S1573 of 2003 v MIMIA
[2005] FMCA 47
•4 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1573 of 2003 v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 47 |
| MIGRATION – RRT decision – Chinese Christians fled from 1998 Jakarta riots – Tribunal found effective State protection – no failure to deal with all claims – not required to consider whether protection from Indonesian government would meet international standards. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.415, 417, 483A, Part 8
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), Sch.1 cl.8, cl.8(2)(b)
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30
MZ Raj v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1261
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263
NAIV v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 457
NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695
Paul v Ministerfor Immigration and Multicultural Affairs (2001) 113 FCR 396
SGNB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 192
SZAWW v Minister for Immigration [2003] FMCA 479
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297
| Applicants: | APPLICANTS S1573 of 2003 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2538 of 2004 |
| Judgment of: | Smith FM |
| Hearing date: | 13 January 2005 |
| Last Submission: | 13 January 2005 |
| Delivered at: | Sydney |
| Delivered on: | 4 February 2005 |
REPRESENTATION
| Counsel for the Applicants: | Mr N Dobbie |
| Solicitors for the Applicants: | Parish Patience Immigration |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Application dismissed.
The first and second named applicants to pay the first respondent’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2538 of 2004
| APPLICANTS S1573/2003 |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application under s.483A of the Migration Act1958 (Cth) (“the Migration Act”) challenging a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 22 February 2000. The Tribunal affirmed a decision of a delegate taken on 26 October 1998 which refused applications for protection visas by the applicants. They are a husband and wife and their three sons who arrived in Australia from Indonesia on visitors’ visas in August 1998. In this judgment, I shall refer to the father as “the applicant husband” and the mother as “the applicant wife” as did the Tribunal.
Affidavits sworn by the applicant husband give a chronology seeking to explain the 4½ years delay in commencing the proceedings on 13 August 2004. He states that after the Tribunal gave its decision, the applicants made a s.417 “appeal” to the Minister seeking his discretionary intervention, and this was refused in May 2000. Meanwhile the applicants “joined Adrian Joel’s class action”, which I take to mean that they were named as represented parties in proceedings brought in the High Court by applicants including Mr Muin and Ms Lie (see Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 (“Muin and Lie”)). After the Full Bench judgment on the cases stated, Mr Joel in June 2003 filed individual applications for the applicants which were remitted to the Federal Court. Here, an order nisi was refused on 20 February 2004. On 11 March 2004 the applicants made a second s.417 request to a different Minister, and this was refused on 5 August 2004. The applicants then commenced their second (or third) proceedings seeking relief by way of judicial review of the Tribunal decision.
I am far from satisfied that the above explanation sufficiently warrants the Court overlooking such a substantial delay by the applicants in commencing the present proceedings. However, the respondent Minister chose not to cross-examine the applicant husband on his affidavits and made no submission that relief should be refused in the exercise of discretion. Moreover, for reasons given below, I have found against the applicants’ substantive grounds for review. I therefore do not need to address the issue of discretion further.
The court’s jurisdiction
The Court’s jurisdiction under s.483A is “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. Relevant to the present proceeding, that jurisdiction is found in s.39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”). Amendments made by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) replaced provisions in Part 8 of the Migration Act, so as to significantly limit the powers of the Court to give relief in relation to a Tribunal decision if it is found to be a “privative clause decision”.
However, proceedings relating to decisions made before the commencement of the amendments on 2 October 2001 are subject to transitional provisions found in cl.8 of Sch.1 of the amending Act. Relevant to the present Tribunal decision, under cl.8(2)(b) the amendments apply “in respect of judicial review of a decision under the Migration Act 1958 if … as at that commencement, an application for judicial review of the decision had not been lodged”.
In cases similar to the present, the Minister has conceded that if “as at 2 October 2001” an applicant was party to an earlier application seeking judicial review of the present decision of the Tribunal, by reason of being represented parties in Muin and Lie at that date, then the limitations in relation to privative clause decisions do not apply to new proceedings brought in this Court after the commencement. This position appears to have been taken by the Minister in several proceedings and, although I am not confident that it is based on a proper interpretation of clause 8, I have accepted the concession. Although counsel for the Minister in the present case had no instructions on the matter, he did not submit that I should not act on the concessions made in other cases, and I have decided that I should do so.
