S1548 of 2003 v Minister for Immigration
[2005] FMCA 1281
•7 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1548 OF 2003 v MINISTER FOR IMMIGRATION | [2005] FMCA 1281 |
| MIGRATION – Refugee – discretionary relief – delay – state protection. |
Federal Magistrates Court Rules 2001, rule 21.02(2)(a)
| SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | APPLICANT S1548 OF 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1843 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 5 September 2005 |
| Date of Last Submission: | 31 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 7 September 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr. A. Markus |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Refugee Review Tribunal to be joined as second respondent to these proceedings.
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1843 of 2004
| APPLICANT S1548 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application filed in Court on 16 June 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 5 January 1998 and notified to the applicant by letter dated 6 January 1998 to affirm the decision of a delegate of the respondent Minister made on 15 April 1997 to refuse a protection visa to the applicant. The Tribunal is joined in these proceedings as the second respondent.
I should note that in submissions filed on behalf of the respondent Minister on 31 of August 2005 Mr. Markus, who appeared for the Minister, submitted that to the extent that the amended application purports to challenge the decision of the Minister’s delegate, that is not the operative decision. While the applicant makes reference in her application and amended application that both the Department and the Tribunal were wrong and made an error in refusing her application, it is clear that in the documents filed the applicant refers to the date of 5 January 1998 as being the date on which she was notified of the decision that is subject of the application to the Court. I took the view, subsequently confirmed at the hearing before me by the applicant, that the applicant was seeking review of the Tribunal's decision. In any event, even if the applicant is seeking review of the delegate's decision I agree with Mr. Markus that the delegate's decision is no longer operative for the purposes of review. In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 at [80] McHugh J. said:
“The issuing of writs under s.75(v) of the Constitution and s.39B of the Judiciary Act is discretionary. Discretionary relief may be refused under s.39B if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is delay on the part of the applicant or the applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands. Discretionary relief may also be refused if the applicant has in fact suffered no injustice, for example, because the statutory law compels a particular outcome.”
I take the view that in seeking review of the delegate’s decision by the Tribunal, the applicant’s conduct in this regard is inconsistent with now seeking review of the delegate’s decision by this Court.
The applicant’s claims before the Tribunal were set out in her application for a protection visa to the first respondent's Department, in particular at CB 1 to CB 6 (being a submission on the applicant’s behalf to the first respondent's Department), in her application for review to the Tribunal, at CB 48 to CB 51, and in a submission to the Tribunal by her then migration adviser at CB 44 to CB 47, and in a hearing before the Tribunal on 9 December 1997, and the Tribunal's account of what occurred at the hearing before it, which is at CB 63 to CB 64.6. The applicant’s claims before the Tribunal were that she was an Indonesian woman of Chinese descent and of Buddhist religion who, in particular:
1)Was traumatised by seeing people killed during riots in Indonesia in 1965 (when she was six or seven years old). (CB 63.1)
2)Following the opening of her hairdressing business in 1980 she was harassed and intimidated by local Indonesians, councils and police who made constant demands for bribes, which resulted in her closing the business in 1986. (CB 63.2)
3)In 1993 she took over her father's business when he died, and many Indonesian clients took goods on credit, because she was a woman. Her fears arising from her trauma in the 1965 riots made it difficult for her to deal with native Indonesians who did not pay for the goods that they took. (CB 63.3)
4)She experienced extortion and corruption when dealing with large companies connected with Soeharto family, to whom she paid large amounts in “commissions” and the relevant law enforcement commission could not do anything despite the payment of a bribe. (CB 63.5)
5)She was caught up in disturbances during riots in July 1996, which scared her and stopped her doing business and consequently the business failed. (CB 63.6)
6)Three former business associates of her father, who were all ethnic Indonesian men, pressed her for money saying that her father had promised it to them, and they continued to harass her even after she sold the business. (CB 63.8)
7)One of the former business associates forced her to live with him. (CB 64.4)
8)She feared being caught up in civil disturbances “wherever she was in Indonesia.” (CB 64.5)
The Tribunal accepted that the applicant had a subjective fear of violence going back to her traumatic experiences in the 1965 disturbances, and acknowledged that the fear incapacitated her in dealing with local Indonesians and was a factor in the economic failure of her two businesses (CB 65.92 to CB 66.2). However, the Tribunal found that the problems that the applicant had faced did not arise for any Convention reason. It found (CB 66.4) that she closed her first business and sold her second for economic reasons, and that the former associates of her father who harassed her, did so because of their former relationship with her father not because she was of Chinese ethnicity or any other Convention reason. The Tribunal found (CB 66.6) that while harassment from the three former associates might occur in the future, it was satisfied that the reasons for it would be personal and commercial, and not because of ethnicity or other Convention reason. In relation to the applicant's fears that she might be caught up in disturbances, which might occur anywhere else that she might live in Indonesia, the Tribunal accepted (CB 66.7) that there was independent evidence that showed that people of Chinese ethnicity have been targeted as victims in communal violence and that such events could recur. The Tribunal found however, that on the evidence before it, the riots and disturbances did not demonstrate a course of systematic conduct against the Chinese community, and that such violence was sporadic and unplanned and was “different in nature to the general pattern of systematic discrimination” (CB 67.3). But in any event, the Tribunal found that there was independent evidence that indicated that the Indonesian government had intervened to halt such violence and had prosecuted perpetrators and that protection was available from the Indonesian authorities to people of Chinese ethnicity and would be available to the applicant in relation to riots in the future (CB 67.7). In all therefore, while the Tribunal accepted that the applicant had “subjective” fear, it was satisfied that the applicant's fear of persecution was not well founded, and on this basis it was not satisfied that the applicant was a person to whom Australia owed protection obligations under the Refugees Convention. On that basis it affirmed the decision not to grant a protection visa.
