S1266 of 2003 v Minister for Immigration
[2006] FMCA 335
•28 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1266 of 2003 v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 335 |
| MIGRATION — Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of Indonesia – claim of fear of persecution because of Chinese ethnicity and Christian religion – delay. |
Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) s.424
Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1
Re Minister for Immigration & Multicultural Affairs: Ex parte Miah (2001) 206 CLR 57
Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225
| Applicant: | APPLICANTS S1266 of 2003 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 890 of 2004 |
| Delivered on: | 28 February 2006 |
| Delivered at: | Sydney |
| Hearing date: | 28 February 2006 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr Smith |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Leave to join Refugee Review Tribunal as a party.
The Refugee Review Tribunal is joined as Second Respondent to the Application.
The Application is dismissed.
The First and Second Applicants are to pay the First Respondent’s costs fixed in the sum of $5,500.00.
I allow twelve (12) months to pay.
I RECOMMEND THAT the Minister consider exercising discretion to substitute a more favorable decision than the decision of the Refugee Review Tribunal.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 890 of 2004
| APPLICANTS S1266 of 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal. The Tribunal made its decision on 12th January 2000. The Refugee Review Tribunal handed down its decision that same day. The decision of the Tribunal was to affirm a decision of the Delegate of the Minister for Immigration & Multicultural Affairs not to grant a protection visa to the Applicants.
Background
The Applicants are citizens of the Republic of Indonesia. They are a husband and wife, and they arrived in Australia with their two children on 9th August 1998. They have since become the parents of a third child who was born in Australia. The children live with their parents and attend school.
The Applicants applied for protection visas on 4th September 1998 which were refused on 22nd October 1998. They applied to the Refugee Review Tribunal for a review of that decision on 17th November 1998, and attended at the hearing of the Tribunal on 8th December 1999. The Applicant father gave oral evidence in support of the application.
On 12th January 2000 the Refugee Review Tribunal affirmed the decision of the Minister's delegate not to grant protection visas. The basis of the Applicants' claim is that they have a fear of persecution on the basis of their Chinese ethnicity and their Catholic religion. Their claim arises specifically as a result of serious riots which occurred in Indonesia between the 13th and 15th May 1998. Whilst there had been trouble on previous occasions the 1998 riots according to the Applicants were far more serious. They were not sporadic, nor were they unsystematic. They extended over a large part of the Indonesian archipelago including Jakarta. A number of Chinese people were killed, or ethnic Chinese were in danger, as the Applicant said, and numerous business premises and houses were destroyed, looted or burnt down. The Applicant said that the Indonesian Armed Forces were unable to control the situation and in some cases were not willing to do so. There was even some evidence that in certain areas the riots had been instigated by the military.
The Applicant father gave evidence that he owned two salons, one of which was in Jakarta and that was looted and burnt down. They continued to work in Bandung but left after three months. They arranged to sell the remaining salon, and the Applicant had already sold a collection of motor cycles to raise money to travel to Australia. He told the Tribunal then, just as he told the Court today, that the principle reason why he left was to provide safety and security for himself and his family.
The Tribunal’s findings and reasons
The Tribunal considered Independent Country Information and handed down a decision on 12th January. The Tribunal accepted that the Indonesian Armed Forces may have been responsible for human rights violations of Indonesian citizens which has amounted to persecution, but was not satisfied that the Armed Forces would take revenge on the Applicant father because of actions by his father. The Tribunal accepted the fact that the Applicants were ethnically Chinese, but noted that they have given evidence of having had a good life and had been reasonably successful financially until the riots. The Tribunal noted that the family business in Jakarta was looted and destroyed, but said that this occurred in the context of the breakdown of law and order and widespread rioting, which affected many businesses in Jakarta, and was not satisfied that it had occurred because the business was owned by a Chinese family.
In a rather telling passage at page 99 of the Court Book, the Tribunal Member said:
However, it was apparent during the hearing that the Applicant is very distressed and fearful about the situation he faces as an ethnic Chinese person if he returns to Indonesia, and that he is also fearful for the safety of his wife and children. He characterised this as having no peace there and argued that riots involving violence against ethnic Chinese could occur again.
The Tribunal Member went on to accept that the Applicant was genuinely fearful about unrest and riots.
The Tribunal was not satisfied on the basis of the independent evidence and on the basis of the Applicant father's evidence that the fear of persecutory treatment because of race was well founded. That was based on evidence that only a small percentage of the country's 5 million or so ethnic Chinese were actually harmed during the riots, and that there have been significant changes in Indonesia since the Applicants left Indonesia. Also the country's then political leadership, which was new, is clearly determined to promote racial as well as religious and political tolerance, which appears to have the support of a substantial proportion of the population.
