NBKMA v Minister for Immigration
[2005] FMCA 695
•20 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBKMA v MINISTER FOR IMMIGRATION | [2005] FMCA 695 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal applied the correct test of persecution for Convention reasons – whether the Tribunal failed to deal with a claim or made an unreasonable finding without probative evidence. |
| Migration Act 1958 |
| Chan Yee Kin v Minister for Immigration & Local Government & Ethnic Affairs (1989) 169 CLR 379 SRBB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 79 ALD 723 Associated Provincial Picture Houses v Wednesbury Corporation (1948) 1 KB 223 |
| Applicant: | NBKMA |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 435 of 2003 |
| Judgment of: | Barnes FM |
| Hearing date: | 20 May 2005 |
| Delivered at: | Sydney |
| Delivered on: | 20 May 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Ms R Francois |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant pay the respondent's costs fixed in the amount of $4,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 435 of 2003
| NBKMA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 22 March 2000 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The applicant is a citizen of Indonesia who arrived in Australia in March 1999 and applied for a protection visa. He claimed to have a well-founded fear of persecution in Indonesia on the basis of his Chinese ethnicity and his Christian beliefs. In his protection visa application he claimed that ‘Indonesia under Habibie really trouble’ and that he was scared because people were killing each other and his shop had been burned down. He expressed a fear that he could be killed because the situation could become worse. The applicant claimed that Chinese people were suffering because they were perceived to be rich, that Christians were being attacked by Muslims, that the people were fighting one another and that the government could not protect him because it was corrupt.
The applicant did not provide any documents or other evidence in support of his claims. The application was refused by a delegate of the respondent. In the course of the delegate's decision a significant amount of country information about the situation in Indonesia was canvassed at some length, including information to the effect that the 1998 riots were a reaction to an economic downturn and directed at groups mistakenly perceived to be the cause of the downturn and which described changes in Indonesia in relation to protection of all Indonesian citizens, addressing discrimination against ethnic Chinese, improvements in security and addressing the situation of Christians in Indonesia as well as information as to the absence of systematic persecution against ethnic Chinese and Christians in Indonesia.
The applicant sought review by the Refugee Review Tribunal by application received on 28 October 1999. He provided a brief statement as to why he did not agree with the delegate's decision, referring to suffering of the Chinese and racism in Indonesia.
The Tribunal wrote to the applicant on 28 October 1999 acknowledging receipt of his application. It stressed that if he had any new documents or written evidence he should send them to the Tribunal at the earliest possible point in the review process. A copy of that letter was also sent to his migration agent.
The Tribunal again wrote to the applicant, on 4 January 2000, advising him that it had looked at all the material relating to his application but was not prepared to make a favourable decision on that information alone. It invited him to attend a hearing and to send any new documents or written arguments to the Tribunal that he would like the Tribunal to consider. The applicant attended a Tribunal hearing with the assistance of an Indonesian interpreter.
In its reasons for decision the Tribunal described the general claims made by the applicant in his protection visa application about the fears of the Chinese in Indonesia as well as his specific claims that his shop had been burned down and that he did not believe the authorities would provide protection as Indonesia was a corrupt country. It set out the claims made by the applicant that following riots in Jakarta in May 1998 rioting had spread to other places including the town where he lived.
He claimed that his property (being a shop on the ground floor of a building and his residential accommodation above) was damaged by fire and rioting on about 20 May 1998. He did not rebuild the business or attempt to reopen it because he feared it might suffer a similar fate once again. He described his time in Indonesia after the riots before coming to Australia, suggesting that he had experienced fear and that there had been a campaign of inciting panic that was deliberate and targeted Chinese.The Tribunal reasons are the only record of what occurred in the Tribunal hearing. The Tribunal recorded that in the hearing it put to the applicant information in relation to substantial changes that had occurred since that time. The applicant commented in response that he expected a similar situation of civil disturbance based on economic factors, such as occurred in late 1997 and late 1998, would recur given unemployment levels and that the government could not guarantee that Chinese would be safe. The Tribunal drew the applicant's attention to the substantial amount of independent evidence about the amelioration of conditions for Chinese Indonesians in the decision of the delegate. It asked the applicant if he had read and understood the material. It recorded his response that, in his view, many of the changes were ‘talk rather than practice’.
