Purwatan v MIMA

[2000] FCA 967

FEDERAL COURT OF AUSTRALIA

Purwatan v MIMA [2000] FCA 967

MIGRATION – Migration Act 1958 (Cth) s 476 – actual bias

Migration Act 1958 (Cth) s 476

SUWARTI PURWATAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 325 of 2000

BRANSON J

SYDNEY
11 JULY 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 325 of 2000

BETWEEN:	SUWARTI PURWATAN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	BRANSON J
DATE OF ORDER:	11 JULY 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The decision of the Refugee Review Tribunal be affirmed.

2.        The applicant pay the costs of the respondent.

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 325 of 2000

BETWEEN:	SUWARTI PURWATAN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	BRANSON J
DATE:	11 JULY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an application for a review of a decision of the Refugee Review Tribunal (“the Tribunal”), dated 8 March 2000.  The Tribunal affirmed the decision of a delegate of the Minister to refuse to grant Ms Purwatan a protection visa.  Ms Purwatan has claimed that she fears persecution should she return to her country of nationality, Indonesia, for reasons of her religion and her race.  Ms Purwatan is a Christian Chinese Indonesian.  Ms Purwatan has appeared today without legal representation.

2. Although she has had the assistance of a migration agent generally, Ms Purwatan has advised me that the migration agent has not provided her with any help in her preparations for this hearing.  It is regrettably plain that Ms Purwatan came to the Court with no real understanding of the role of the Court.  I have decided that the decision of the Tribunal must be affirmed for the reasons given below.

3. The application for review in this matter identified two grounds of review.  The first is that the decision of the tribunal was induced or affected by actual bias.  The second is that there was no evidence or other material to justify the making of the decision.

4. As to the first of the grounds of review, it is apparent that Ms Purwatan came to Court today with no understanding of the meaning of the expression “actual bias”.  When I explained the meaning of the expression to her, Ms Purwatan indicated that she had no reason to think that the tribunal member had pre-judged her case.  Nor did she have any reason to think that the Tribunal member was not able to bring an open mind to her application for a protection visa in the sense that the Tribunal member was prejudiced against the applicant or her case.  There is nothing in the material before me which suggests that the decision of the Tribunal was induced or affected by actual bias.  It is not necessary for me to give further consideration to this ground.

5. Ms Purwatan was also unable to say anything in support of the ground that there was no evidence or other material to justify the making of the Tribunal’s decision.  It is plain that Ms Purwatan in reality seeks a review on the merits of the decision of the Tribunal that she not be granted a protection visa.  The Court has no power to undertake such a review on the merits.

6. Nonetheless, as Ms Purwatan is unrepresented, it is appropriate for me to review the decision of the Tribunal.

7. The Tribunal was not satisfied that Ms Purwatan has a well founded fear of persecution in Indonesia for reason of her religion.  It found that Ms Purwatan has lived the past 20 years or so in Jakarta.  The Tribunal noted that Ms Purwatan did not claim that she had ever been prevented from attending church or worshipping as she wished.  It also found that there was no evidence before the Tribunal that in the Jakarta riots of 1999, Christians were singled out.  It noted independent evidence that the new President of Indonesia is genuinely committed to ending sectarian violence and to creating a society of tolerance and mutual respect.  It found that the Indonesian Government will protect Ms Purwatan from being persecuted, should she wish to practice her religion, upon her return to Indonesia.

8. The Tribunal found that there is no real chance that Ms Purwatan will be harmed in Indonesia in the course of practising her faith.  This finding is, I consider, to be understood as incorporating a finding that there is no real chance that Ms Purwatan will be harmed in Indonesia because of her Christian religion.

9. As to Ms Purwatan’s claim that she has a well founded fear of persecution by reason of her race, the Tribunal accepted that Ms Purwatan experienced racial harassment at school.  Ms Purwatan has told me that she was at high school during the 1970s.  The Tribunal also accepted that Chinese Indonesians are often the target of verbal abuse, and that they experience certain restrictions in education and employment, particularly in the public sector.  However, it noted the ready availability of private education and private employment.

10. The Tribunal accepted that rioting in Indonesia is fuelled by racial hatred.  It also accepted that Chinese Indonesians might suffer harm if caught up in sporadic rioting.  However, the Tribunal found that in the light of the evidence as to the current nature and extent of rioting, the chance of any individual Chinese Indonesian, such as Ms Purwatan, being harmed in a riot is remote.  The Tribunal further found that state protection against incidents of civil disturbances would be available to Ms Purwatan in Indonesia.

11. On the above bases, the Tribunal recorded that it was not satisfied that Ms Purwatan is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. I am not able to identify any ground under s 476 of the Migration Act 1958 (Cth) upon which the decision of the Tribunal could be set aside. In particular, I note that there was evidence and other materials before the Tribunal to justify each of the findings which led to its decision.

12. The decision of the Tribunal must be affirmed.  I so order.

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

Associate:

Dated:   19 July 2000

Ms Purwatan appeared for herself
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	11 July 2000
Date of Judgment:	11 July 2000