S14/2002 v Refugee Review Tribunal

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FEDERAL COURT OF AUSTRALIA
S14/2002 v Refugee Review Tribunal [2004] FCAFC 171

MIGRATION – whether Tribunal failed to consider substance of claims – whether Tribunal failed to distinguish between the Indonesian National Army and the Indonesian authorities.

ADMINISTRATIVE LAW – construction of reasons for decision – whether the accidental omission of the word ‘not’ in Tribunal’s reasons sufficiently clear for the relevant sentence to be construed as if that word appeared in it. 

PRACTICE & PROCEDURE – application for order nisi remitted to Federal Court of Australia – application (amended with leave) expressly claimed constitutional writs in terms of orders absolute – proceedings at first instance conducted as if applications for orders absolute – judgment given on that basis – whether leave required.

Migration Act 1958 (Cth)

NAHQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 297 distinguished
Long v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 218 referred to
Wu Shan Liang v Minister for Immigration and Multicultural and Indigenous Affairs (1996) 185 CLR 259 referred to
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 referred to

S14/2002 v REFUGEE REVIEW TRIBUNAL, MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N1826 of 2003

CARR, TAMBERLIN & LANDER JJ
2 JULY 2004
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N1826 OF 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

S14/2002
Appellant

AND:

REFUGEE REVIEW TRIBUNAL
First Respondent

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Second Respondent

JUDGES:

CARR, TAMBERLIN & LANDER JJ

DATE OF ORDER:

2 JULY 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the second respondent’s costs of the appeal.

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

N1826 OF 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

S14/2002
Appellant

AND:

REFUGEE REVIEW TRIBUNAL
First Respondent

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Second Respondent

JUDGE:

CARR, TAMBERLIN & LANDER JJ

DATE:

2 JULY 2004

PLACE:

SYDNEY

REASONS FOR JUDGMENT

CARR J:

INTRODUCTION

  1. This is an appeal from a judgment, delivered by a judge of this court on 22 October 2003, dismissing the appellant’s application for constitutional writs of certiorari and mandamus and associated declaratory relief in relation to a decision of the Refugee Review Tribunal made on 24 August 2001. The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) to refuse to grant the appellant a Protection Class (Class XA) Visa under the Migration Act 1958 (Cth) (“the Act”).

  2. The matter was remitted to the Federal Court from the High Court pursuant to s 44(1) of the Judiciary Act 1903 (Cth) by an order made by Gaudron J on 6 February 2003. I consider,…

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Details
Case
[2004] FCAFC 171
Decision Date

CaseChat Overview and Summary

The case of S14/2002 v Refugee Review Tribunal involves an Indonesian national who arrived in Australia on a business visa and applied for a protection visa, claiming that he was being persecuted by the Indonesian military due to his involvement with a humanitarian organisation in Aceh. The Refugee Review Tribunal rejected his application, finding his claims implausible and his motivation for leaving Indonesia to be different from what he had claimed. The matter was remitted to the Federal Court from the High Court for further consideration. The primary legal issue before the court was whether the Tribunal's decision to reject the applicant's claims was legally sound and supported by the evidence presented. The court examined the credibility of the applicant's claims, the plausibility of his explanations, and whether the Tribunal had correctly applied the relevant legal principles in reaching its decision.

In its reasoning, the court considered the applicant's claims in detail and assessed the plausibility of his explanations. The court found that the applicant's claims were inconsistent and that his actions did not align with the level of fear he claimed to have. The court also noted that the applicant had lived in Jakarta for twelve years and was educated to a tertiary level, which undermined his claim that he was unaware of alternative routes and means to leave Indonesia. The court held that the Tribunal's decision was supported by the evidence and that the applicant had not established that he was a person to whom Australia had protection obligations under the Refugee Convention. Accordingly, the court dismissed the appeal and ordered the applicant to pay the respondent's costs of the appeal.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the second respondent’s costs of the appeal.