The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason. It accepted that he lost his cafe and upstairs residence in the riots across Indonesia in May 1998, that he was frightened by his experiences and the violence of the riot and that the anti-Chinese sentiment expressed by sections of the mob prompted his decision to leave Indonesia. It also accepted that many Chinese Indonesians had experienced incidents of racial discrimination. It noted however that the applicant made no such claims of racial discrimination and nor did the evidence suggest that he had experienced harm, let alone harm amounting to persecution for a Convention reason in the past.
The Tribunal went on to find, in effect, that there was effective state protection in Indonesia. It reviewed independent country information noting improvements in conditions for ethnic Chinese and the commitment of the government in providing protection. It had regard to the nature of the May 1998 riots (which it found to be a one-off culmination of particular social and political factors) and accepted that there were areas of conflict within Indonesia and that, as in the past, there may be situations where a Chinese Indonesian may meet injury or even death by being in the wrong place at the wrong time. It observed however that no state can ensure the complete safety of all its citizens and found that independent evidence indicated the Indonesian authorities act to restore order in situations of civil disturbance and take action against those who have committed criminal offences. In addition, on the basis of independent evidence pointed to ameliorating conditions for Sino-Indonesians since 1998, the Tribunal was satisfied that the Indonesian government was neither unwilling nor unable to protect its Chinese citizens. It was not satisfied that the applicant's fear of persecution for a Convention reason was well founded.
The applicant filed an application seeking review of the Tribunal decision on 14 January 2005. No issue was taken with the delay, as the respondent accepts that the applicant was involved in the Lie class action.
The applicant relies on an amended application filed in this court on
27 April 2005. It raises three grounds. The first ground is that the Tribunal constructively failed to exercise its jurisdiction and to afford the applicant natural justice in circumstances where the Tribunal applied the incorrect test of persecution for a Convention reason. The particulars of this claim are that the Tribunal accepted that the applicant lost his shop and residence during the May 1998 riots but did not agree that he suffered persecution for Convention reasons.The contention is that the Tribunal failed to properly apply the test of persecution under the Refugees Convention. The Tribunal was clearly aware of the correct test, which it summarised at the commencement of its decision. It recognised that while, as Mason CJ suggested in Chan Yee Kin v Minister for Immigration & Local Government & Ethnic Affairs (1989) 169 CLR 379, persecution requires some serious punishment or penalty or some significant detriment or disadvantage, at the same time (as McHugh J had pointed out in Chan) it involves selective harassment and in appropriate cases may include single acts of oppression, serious violations of human rights and measures in disregard of human dignity.
The question is whether, despite this correct summary of the principles, the Tribunal went on to apply the wrong test as contended by the applicant (see SRBB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 79 ALD 723 at 30 to 33). The Tribunal discussion of whether there had been past persecution is brief, but its findings must be read in the context of the whole of the Tribunal reasons for decision and in light of the evidence before it.
The only evidence of past harm before the Tribunal was the applicant's claim that his shop and residence was one of the buildings damaged by fire in rioting in May 1998. I note in that respect that in oral submissions today the applicant contended that he had been exposed to other incidents in Indonesia. However, there is nothing to suggest that any other incidents were put before the delegate or the Tribunal, either in writing or in the Tribunal hearing. From the Tribunal account of the applicant's claims (which is the only evidence of what occurred in the Tribunal hearing) there was no suggestion or evidence that the applicant's home had been specifically targeted. There was no evidence that the applicant or his family had experienced physical harm or that there was any impediment to the applicant re-building his home (other than his own fears) and the Tribunal made findings in relation to the reasons for and nature of the May 1998 riots as a one-off culmination of particular social and political factors (consistent with the applicant's acknowledgment in the hearing of the possibility of civil disturbance based on economic factors such as in late 1997 and early 1998). It is apparent that the Tribunal considered that the property had burned down as part of an incidental fire caused by the riots. The Tribunal also noted that there has been no systematic anti-Chinese action since the May riot, although there may have been isolated incidents. The applicant made no claim of having experienced any incident of racial discrimination.