The concession was accepted by Driver FM in SZAWW v Minister for Immigration [2003] FMCA 479 in relation to a case where at the date of commencement there was no pending application for judicial review of any sort, but a judicial review proceeding brought by the applicant had been finalised prior to the commencement. In 2003 the applicant commenced a new challenge, which the Commonwealth conceded was not subject to any legislative restraints. Driver FM accepted the concession and held that the Court had jurisdiction in the matter under s.483A which was unaffected by any limitation under either the new or the former provisions of Part 8.
In matters thus freed from restraints under Part 8 of the Migration Act, the Court’s powers to grant relief remain discretionary according to the general principles applicable to the granting of administrative law remedies under s.39B of the Judiciary Act. However, as I have noted, the Minister does not put forward any argument that the Court should refuse relief based on discretionary considerations in the present case. I have addressed the present matter on the basis that I can give relief in the nature of certiorari, mandamus and prohibition as sought by the applicants according to “common law” principles, and that I should do so, if I am satisfied that a ground for quashing the decision is made out under any one of the grounds argued on behalf of the applicants.
The grounds for review
I shall not set out the numerous grounds for review pleaded in the applicants’ amended application, and addressed (in a different sequence) in their written submissions. This is because counsel for the applicants accepted that he essentially was arguing that three errors were made by the Tribunal:
i)The Tribunal failed to deal with a separate claim, or a material part of the applicants’ claims, as to the Convention basis of their fear of persecution if they returned to Indonesia, which was that they were members of a particular social group which was both Christian by religion and Chinese by ethnicity. The Tribunal erred by considering their claims by reference only to their ethnicity and their religion.
ii)The Tribunal also failed to fully deal with their claims, by addressing their fears on the basis that they related only to the harmful actions of non-Chinese Indonesians in the course of rioting in May 1998, and failing to address fears arising from an incident where the applicant husband was harassed after the riots.
iii)The Tribunal failed to ask itself an essential question when assessing the adequacy of the State protection which would be given to the applicants if they returned to Indonesia, by failing to consider whether the anticipated protective actions of the Indonesian government would satisfy standards of protection required by international standards.
Authorities on failure to deal with a claim
The first and second of these grounds relies upon a well established line of authorities which have recently been examined in the Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263. Their Honours held at [48-51] and [55] that failure by a Tribunal to make a finding on “a substantial, clearly articulated argument relying upon established facts” can amount to jurisdictional error by failure to carry out the review required by s.415. At [63] they said:
It is plain enough, in the light of Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome.
However, their Honours also held at [68] that “a judgment that the Tribunal has failed to consider a claim not expressly advanced is … not lightly to be made. The claim must emerge clearly from the materials before the Tribunal”.
It can be an elusive exercise in many cases to decide whether a particular claim for consideration as a refugee has been put forward or can be distilled from an applicant’s history so as to give rise to a duty on a Tribunal to examine it separately from other claims which have been identified by the Tribunal. Often this requires something in the material presented to a Tribunal to be classified either as a “claim advanced by the applicant” or only a “piece of evidence” presented in support of a claim. If it is the latter, then the Federal Court has also emphasised that the Tribunal is not required to refer to every piece of evidence placed before it (see Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [6-9], citing Allsop J in Paul v Ministerfor Immigration and Multicultural Affairs (2001) 113 FCR 396 at [79]).
Allsop J has recently given further guidance in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15]:
From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61]. As the Full Court said at [63] much depends on the circumstances. Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.
The claims made by the applicants
On the above authorities, it is necessary to consider what are the ways in which the applicants claimed that they satisfied the definition of “refugee” in Article 1A(2) of the Refugees Convention as adopted by the Migration Act. At no stage did they proffer an analysis, but rather they put forward a history and invited the decision-makers to perform their own analysis. I shall set out fully the history put forward by the applicant husband in his visa application:
35.I am seeking protection in Australia so that I do not have to go back to:
Indonesia.
36.Why did you leave that country?
The mass rioting and looting that was happened on 13‑15 May ’98 and also still continue until the months after May made us to take this decision to leave our country. We felt fearful that will be the next subject of the barbaric attack by the local people which are Moslem majority who target us as a Chinese ethnic (simply based on race), and it has been more than 30 years experience that if rioting was happened then Chinese became the scapegoat.