Background

Background to the litigation

The matter was remitted to the Federal Court from the High Court pursuant to s 44(1) of the Judiciary Act 1903 (Cth) by an order made by Gaudron J on 6 February 2003. I consider, later in these reasons, whether the appellant needs leave to appeal. As may be apparent from my description of him I do not think that he does – given the particular circumstances of this matter. FACTUAL AND PROCEDURAL BACKGROUND The appellant arrived in Australia on 7 January 2001 on a business visa. On 5 February 2001, he lodged an application for the protection visa. On 26 February 2001 a delegate of the Minister refused to grant the visa. On 23 March 2001, the appellant applied for a review of that decision by the Tribunal. The criterion for the grant of such a visa is, subject to subdivision AL of Division 3 of Part 2 of the Act, that an applicant be a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees of 28 July 1951 as amended by the Protocol Relating to the Status of Refugees of 31 January 1967 (“the Convention”). The following description of the facts and the Tribunal’s reasoning is taken largely from the learned primary judge’s reasons. In his application, the appellant stated that he was born on 27 December 1967 in Jakarta, Indonesia, although the accompanying submission said he was born in the village of Lingkok, Kecamatan Mutiara in Aceh. In Aceh, according to the submission, the appellant was known by a different name (“the Aceh name”), which was his true identity. The name he had used throughout the Protection visa application process was an alias (“the Jakarta name”). At the hearing the appellant produced an Indonesian identity card listing the appellant’s Aceh name, his date of birth as 5 November 1967, and his birthplace as Pidie, Aceh. The appellant’s Indonesian passport is in his Jakarta name. The appellant went to Jakarta to study at Universita Muhammadiyah (enrolling in his Aceh name). In 1996 he gained a Bachelor of Engineering degree. The appellant lived in Jakarta from 1986 to 1998 (although some documentation suggests he arrived in 1991), when he returned to Aceh, which at that time was safe. He lived there until 2000. The appellant’s claims for entitlement to a Protection visa were as follows: The Indonesian military (Tentara Nasional Indonesia (“TNI”)) were looking for him due to his association with a humanitarian organisation (“the Organisation”), which he had helped to set up and of which he was the fund raiser. The purpose of the Organisation was to help those of the Free Aceh Movement (“GAM”) activists who were seeking refuge from the TNI. The appellant’s two main claims were that: several of the members of the Organisation were kidnapped in 1999 by BRIMOB (special forces of the Indonesian Police/anti-riot police, Police Mobile Brigade (Brigade Mobile, Brimob)); and in August 1999 his brother went to Medan on Sumatra with letters asking for financial support for the refugees where he was arrested and never returned.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

At the hearing before the Tribunal the applicant said that he would not be safe in Jakarta or Aceh. He said he would not feel safe in Jakarta because when he was in Jakarta his brother had been kidnapped in Medan. There had been an explosion at a place where he had been living in Jakarta and he had reason to believe Acehnese people in Jakarta had been taken away. He said he had been told by a friend who had attended a meeting held by an Acehnese leader in Australia that since Megawati Soekarnoputri had come to power many Acehnese in the Pasai Ming Gel area of Jakarta had been taken away. THE TRIBUNAL’S DECISION It is convenient to set out the following passages from the Tribunal’s reasoning. I have numbered the paragraphs to facilitate particular references to the reasoning: ‘1.The Applicant has claimed that he became involved in the conflict in Aceh only when a number of displaced people moved to his area. 2.His involvement, according to his account, was solely a humanitarian one. 3.However, he claims to have become of interest to the authorities after two workers were “kidnapped” by an arm of the Indonesian military (ABRI) and never returned and he heard that one of his brothers was arrested in Medan in Sumatra when he was going there to solicit donations for the refugees. 4.I accept that these events are plausible. 5.However, there are matters that give me cause for concern in regard to his claims that the Indonesian authorities were interested in him. 6.He claimed that the authorities had gone looking for him, and when he wasn’t found had threatened to kill his wife. 7.I find it implausible that she would choose to remain in Aceh knowing that this threat could be carried out, if in fact it was made. 8.I do not accept his explanation that she didn’t want to travel because of her pregnant state. I am of the opinion that she wouldn’t have been aware that she was pregnant at that time given that she delivered the child a little over nine months later. 9.However, even if I am wrong and she had become aware that she was pregnant the pregnancy at that stage would have posed no impediment to her leaving, which I believe she would have done if the authorities had threatened to kill her as the Applicant claimed. 10.I also find it implausible that he would have escaped from the area by driving a truck. Since the area, by his account, had become of security concern. 11.He claimed that shortly after arriving in Jakarta he had sought the assistance of KONTRAS, an agency responsible for disappearances and victims of torture.12.However, according to his account he struck up a conversation with two other unidentified people in the waiting area, and without finding out whether or not they were KONTRAS officers took their advice and began to plan leaving the country. 13.Even if I accepted that, and I do not, I find that the passport which he obtained was issued in October and a business visa was granted by the Australian Embassy shortly afterwards. 14.If, as he claimed, he was fearful of being caught I am of the opinion that he would have left the country as quickly as he possibly could, using whatever means or route was available, and as soon as possible after the passport and visa were issue [sic]. 15.However, it was almost three months after the issue of the passport and visa that he left. 16.He claimed that this was because he was unable to obtain a seat on Indonesia’s national airline Garuda. 17.When I put to him that I found this implausible he said that this was what was offered to him by an agent and he accepted it. 18.I find this implausible and in doing so have taken into account that the Applicant is no stranger to Jakarta having lived there for twelve consecutive years. 19.He is not an ignorant man. He is educated to tertiary level. 20.This being the case, I am of the opinion that if he held the fear he claims he would have sought any means and any route to leave Indonesia once he had the passport and visa. 21.I find his efforts to obtain an extension of his ID in November 2000 in the name he claims the authorities were looking for further indicates that he was not of interest to them, and I am of the opinion that he held no fear in that regard. 22.I find his explanation that he would be in trouble if the authorities found him with a false ID is implausible when the comparative claimed risk of finding him in his actual identity is taken into consideration. 23.I find that he extended his ID as is normal every three years because it was due for renewal and he was aware that he was not of concern. 24.These aspects of his claims lead me to conclude that the Applicant was not of interest to the authorities as he has claimed and his motivation for leaving Indonesia is other than what he has claimed.’

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.