Raharjo v Minister for Immigration and Multicultural Affairs

[2001] FCA 1726

Raharjo v Minister for Immigration and Multicultural Affairs [2001] FCA 1726
Immigration

Raharjo v Minister for Immigration and Multicultural Affairs [2001] FCA 1726

IMMIGRATION - application for a protection visa - whether no evidence upon which decision made - whether decision induced by actual bias - no case made out.

Migration Act 1958 (Cth)

Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 referred to

Minister for Immigration and Multicultural Affairs v Indatissa (2001) 64 ALD 1 referred to

FAJAR SUDI RAHARJO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1188 of 2001

CONTI J

5 DECEMBER 2001

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1188 OF 2001

BETWEEN:	FAJAR SUDI RAHARJO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	5 DECEMBER 2001
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 1188 OF 2001

BETWEEN:	FAJAR SUDI RAHARJO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	CONTI J
DATE:	5 DECEMBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Application for review

1       The application for review is brought against the decision of the Refugee Review Tribunal ("the Tribunal") made on 17 July 2001, whereby the Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa because as in the case of the delegate, the Tribunal expressed a dissatisfaction that the applicant was a refugee within the Convention definition. The hearing of the application had been originally fixed for 6 February 2002. However, at a directions hearing on 16 November 2001, which the applicant attended in person, I brought forward the hearing date to today, by reason of a gap which had emerged in my commitments. The applicant did not appear at the hearing and did not, so far as I am aware, communicate with the court in the meantime.

Factual background

2       The applicant is a citizen of Indonesia of Chinese ethnicity. He was born in Madiun in central Java on 25 December 1970. Both of the applicants' parents were born in Indonesia and continue to reside in Jakarta. He married a national of the Peoples' Republic of China in April 1990 with whom he has since has two sons. Each of the applicant's wife and two sons reside in the Peoples' Republic of China.

3        The circumstances giving rise to his claim for refugee status arise out of the discrimination directed towards Indo-Chinese persons in Indonesia. Of particular significance were the events that surrounded the well-known massacre of Indo-Chinese persons on 13 May 1998. On that occasion, many Chinese people were robbed and their properties burned. Even more unfortunate were the many instances involving the assault, rape or murder of Indo-Chinese women by native Indonesians.

4       Turning specifically to the applicant's own experience, he gave evidence before the Tribunal that 13 May 1998 was a deeply painful time in his life. He claimed that his shop was subjected to theft and vandalism on the part of several native Indonesians. Both his wife and his second son were said to have been physically assaulted by the Indonesian intruders. I interpolate here to mention that there was some conflict between the applicant's written and oral submissions as to whether it was his eldest or his second son that had been visiting him in Indonesia at the time and hence which son was assaulted by the Indonesian men. It was claimed that each of the applicant, his wife and his second son were forced by such native Indonesians to stand aside in their shop whilst they were to witness such men ransack and destroy the contents of their shop. As these men departed the shop the applicant claimed that he was hit on the head with a stone.

5       After the intruders left the shop, the applicant informed the Tribunal that he made contact with the police. He wrote a statement for them and upon various investigations being undertaken on their part, the applicant was informed by the police that they were unable to identify the culprits of the abovementioned crimes.

6       As a result of that event in the family shop, the applicant claimed that he and his family have been sick with worry about their safety and that his wife has since been too scared to walk the streets of Indonesia by herself. Accordingly, the applicant sent his wife and child back to China. He decided to adopt a rather different course in travelling to Australia.

7       When the matter was before the Tribunal, the applicant was asked why he did not return to China with his wife and child upon the unfolding of the abovementioned events. The applicant's response to this question was that he had to continue to run the shop in Jakarta and that business had to be attended to. In addition to this, the applicant stated that he could not go to China because he did not have a visa at the time. When the Tribunal pointed out to the applicant that he could have easily obtained a visa permit to enter China, the applicant replied that he never intended to remain in China other than temporarily and that he had too many things to do in Indonesia. The Tribunal then proceeded to point out to the applicant that if he had been genuinely fearful for his safety after the May riots, he would have left Indonesia for China with his family since he was clearly able to move in and out of China as he had done so on previous occasions.

