribunal then dealt with the particular case of the fighting between Dayaks and Madurese in and around Kalimantan.  It accepted that the applicant was traumatised because she had witnessed terrible scenes, and the Tribunal then said:

   “However, the applicant was not one of those at risk except in an incidental sense.”

10. The Tribunal found that the violence did not directly focus on the Chinese minority.  It found that the applicant could return to that area, and that she was not persecuted in Kalimantan in the past, nor at risk of persecution in the future.  The Tribunal then addressed the general situation in Indonesia for persons of Chinese ethnicity and found:

    “ … the situation to be changing and it [the Tribunal] is satisfied that the Applicant will not be prevented from employment and other aspects of basic living in her own home country.”

    GROUNDS FOR REVIEW

11. The applicant filed an amended application for review on 5 October 2000. In that application and orally at the hearing the applicant relied upon s 476(1)(a) of the Migration Act 1958 (Cth) (the Act) to allege that the Tribunal had failed to comply with the procedures that it was bound to comply with under s 430 of the Act and also ruled on s 476(1)(e) of the Act to contend that the Tribunal had made errors of law. 

12. I deal first with the alleged breaches of s 430.  It is convenient to deal with the first two grounds together.  They were expressed in the application as follows: 

    “A.After finding that the local police were unwilling to assist the Applicant, the Tribunal fails to explain why the Applicant would have any more success with Indonesia's lawyers and court system, or how a Chinese Christian female could make a complaint to a senior Islamic person and what her chances of success would be.

    B.Having found that the Applicant left home to move to Jakarta to live with a friend and having been told by the Applicant that she did not have any friends in any other part of Jakarta, the Tribunal failed to explain what would be involved by the Applicant moving to another part of Jakarta or another part of the country where she knows no-one.”

13. These grounds address the findings which the Tribunal made before it made the finding that the harassment claim was not persecution for a Convention reason.  I said earlier that the reasons of the Tribunal were sympathetic.  On this issue such an approach can be seen.  It would have been perfectly open to the Tribunal to say in very short terms that the claims based on harassment simply did not raise a Convention ground and should be dismissed.  Rather, the Tribunal sought to provide a fuller and more humane view of the applicant's position.  However sympathetic those reasons were meant to be, they had no operative effect in law if the Tribunal was correct in finding that the harassment claims were not based on Convention grounds.

14. Mr Tringas, who appeared as counsel for the applicant, correctly, in my view, did not contend that the Tribunal erred in its conclusion that the harassment claim was not based on  a Convention reason.  That concession made the arguments on these two grounds impossible to uphold.  Once it is appreciated that the harassment claim was not persecution for a Convention reason, then, even if the Tribunal had erred as alleged in relation to the ability of the applicant to find other avenues of help or in her capacity to relocate, such errors would not be material because the harassment claim would have necessarily failed.

15. The third basis upon which it was said that the Tribunal acted in breach of s 430 was expressed in paragraph (c) as follows:

    “The Tribunal accepted that the Applicant had witnessed much discrimination and violence against the Chinese in Indonesia.  She found there was a real chance that the Applicant could become its victim in the future if the situation did not improve.  The Member did not however then go on to explain how she arrived at the conclusion that the Applicant was only at risk in an incidental sense.”

16. In my view, the treatment by the Tribunal of the claim based on Chinese ethnicity did not breach s 430.  Mr Tringas relied upon two paragraphs in particular in the reasons as follows:

    “The Applicant framed her claims within the context of the situation of people of Chinese ethnicity in Indonesia.  There is evidence before the Tribunal from other sources of the prevalence of Chinese within the business community in Indonesia and that this added to the grievances others held against them.  The collapse of the Indonesian economy in the mid-decade of the 1990s led to rumours of Chinese profiteering and of their keeping goods away from the people.  There is strong evidence that these rumours and the violence that followed were stoked by political and military people for their own reasons.  Had this level of violence continued in Indonesia, and continued against the Chinese, then there must have been a real chance of the Applicant becoming its victim in the future.

    The Tribunal also has taken into account that she was in the locality of the vicious fighting which went on between the Dyaks and the Madurese, in which the Chinese were only incidental.  It accepts that she saw terrible scenes and felt traumatised by them.  Violent incidents were widely reported in the Australian press.  However, the Applicant was not one of those at risk except in an incidental sense.  The indigenous Dyaks have long-held grievances against the in-comer Madurese and have driven many of them out of West Kalimantan.  They have not attempted to do the same to other groups, such as the Chinese minority, which has been there for some centuries.  The Applicant has the choice not to return there if she continues to e [sic] traumatised by what she saw.  However the Tribunal is not satisfied that these events were ones in which she was persecuted or that she would be at risk if she returned there in the future.”

17. Mr Tringas, with some degree of ingenuity, suggested that the first paragraph involved a finding of danger as a result of Chinese ethnicity and the sentence “However, the applicant was not one of those at risk, except in an incidental sense” in the middle of the second paragraph was inconsistent and therefore the reasoning process of the Tribunal was not properly exposed. 

18. In my view, this reading of the two paragraphs, particularly in the context of the remaining page of the decision, is misconceived.  The process of reasoning on the Chinese ethnicity ground was that the Tribunal first accepted that in the past, there had been a level of violence in Indonesia against the Chinese which, had it continued, would have been a real threat to the applicant. 

19. The Tribunal then considered the particular circumstances of the fighting between Dayaks and Madurese in Kalimantan and said, in relation to that particular fighting, that the applicant was not involved in the direct fighting and was therefore at risk only in an incidental sense.  In other words, in that paragraph, the Tribunal was dealing with a separate and specific locality and came to the conclusion that:

    “The Tribunal is not satisfied that these events are ones in which she was persecuted or that she would be at risk of persecution if she returned there in the future.”

20. That is to say, the local problems in Kalimantan had not been the source of persecution in the past and would not be in the future.  The Tribunal then returned to the position of Chinese in Indonesia generally and concluded, as earlier indicated, that the past danger of persecution had abated and that in current and likely future circumstances, the applicant did not face a real chance of persecution by reason of her ethnicity.  Thus, the claimed inconsistency between the two parts of the decision does not in truth exist and no grounds have been made out that the Tribunal failed to comply with its obligations under s 430 in respect of the Chinese ethnicity claim.

21. I turn now to consider the error of law ground.  In the end, Mr Tringas pursued only grounds (a) and (b).  Ground (a) read:

    “The Tribunal erred in relation to its obligations under S.430 of the Act as stated in the particulars set out in ground 1 above.”

22. He rightly conceded that if he failed to persuade the Court that there had been a breach of s 430, then this alternative way of raising the same matters could not succeed.  Ground (b) provided:

    “The Tribunal erred in applying the wrong test in deciding that the Applicant could relocate to another part of Jakarta or another part of Indonesia.”

23. The same considerations apply to ground (b) as applied in relation to the s 430 ground on the same issue.  That is to say, even if the Tribunal did err in applying the wrong test as alleged, then the error was not material to the decision.  The relocation argument related only to the harassment claim and, as earlier explained, the harassment claim was found to based on reasons outside the Convention grounds.  In the result, the application must fail.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:             24 November 2000

Counsel for the Applicant:	Mr K Tringas
Solicitor for the Applicant:	MSC Legal Services
Counsel for the Respondent:	Mr J Gibson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	11 October 2000
Date of Judgment:	11 October 2000