NBKE v Minister for Immigration - [2006] FMCA 956

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBKE v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 956

MIGRATION – RRT decision – Chinese person travelling on Indonesian passport – feared persecution in China as Shouter and ethnic violence in Indonesia – claimed passport was obtained fraudulently – Tribunal considered her situation only in Indonesia – no jurisdictional error found.

Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36(2), 422B, 424A, 424A(3)(a), 424(3)(b), 474(1), 483A, Pt.8

Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2

Applicant:

NBKE

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG436 of 2005

Judgment of:

Smith FM

Hearing date:

15 June 2006

Delivered at:

Sydney

Delivered on:

15 June 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms T Wong

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG436 of 2005

NBKE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Federal Court on 21 December 2004. The application was transferred to this Court by order of Jacobson J on 16 February 2005. It seeks orders by way of judicial review of a decision of the Refuge Review Tribunal (“the Tribunal”) dated 8 November 2004 and handed down on 1 December 2004. The Tribunal affirmed a decision of a delegate refusing to grant a protection visa to the applicant.
The Court has the same power as the Federal Court in relation to the present proceeding, pursuant to s.483A of the Migration Act 1958 (Cth) (“the Migration Act”). That section was repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41, and Acts Interpretation Act 1901 (Cth), s.8).
The powers of both Courts are subject to limitations under Part 8 of the Migration Act, which have the effect that I cannot set aside the Tribunal’s decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error. I do not have the power myself to decide whether the applicant qualifies for a protection visa.
The applicant arrived in Australia on 24 April 2004 on an Indonesian passport in her name, containing a one month visitor’s visa allowing entry to Australia. The passport was eventually presented to the Tribunal, and in its reasons it referred to discussing its contents with the applicant at the hearing. The Tribunal noted that at the back of the Indonesian passport, which had been issued on 23 March 2004, there was reference to the applicant being the wife of an Indonesian citizen whom she had legally married on 11 March 2004, and there was reference to a marriage certificate. There was also reference to the applicant acquiring Indonesian nationality. As I shall indicate below, the Tribunal formed an opinion that the passport was a “valid Indonesian passport”, which I take to mean a passport validly issued by the Indonesian Government evidencing that that Government regarded the applicant as an Indonesian national entitled to its protection.
On 20 May 2004, an application for a protection visa was lodged on behalf of the applicant by a migration agent, Yu Jun Simon Wu, in which the applicant sought protection in Australia so that she did not have to go back to Indonesia and China. The application claimed that the applicant had been born in China, and referred to her marriage in Indonesia and to her “current travel document” as being the Indonesian passport. A copy of some pages from the Indonesian passport was, it appears, also presented to the Department.
The factual basis upon which the claim for protection was made was very briefly indicated in one typed paragraph:
My health was not very good in 2002, and introduced by my cousin I became a member of “Shouters” which is an underground religious organization in Fu Qing China. Praying made me feel peaceful, and gradually, my health was becoming better and better. On a Sunday in January 2004, when I was having a gathering, local police found out and came to arrest people. With the help of other members, I could return home. However, some other members were arrested and they were tormented cruelly by the Chinese authorities and they could not be released unless they disclose other members’ locations. I worry about my safety and left China to Indonesia in March 2004. After I went to Indonesia, I realized that race discrimination is very serious there; I could not enjoy the same rights as other Indonesians because of my Chinese ethnicity, so I came to Australia for protection. Both China and Indonesia are not safe for me. China is not safe for me because of my being a member of “Shouters” which is an underground religious organization. Indonesia is not safe for me because of my Chinese ethnicity. I sincerely hope that Australian government can provide me with protection.
A delegate refused the application on 17 June 2004. The delegate addressed the applicant’s claims to satisfy the definition of refugee under the Convention by reference to her situation if she returned to Indonesia. The delegate referred to information concerning the situation of ethnic Chinese people in Indonesia, and concluded:
… I accept that ethnic Chinese face a degree of discrimination. However, I cannot be satisfied on the evidence before me that these problems amount to discrimination or to hardship amounting to persecution.
The delegate also considered the applicant’s position in Indonesia in relation to her claimed religion as a Christian “Shouter”.
An application for review was lodged with the Tribunal on 20 July 2004. The application did not present additional supportive material, and no additional supporting material had been sent to the Department other than the applicant’s short statement. The review application contained a similarly brief statement repeating the claims made to the Department. It contained an added sentence:
There are turmoils in Indonesia constantly and my Chinese ethnicity would have been a serious matter if I continued to stay in Indonesia.