The Tribunal also accepted that the Applicants were of the Christian religion and of the Catholic faith, but was not satisfied that Muslims in Indonesia did not allow other religions to be practised and noted that Catholicism is one of the four constitutionally recognised religions in Indonesia. The Tribunal was not satisfied that the Applicant father had suffered any harm of sufficient seriousness to amount to persecution because of his religion. In short, the Tribunal was not satisfied that the Applicants’ fear of convention-based persecution was well founded. The Tribunal noted that no separate or specific Convention claims were made on behalf of the other Applicants. The Tribunal was not satisfied that the Applicant satisfied the criterion set out in sub-s.36(2) of the Act for a protection visa, and affirmed the decision not to grant a visa.
Delay
The Applicant initially commenced proceedings by joining a class action in the High Court of Australia under the title Lie v The Refugee Review Tribunal & Ors. The Applicants were added as plaintiffs about 19th September 2001. When those proceedings came to an end, insofar as the Applicants were concerned in 2004, the proceedings came to this Court and have proceeded ever since. The significance of this is that the lawyers for the Respondent Minister have raised the issue of delay. This issue of delay occurs not since the Applicants joined the Lie class action, but from the period between the handing down of the decision in January 2000, and the Applicants joining the class action in September 2001, a period of approximately 18 months. Until today there had been no explanation given as to why this delay took place.
The Applicant father told the Court today that as a result of the unfavourable decision by the Refugee Review Tribunal he and his wife were upset and confused. They sought advice about applying to the Federal Court for review, as that was the Court that had jurisdiction at that time, but were told that it was too expensive. He told the Court that they went to several migration agents but were dissatisfied with the advice or the lack of advice that they received from three of them, and indeed took the view that the second and third migration agents had lied to them. It was not until they went to a fourth agent that they were directed to the solicitors conducting the Lie class action which they joined on 19th September 2001.
The Respondent does not complain of any delay on the part of the Applicants since they joined the Lie class action. I will deal with the question of delay at this stage. It is well known that delay can be a reason for a Court declining to grant relief on discretionary grounds, even if the Court is otherwise satisfied that a decision is tainted by jurisdictional error. There are numerous authorities to that effect, including the Commonwealth of Australia Ex Parte Marks where McHugh J held that the unexplained delay in excess of 12 months would be sufficient to justify a Court in declining to grant relief.
I have considered the question of delay on a discretionary basis. The explanation given by the First Applicant today was the first explanation given in these proceedings. It is surprising, as counsel for the Respondent pointed out, that the delay had not been explained earlier, especially as the Applicants had previously been legally represented.
It was not therefore possible for the lawyers for the Minister to make any submission other than that the delay of some 18 months was unexplained until they heard the explanation given by the First Applicant today.
Noting the length of the delay, which is some 18 months, noting when it occurred, and noting the explanation given by the First Applicant, notwithstanding the fact that it is not evidence given on oath, or supported by any corroborative evidence, I am still of the view that if, and I emphasise the word if, I were satisfied that jurisdictional error had been made out, I would not be inclined, or I would not have been inclined to refuse relief on a discretionary basis. There are many cases before the Court where the most extraordinary amount of delay appears with no explanation at all. Whilst this is a delay of over 18 months it is to my mind somewhat understandable and it is not unknown in this Court for Applicants to receive less than satisfactory advice from various migration agents. I would point out, however, that this is a side issue, because what really needs to be considered is whether or not the applicants have made out a case that there has been a jurisdictional error on the part of the Tribunal. That indeed is a far harder task.
Application for judicial review
The application was filed on 25th March 2004 at the time when the Applicants were legally represented. There is quoted a ground that the Tribunal constructively failed to exercise its jurisdiction with four separate heads of particulars.
i)The Tribunal failed to make a finding that it had an obligation to make;
ii)That the Tribunal misinterpreted the applicable law, or misapplied the law of the facts;
iii)That the Tribunal failed to ask itself a question that it was required to ask; and
iv)That the Tribunal failed to put to the First Applicant country information that was adverse to the First Applicant and upon which it relied for its decision.
The first of those particulars is illustrated by the claim that the Tribunal failed to make a finding in relation to whether or not the reason that the First Applicant's business was destroyed in the context of the breakdown of law and order and widespread rioting, was because of his Chinese ethnicity and/or religion. The Applicant says that the Tribunal merely made a finding that the business was destroyed during a breakdown of law and order and widespread rioting.