On 24 November 2004 the applicant filed an amended application to this Court, and I also have before me an affidavit sworn by the applicant on 24 November 2004, and filed on that date, with attachments. The applicant has also made written submissions with attachments filed in this Court on 16 August 2005. Much of the material now put before the Court by the applicant clearly falls within a request for impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. However, the following specific complaints may be discerned:
1)That the applicant was given insufficient time to lodge material, both in relation to her application for a protection visa and in relation to her application for review to the Tribunal.
2)That the Tribunal's finding that state protection is available in the future was incorrect.
In relation to the first complaint, I note relevantly that the applicant was assisted by solicitors who were also migration agents, throughout the period of the application for a protection visa to the first respondent's Department, and the application for review to the Tribunal. The application for a protection visa was lodged on 7 March 1997, the application for review to the Tribunal was made on 5 May 1997, the applicant attended a hearing before the Tribunal on 9 December 1997, and the Tribunal decision was made on 5 January 1998. There is nothing in the material before me to show that the applicant or her adviser sought to put to the Tribunal that there was any difficulty in obtaining documents and information in support of her claims, nor is there anything to show that any adjournment or opportunity was sought for more time to gather any such material. The applicant's adviser made written submissions to both the first respondent’s Department and the Tribunal and the applicant attended a hearing before the Tribunal.
Some of the material that the applicant now claims that she wished to lodge to the Tribunal clearly postdates the Tribunal's decision, in some instances by several years, and is not relevant to the review of the Tribunal's decision. Further, the applicant has now put before the Court, an extract from what appears to be the US Department of State: Human Rights Report 1998. The report appears to be the 1998 version of the US State Department reports for 1995, 1996 and 1997, referred to by the Tribunal in its decision record. The applicant appears to seek to rely on parts of this report to contradict or challenge the Tribunal's findings. It is clear that the report refers to events after the date of the Tribunal's decision. For example it makes reference to riots in May 1998. To the extent that the report refers to events that occurred in 1997, prior to the Tribunal's decision, then it is clear that the Tribunal did look at contemporary relevant information and in this regard, see for the example, the reference to independent country information at CB 65 and in particular to newspaper reports of September 1997. Even further however, to the extent that this report does refer to events before the Tribunal's decision (and I stress here that the report was not published or available before the Tribunal's decision), in any event, the information contained is generally consistent with what the Tribunal found and what it relied on. In this regard the Tribunal noted information about “riots in which Chinese suffered physical harm and property damage have occurred in Indonesia from time to time.” (CB 65.5) It specifically found:
“The Tribunal accepts the independent evidence that people of Chinese ethnicity have been targetted victims in communal violence. Such events have happened quite recently and could recur.” (CB 66.8)
The Tribunal did look at contemporary information which showed the general situation for persons of Chinese ethnicity on which the applicant now seeks to rely and dealt with it. I can see no error in how the Tribunal approached this aspect of its task.
The applicant also seeks to take issue with the Tribunal's finding in relation to the availability of adequate state protection. In this regard I note that the Tribunal said:
“In any event the independent evidence concerning the riots in Java in 1996/7 and in Ujung Pandang in September 1997 indicates that the Indonesian government has intervened to halt such violence and has prosecuted the perpetrators. It cannot be said that the Indonesian authorities have tolerated the ethnic violence or failed to afford protection to members of the ethnic Chinese community in such incidents.” (CB 67.5)
It is clear that the Tribunal's finding that protection is available from the Indonesian authorities to people of Chinese ethnicity in such situations, was based on then current independent country information available to it and (I emphasise that the report on which the applicant now seeks to rely was not published at the time of the Tribunal's decision) it is of course a matter for the Tribunal as to what weight it gives to such independent country information. The findings made by the Tribunal in regard to state protection were open to it on the material available to it for the reasons that it gives.
The Tribunal clearly had some sympathy for the applicant and her claims. It acknowledged that she had a subjective fear of harm, but that the harm that had occurred in the past was not for a Convention related reason, and that the fear of harm in the future arising out of the applicant being a member of the Chinese community in Indonesia, which was caught up in intermittent incidents of community violence, was not such as to constitute systematic conduct against the Chinese community. But in any event, the Tribunal independently of these findings, found that in relation to this fear of harm as a result of any conduct against the Chinese community, that the Indonesian government provided an adequate level of protection. All these findings were open to the Tribunal on the material before it and I can see no error, let alone jurisdictional error, in what the Tribunal has done. Accordingly this application is dismissed.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Nicholls FM.
Associate: Wagma Aziza
Date: 5 September 2005
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