However, no general information concerning the situation of Chinese people in Indonesia was ever submitted to the Tribunal.
The applicant attended a hearing to which she was invited on 2 November 2004. A transcript of the hearing is not in evidence before me, and the Tribunal gives what is clearly only an outline of its questions and the answers given by the applicant.
The Tribunal referred the applicant to the annotations in her passport concerning her marriage and acquisition of Indonesian nationality. She told the Tribunal:
The applicant stated that she did not know the person she had ostensibly married and said all she knew was that her passage to Australia was being arranged. She did not know she had divested herself of her PRC citizenship, nor that her passport had been returned to the PRC embassy. She was under the impression that her passport had been sent back to her family in China. She stated that the person who was arranging all this in Indonesia was a colleague of the people smuggler she had dealt with in China.
The applicant told the Tribunal that she already had a husband and children in China, and that she had believed that her marriage in Indonesia was false for the purposes of acquiring travel documents. The applicant also gave some further information about her claims to have left China due to persecution of her as a member of the Shouter Christian sect.
The Tribunal referred to its questions as to what she feared if she returned to Indonesia:
The applicant was asked if she fears harm were she to return to Indonesia. She said that as she is not an Indonesian, she did not intend to return there. It was pointed out to her that she holds a valid passport which indicates she is indeed an Indonesian citizen. She said she had been told that Chinese and Christians face harm in Indonesia. The Tribunal discussed with her independent evidence cited below that indicated that while there may be a level of discrimination and occasional hostility, the Christian and Chinese communities of Indonesia generally led normal lives albeit with a level of apprehension. The applicant stressed that she had not intended to live in Indonesia and the agent had assured her that she had had a “false marriage”.
Subsequent to the hearing and, it would seem, at a point of time after the Tribunal had written a statement of reasons, the Tribunal was sent a statement by the applicant giving a further account of how she acquired her Indonesian passport. It is clear that this statement was considered by the member constituting the Tribunal, notwithstanding that he had already prepared his decision. This is because the Court book contains a statement by him noting that he had decided not to recall his decision because “the details provided were already made known to me at the hearing”. On the evidence before me, I am not able to identify any evidence that this was not the case.
In its statement of reasons, the Tribunal referred to the history of the matter and the applicant’s claims at the hearing. It then set out a lengthy examination of country information relevant only to the applicant’s claims in relation to her situation in Indonesia. This included information concerning the commitment of Indonesian governments to allowing religious freedom, their efforts in recent times to remove discriminatory laws directed at ethnic Chinese and other ethnic groups, and the efforts of the Indonesian authorities to prevent a recurrence of ethnic rioting such as had occurred in 1998.
Under the heading “Findings and Reasons”, the Tribunal explained why it had only addressed the applicant’s situation in Indonesia. It said: “in the light of the applicant holding a valid Indonesian passport, the Tribunal has assessed her claims in relation to Indonesia”.
In my opinion on the material before the Tribunal, it was open to it to have reached the opinion that Indonesia was “the country of [her] nationality” within the meaning of that reference in Article 1A(2) of the Convention definition. Under s.36(2) of the Migration Act, the issue for the Tribunal was therefore whether it was satisfied that the applicant had a well‑founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion which made her unable or unwilling to avail herself of the protection of that country. There was no evidence before the Tribunal which I can identify, that would have required the Tribunal to be satisfied that the Indonesian Government would not afford to the applicant the protection which it could be expected to afford to an Indonesian national.
The Tribunal referred back to the country information which was previously discussed, and in relation to the applicant’s religion it found that “there is not a real chance the applicant will be persecuted for reasons of her religion in the reasonably foreseeable future”.
In relation to discrimination against ethnic Chinese people in Indonesia, the Tribunal referred to the independent evidence earlier discussed by it. It said that it was “not satisfied that any discrimination she may have suffered in the past, or may suffer in the reasonably foreseeable future, constitutes serious harm”.
The Tribunal then addressed the applicant’s concerns about ethnic violence directed at ethnic Chinese people if she returned to Indonesia. It accepted that the applicant had a “subjective fear of racial unrest against Chinese should she return to Indonesia”. However, it is clear that it was not satisfied that there was a “real chance” of such harm occurring in the reasonably foreseeable future, as distinct from a “remote chance”. It expressed its conclusion in relation to the fear of rioting:
In the light of the Tribunal’s finding that the events of 1998 were of a particular historical severity and that six years have passed during which there has been a virtual absence of anti‑Chinese rioting, the Tribunal finds there is no real chance that such events will re‑occur in the reasonable foreseeable future. The Tribunal therefore finds there is no real chance of harm to the applicant in the reasonably foreseeable future if she returns to Indonesia.