The Respondents, however, argued that the Applicants have misconceived the Tribunal's finding. The Tribunal at Court Book page 99 found that the business in Jakarta was looted and destroyed in the riots, and that this occurred in the context of the breakdown of law and order, but was not satisfied that it occurred because the business was owned by a Chinese family. The Respondent submits, and I think correctly, that the Tribunal considered and dealt with the possible reasons for the loss of the business, and noted that the Applicant claimed that the damage was caused by violence directed towards the business because it was owned by a Chinese family. The Tribunal has considered that claim but rejected it.
Turning to the ground that the Tribunal misinterpreted the applicable law or misapplied the law of facts, the Applicants claim that the Tribunal found that the loss of their business did not constitute persecution when the loss of earning a livelihood can constitute persecution, but rather limited the question of persecution and physical harm which was incorrect.
Second, they claim that in determining whether or not the Applicants have a well founded fear of persecution for reason of race, the Tribunal required that more than a small percentage of ethnic Chinese be harmed when there was no such requirement in law. The Respondents say that this argument is misconceived. The Tribunal did accept that the Applicant's business had been destroyed in the riots, but found that the reason for that destruction was not a convention reason, namely the reason of ethnicity. The Tribunal then found that the Applicant had not suffered persecution prior to his departure from Indonesia. Serious harm does not amount to persecution of a convention sense if it is not for reasons of one of the matters set out in Article 1A (2) of the Convention. (See Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 at page 233). The Respondents submit that the Tribunal did not limit its understanding of persecution of physical harm but only to harm if it inflicted for a Convention reason.
The Respondents also submit that it is a misunderstanding of the Tribunal's decision to say that more than a small percentage of ethnic Chinese would need to be harmed for there to be a well founded fear of persecution. The Tribunal had concluded at page 100 of the Court Book that the Applicants' fear of persecution because of their race was not well founded. The Tribunal gave three reasons. One, only a very small number of Chinese was actually harmed during the riots. The Applicants were not harmed. The Applicants' siblings have not suffered any difficulty since, and there were significant changes in Indonesia since the Applicants have left and the countries political leadership at that time supported the question of religious and racial tolerance and that had the support of the population. In other words, the reference to small number of Chinese who are actually harmed was no more than a factor used in assessing the probability of harm to the Applicants in the future. It must follow that that ground will fail.
The third ground, or third particulars, related to whether or not the Applicants would be afforded protection from persecution for reason of their Chinese ethnicity. The Applicants claim the Tribunal failed to ask that, but asked whether or not Indonesia's new political leadership at the time was determined to promote racial tolerance, and whether it appeared to have the support of a substantial proportion of the population.
What the Tribunal did find was even if there were a further riot it would be no more than speculation that ethnic Chinese might be its target because of their race, and even if they were the chance was remote that the Applicants may face serious harm during it. It was therefore not necessary for the Tribunal to consider whether protection may be withheld from the Applicants for reason of their ethnicity. That question only arises where the Tribunal finds that there is a well founded fear of harm at the hands of private agents. I am referred to the decision of Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1. Because the Tribunal found that the Applicants did not face a real chance of harm it was not required to consider whether protection against that harm would or would not be withheld, and whether the reason for that being withheld was one of convention reasons.
The fourth particulars as described by the Respondents' counsel is a denial of natural justice ground in that the Tribunal did not provide 15 reports which were referred to by the Tribunal in its decision. The rules of natural justice do not require that that material should be given to the Tribunal. The basic principle with respect to procedural fairness is that a person should have an opportunity to put their case and meet the case that is put against them. (See Re Minister for Immigration & Multicultural Affairs: Ex parte Miah (2001) 206 CLR 57 at page 86.) It does not mean that all material which comes before the decision maker must be disclosed, but an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. (See Kioa v West (1985) 159 CLR 550 at page 629.) A decision maker is not required to disclose information that is already obvious.
The Tribunal did note that there had been from the background information official and unofficial discrimination against ethnic Chinese in Indonesia over many years. This information was not adverse to the Applicants. In fact, it supported their claims. It did not have to be disclosed if it supported their claims, only if it was an adverse reason the Tribunal relied on it to affirm the decision.
The Tribunal also referred to the fact that a small percentage of the country's 5 million or so ethnic Chinese were actually harmed during the riots. The Applicant would have been aware if there were about five million Chinese in Indonesia, and the balance the Respondent submits was an assessment by the Tribunal as to the number of ethnic Chinese Indonesians who were actually during those riots, and that information came from a number of sources including information provided by the Applicants.
The Tribunal is not obliged to disclose its thinking process or analysis of information. The information that there have been significant changes in Indonesia since the Applicant had left this country was in fact put by the Tribunal to the Applicant at page 88 of the Court Book, and I quote:
I asked him to comment on the evidence that there had been some apparently significant improvements in the political and social situation on Java since his departure, including the recent election of a reportedly tolerant and moderate leadership would had the support of many ethnic Chinese in Indonesia and the absence of reports that there had been rioting on Java during 1999 which could be characterised as anti Chinese. The situation appeared to have settled down.