It was in this context that the Tribunal did not accept that the applicant had experienced harm, let alone harm amounting to persecution for a Convention reason in the past. It had formed the view that the harm that he experienced (the house burning down) was incidental to the riots and the applicant made no claims himself and provided no evidence of having experienced any incidents of racial discrimination.
In those circumstances, in light of the correct statement of the law and the Tribunal’s recognition that a single act of oppression of sufficient seriousness may amount to past persecution, the findings that the Tribunal made were open to it on the material before it, albeit it may not be a conclusion which every decision-maker would have reached. In those circumstances it has not been established that the Tribunal failed to apply the correct test.
Moreover, significantly, the Tribunal went on to find that the applicant had no well-founded fear of persecution for a Convention reason in the future because of the changes in Indonesia and the availability of effective state protection. The findings in relation to effective state protection are not challenged by the applicant other than by way of disagreement with the merits of the Tribunal decision.
The second ground relied on in the amended application is that the Tribunal failed to deal with the applicant's ‘sur place’ claim of persecution by reason of his religious beliefs. The particulars are that the Tribunal rejected his claim of fear of persecution by reason of the election in 1999 of President Wahib who was ‘a defender of the Chinese minority’. The first difficulty with this ground is that the applicant did not make a claim that he had done any acts since leaving Indonesia that would cause him to be persecuted. Insofar as his protection visa application raises any claim based on Christianity it does so at best fairly indirectly. The Tribunal nonetheless considered the situation of Christians as well as ethnic Chinese in addressing issues of racial and religious persecution. Importantly it found that there was effective state protection as well as having regard to the changes in the new government's attitude to religion and ethnicity.
The third ground is that the Tribunal committed a jurisdictional error in circumstances where it unreasonably and without probative evidence found that the May 1998 riots “were a one-off culmination of particular social and political factors”. This claim was not elaborated upon.
It appears that the applicant raises a contention that the Tribunal statement in this respect fell within the principles of Wednesbury unreasonableness (see Associated Provincial Picture Houses v Wednesbury Corporation (1948) 1 KB 223).
The Tribunal statement followed its discussion of the anti-Chinese elements of the May 1998 riots, sentiments expressed by sections of the mob, the absence of systematic anti-Chinese actions since that time and riots in Indonesia. It noted that President Suharto was forced from office by the May 1998 riots and it is apparent from the statement that this indicated that it was a one-off culmination of particular social and political factors that it drew an inference about the quality of the May 1998 riots from the fact that the riots ultimately brought down a regime which had been in place for some considerable time.
In light of this information and the information in the delegate's decision to which the Tribunal referred, as well as the discussion with the applicant in the Tribunal hearing about the 1998 riots, the finding of the Tribunal in this respect was open to it. It cannot be said to be unreasonable in the Wednesbury sense or, indeed, otherwise.
At the commencement of the hearing the applicant handed up a written submission which responded to particular paragraphs of the respondent's written submissions. However to a large extent this statement takes issue with the merits of the Tribunal decision. Merits review is not available in this court.
The applicant also contended that he did not know what the Tribunal wanted or needed from him. He confirmed in his oral submission that if he knew that the Tribunal needed submissions or evidence he would have provided them. However it is clear from the material before the court that the Tribunal wrote to the applicant on two occasions inviting him to provide documents or written evidence and that in the hearing invitation letter it explained to him that it was not prepared to make a favourable decision on the information before it. It is for the applicant to put his claims before the Tribunal and his alleged lack of knowledge about the need to provide claims and material to the Tribunal does not establish any jurisdictional error.
He also contended that the Tribunal misunderstood the situation in Indonesia and parts of Indonesia and took issue with the reliance of the Tribunal on particular country information. However the applicant did not himself put contrary country information before the Tribunal (despite the reference in the delegate's decision to particular country information). In any event the weight to be given to particular country information is a matter for the Tribunal.
As I have indicated above, the applicant’s claim to have experienced other riots in Indonesia is not material that was before the delegate or the Tribunal. The Tribunal is not obliged to consider claims that are not before it or apparent on the material before it. His other claims take issue with the merits of the Tribunal decision. No jurisdictional error has been established and the application must be dismissed.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful. There is nothing to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent. The amount of $4,200 which is sought is appropriate in light of the nature of this and other similar matters.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 10 June 2005
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