The Tribunal shows that it was aware of the applicant’s claims that she, in fact, had no real connection with Indonesia and that she had acquired her Indonesian passport and nationality under a mistaken impression as to the significance of this. It said:
The Tribunal accepts that the applicant had no idea that the actions of others in acquiring for her an Indonesian passport has meant that she has effectively put herself under the protection of the Indonesian Government. The Tribunal accepts that the applicant has no relationship to Indonesia, has no friends or acquaintances there, and does not speak the language.
However, the Tribunal’s role is limited to determining whether the applicant satisfies the criteria for the grant of a protection visa. Any consideration of her circumstances on humanitarian grounds is a matter solely within the Minister’s discretion.
I have considered the Tribunal’s procedures and reasoning and have been unable to identify jurisdictional error affecting its decision.
The applicant’s arguments to establish jurisdictional error are set out in an amended application filed on 23 February 2005, and the applicant made the same points in her oral submissions to me today. This document has not been prepared with the assistance of a lawyer, although it makes submissions of a legal nature.
The first contention made by the applicant is that the Tribunal was in breach of s.424A of the Migration Act because it did not serve a written invitation for comments upon her in relation to the general country information considered by the Tribunal. However, it is now well established that the exclusion in s.424A(3)(a) extends to such information (see Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572). The Tribunal was therefore not in breach of s.424A in relation to this information.
In relation to the information obtained from the applicant’s passport, as I have indicated above, this information was probably given by the applicant to the Tribunal at the hearing. It was therefore within the exclusion of s.424(3)(b) (see also SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 at [51]‑[52], [83], [173] and [264]) in relation to a comparable fact situation).
The applicant made further contentions criticising the Tribunal’s reference to country information. She claimed that the Tribunal had referred to out of date information; that it had overlooked the correct information; that it had wrongly preferred information adverse to her situation; and that she had not had a sufficient opportunity at the hearing to deal with the information which had been put to her by the Tribunal.
I am not satisfied that any of these criticisms is valid at a factual level. The Tribunal in fact does refer to recent information and, in my opinion, it has attempted to bring its knowledge of the situation in Indonesia up to date. On my reading of its discussion, I am not satisfied that it did not achieve a balanced consideration of the situation in Indonesia. In any event, the assessment of the factual situation was within the province of the Tribunal, and it is not part of my function to decide whether the Tribunal arrived at the correct assessment of the situation that the applicant will find herself in Indonesia.
As to whether the Tribunal fairly canvassed its general information with the applicant at the hearing, it is impossible for me to assess this in the absence of a transcript. In any event, I accept the submissions of the counsel for the Minister that the Tribunal was under no obligation to canvas that information with the applicant in any manner at all, by reason of the combined effects of s.424A and s.422B of the Migration Act.
The applicant’s further contentions criticised the Tribunal for not addressing her situation if she returned to China, arising from her claims to have experienced and to fear persecution on the ground of her membership of the Christian sect of Shouters.
It is true that the Tribunal did not at all assess those claims. However as I have indicated above, it was sufficient in my opinion for the Tribunal to find that it was not satisfied that the applicant had a well‑founded fear rendering her unable or unwilling to avail herself of the protection of the Indonesian Government.
The applicant maintained to me that her Indonesian passport was “false”, and that she still had a valid Chinese passport establishing Chinese nationality. She showed me a facsimile print‑out which she claimed showed a copy of pages taken from that passport, which was issued in 2003 and is due to expire in 2008.
On this evidence, it is impossible for me to form any conclusion myself as to her claims in relation to her nationality. Moreover, I do not consider it appropriate that I should expand this proceeding to allow that issue to be judicially determined. As I have indicated, a judicial determination of that issue does not arise in the course of reviewing whether the Tribunal’s decision was affected by jurisdictional error, since it is enough that I am not satisfied that the Tribunal made a jurisdictional error when reaching its opinion that the applicant could claim the protection of Indonesia. Any further issues concerning her nationality would, in my opinion, be better explored by the applicant with appropriate agencies of the Australian Government, the Indonesian Government and/or the Chinese Government.
For the above reasons, I have concluded that the Tribunal’s decision was not affected by jurisdictional error. The applicant is therefore not entitled to relief by way of writs of certiorari and mandamus directed at that decision. The Tribunal’s decision is a privative clause decision within s.474(1) of the Migration Act, and I must dismiss her application for judicial review.

I certify that the preceding thirty‑two (32) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 10 July 2006