The Tribunal noted the Applicant actually replied to that, so he can hardly be said to have been denied an opportunity to address the information.
The Tribunal had also put to the Applicant the determination of the country's then political leadership to promote racial and religious tolerance with the support of the population. That had been put to the Applicants during the hearing. The fact that Catholicism is one of the four constitutionally recognised religions in Indonesia comes from a publication which the Applicant said he was not given an opportunity to comment on, and as the Respondent submits it could hardly come as a surprise to the Applicant that his own religion was constitutionally recognised.
The Tribunal noted that there was no evidence that in Bandung where the Applicants had lived that people were facing harassment or discrimination of such severity to be characterised as persecution. The Applicants have not claimed that. And that is not something that the Tribunal was obliged to disclose to the Applicants as it would be something of which they would be aware. The Applicants would have been aware that the new President of Indonesia was motivated to protect the rights of religious minorities and had been elected with a considerable amount of support. The Applicant was given opportunity to address the information that was put, had it was used by the Tribunal not to support his application.
The Applicant raised the question that some of the information relied on the Tribunal was in fact quite old dating back to 1994 and that much of it predated the disastrous riots in May 1998 of which the Applicant specifically complained. That is so but the Tribunal relied not just on pre-riot information but on information going up to and including the riots, and on matters which had occurred since the riots. It is put by the Respondents' counsel, and in my view with some force, that the disastrous riots in May 1998 did not happen in a vacuum and it was necessary for the Tribunal to consider the background to those riots in order to assess the questions of persecution and whether the Applicants had a well founded fear of persecution in the future for a convention reason.
The unfortunate fact for the Applicants is that the Tribunal has considered their convention-based claims and has not been satisfied that those claims are sufficient. It should be made clear that a Court conducting a judicial review of a decision of an administrative decision maker does not re-hear the application on its merits. In other words, it does not reconsider the facts and substitute its own decision based on its own assessment of the facts. The Court does not have the power to do so.
Certainly the Applicants would have reason for believing that based on the severity of the riots in Indonesia in May 1998 that the Tribunal's decision on the facts was perhaps a hard one. As I said, the Court does not have the power to substitute its own view of the facts.
Conclusion
The Applicants have been in Australia since 1998. They have now three children, a third child having been born in Australia. Their children are all at school. They speak English at home and have attempted to become part of the Australian community and appear to be good parents with a strong concern for their children's future. It is noteworthy that the Tribunal was of the view that the Applicant father who gave evidence did have a subjective fear of further riots in the future, a fear for himself and for the safety of his family.
Whilst the Tribunal was not satisfied that the Applicants have a well founded fear for a Convention reason the decision does show that the Applicants have, or at least the Applicant father, and presumably the mother, have a subjective fear of what could happen to them if they were to return to Indonesia. The father gave evidence that he believed that under Indonesian law his residence or citizenship status would not be recognised because he had been out of the country without explanation for more than five years. That is not a matter upon which I can rule because it is established that evidence as to the law of another country must be given in affidavit form, and must be proved like any other fact. That it may well be the case but I cannot rule on it either way. If the Applicants hold that view that may well support a subjective fear.
It is hard not to have sympathy for the Applicants. Whilst at law I am satisfied that no jurisdictional error has been out, and therefore the application must be dismissed, this is one case where I am of a view that at the conclusion of legal proceedings, and I am mindful of the fact that the Applicants have a right to appeal against this decision, that they should give serious consideration to an application to the Minister for the exercise of discretion under s.417 of the Migration Act in order to substitute a more favourable decision than that of the Tribunal.
I would make it clear that that is something that the Applicants would need to consider once following the legal avenues which they are entitled to follow.
I propose to make a recommendation that the Minister should give such a consideration, but that is no more than a recommendation because such a decision is entirely the decision of the Minister. It may well be that the Applicants should obtain legal advice, certainly if they wish to contemplate any appeal against this decision to the Federal Court.
It is for those reasons that I make the following orders: First, that the application is dismissed; and second, that the First and Second Applicants, who are the adult Applicants, are to pay the First Respondents' costs.
There is an application for costs. The amount sought is $6,000.00. It is pointed out to me that there have been several Court appearances, more than the usual, and the application being prepared for the benefit of legal advice required more consideration than usual. It is a matter where it is appropriate to make an order for costs. The amount of $6,000.00 is perhaps a little on the high side. I will allow $5,500.00. I note that the Applicants are not working, and I propose in the circumstances to allow 12 months to pay.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 8 March 2006
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