The Tribunal's decision

8       After referring to various sources of independent information and considering the abovementioned evidence given by the applicant, the Tribunal expressed a lack of satisfaction with the applicant's claim that he had a well-founded fear of persecution for a Convention reason. The Tribunal did not accept the accuracy of the applicant's claim that his family had resided in Indonesia for many generations. Although there were some respects in which the applicant's evidence was conflicting or contradictory in relation to his wife and children, the Tribunal was satisfied that they are Chinese citizens and presently reside in China.

9       The Tribunal accepted that for many years, members of the ethnic Chinese population in Indonesia have been subjected to discrimination of varying degrees of severity. The Tribunal pointed out that the only instance that the applicant could point to where he was subjected to harm by reason of his ethnicity occurred during the May riots when he was hit on the head with a stone after his shop had been robbed and ransacked. The Tribunal concluded that despite the fact that the applicant may be fearful of there being further outbreaks of anti-Chinese activity in Indonesia, it was of the view that upon a close examination of the independent information, the Indonesia authorities are presently making a considerable effort to protect the lives and property of its ethnic Chinese minority, as well as to remove various discriminatory practices. The Tribunal then proceeded to make the more significant finding in relation to the question as to whether the applicant possessed a well-founded fear of persecution. It stated:

"I note that the applicant has been able to live in China for a considerable period of his life moving in and out of China freely and often. He has a wife and two children who are citizens of and residents in that country and his father holds a Chinese passport. I am therefore not satisfied that if the applicant held a genuine fear of persecution in Indonesia on account of his ethnicity, he would not have left Indonesia and returned to China to join his family after the May 1998 incident...

In essence, after careful examination I am not satisfied that the applicant has ever suffered persecution in Indonesia for a convention related (sic) and does not have a well-founded fear of so suffering in the reasonably foreseeable future."

The applicant's case for review before Court

10       The application for review was obviously not drafted by a legally qualified person. The applicant's case purportedly consists of two grounds. First, that the decision was induced or effected by actual bias, and secondly, that there was no evidence on other materials to justify the making of the decision. Neither ground disclosed any reasons why the Tribunal has committed such errors of law.

11       Turning to the first ground of the application, it is clear that the applicant must be able to demonstrate that the Tribunal member possessed a pre-existing state of mind which disabled her from undertaking or rendering her unwilling to undertake any or any proper evaluation of the materials before her which are relevant to the decision to be made: see Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 at 104 per French J. It suffices for me to say that there is nothing in the material before me which demonstrates that the Tribunal member so acted in undertaking her proper evaluation of the applicant's case.

12       In relation to what may be described as the no evidence ground of review, it has been stated in Minister for Immigration & Multicultural Affairs v Indatisa (2001) 64 ALD 1 at 5-6 [26] that in order to establish such ground, the applicant must demonstrate the following:

(i)       There was no evidence or other material to justify the making of the decision;

(ii)       The decision under review is based on the existence of a particular fact; and

(iii)       That fact did not exist.

13       It is quite clear that there was an abundance of evidence upon which the Tribunal proceeded to make its decision. It referred to various sources of independent information which demonstrated that protection was available from the country of nationality. Specific attention was drawn to efforts that have been recently undertaken by the Indonesian authorities to protect the lives and property of its ethnic Chinese population. Clearly it was open to the Tribunal to conclude from that information that any supposed subjective fear harboured on the part of the applicant was not well-founded. In addition to this, it was open for the Tribunal to consider whether the applicant had a well-founded fear of persecution in light of the fact that despite the attack on his shop during the May riots in 1998, he did not leave Indonesia to go to China with his wife and children. There was nothing before the Tribunal to demonstrate that the applicant was unable to leave Indonesia and return to China with his family. Instead, the Tribunal that the applicant was more concerned with the operation of his business rather than his own safety. Thus the Tribunal was perfectly entitled to conclude on the evidence that the applicant did not have a well-founded fear of persecution in light of these factors.

14       For these reasons, the application must be dismissed and I order that the applicant pay the costs of the respondent of the proceedings.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:        7 December 2001

#DATE 05:12:2001

Counsel for the Applicant:	No appearance
Counsel for the Respondent:	Mr J Smith
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	5 December 2001
Date of Judgment:	5 December 2001