On those horrific days, many Chinese concentration area into destruction zone, killing raping, looting and they did brutality to Chinese like animals. Thanks to God that on 13 May ’98 afternoon my wife arrived home safely from her office that her office been closed earlier, because the office was in city the main area which business concentration conducted by Chinese (Gajah Mada Road). I don’t know what will be happened with her if she went back home late for few hours, because the route she drove is very dangerous area.
After few days, many sad stories emerged through TV, newspaper, and also from the witness, Human Right Members etc that the barbaric action was organised by the Elite Military. Until we left Jakarta on 8/8/98 the country situation still in unstabilize conditions.
37.What do you fear may happen to you if you go back to that country?
We feel fearful to be the next subject of the mass massacre (rioting, looting, killing and raping), as after the mass rioting on 13‑15 May ’98, we still found some terror and threat, ie: many building, Chinese shop or houses had been marked certainly to identify, so that will be easy to be the next subject.
There is no guarantee that rioting will not be happened again. We Chinese have always become the scapegoat and looks never ending.
On the mass rioting of May, there are almost 2 million peoples was involved on the Jakarta and Tangerang area, and caused of mass raping, mass looting, mass destroying properties. We really felt shock and traumatic with those tragedy. We have 3 small boys which we have to take care of them, many issues appeared that children also will be the subject of kidnap, to get money redemption from the parents.
We asked our children to stay at home to avoid any kidnap, and their freedom became very limited.
We could not sleep peacefully every night, worried that one day unexpected attack or riot will come to our residential area.
One week after the mass riot of May, one group of people came to our residential area, and two people of them entering into my house. They forced and threatened me to pay for one small bottle of unbrand parfum that they made by their own group with very fantastic price Rp 500,000 (similar to A$300 before Indonesian crisis).
I refused to give the money and told them we did not need the parfum. Suddenly they were angry and scold me very rude and mentioned that Chinese must give money to them as a compensation that Chinese have lived in their country so many years, and they kept asking for the money. Finally I was forced to pay without taking the parfum because at that time my 3 children went back from school and we feared what will be happened with our children.
Many stories from friend, neighbour, TV have created more fear among us.
And every time I remember that happening stories and I felt very stress and frustration, and looked at my children future who are in darkness living in Indonesia.
They have destroyed everything including future generation and it is hurt our heart who have been born in this country but we feel as like as un-citizen people.
With this situation which still rioting and looting continue, we feel fear to go back to our country.
38.Who do you think may harm/mistreat you if you go back?
Moslem Extremist Group from local people who did secretly, and has been proved that they are anti-Chinese so many years. They want to cleanse Chinese from Indonesia. They looking for the chance to incite public who are easy to be incited.
On the 1997, near Malang City (East Java) was found there are Militant Extremist Group was doing military exercise to have an aim to do political rebellion against the Government, and also to cleanse Chinese in Indonesia. On the May tragedy there is indication an Army conspiracy with Chinese scapegoats as a minority to goal their political aim.
39.Why do you think they will harm/mistreat you if you go back?
Because Moslem Extremist Group has already been proven that they are anti-Chinese since year of 1960. The Chinese who normally are Catholic, Christian, Buddhist, are suspected to be Moslem’s competitor, and if there are Chinese give any supporting to them then they will suspect us who will persuade them to change their religion.
When Chinese people was attacked or had problem with local people, military will let and allow what they did, military worried that they have been suspected and deemed Chinese, then military took chance and expecting some fund from Chinese for their effort.
In the economic sector, there are many group of people who dislike and feel jealous with the progress and development of Chinese business.
On the year of 1997 at Situbondo (East Java) was happened that Moslem destroyed and burnt many church and Chinese temple, although the conflict is because of their colleagues (internal Moslem problem).
With the last May tragedy we feel that we will not be safe to stay in Indonesia, shock and traumatic because Indonesia with 200 million of people, reach of mining and as a developing country should not be happened with that tragedy that destroyed all property and economic was build since 20 years ago.
40.Do you think the authorities of that country can and will protect you if you go back? If not, why not?
It is difficult to expect any kind of protection from the authorities, because from many years experience there is no evidence that authorities will care Chinese from Moslem/local people attack or racialism. But in any cases the authorities involved or masterminded to create scapegoating politic to distract the real issue such as corruption, nepotism, collusion and dictatorship.
Some doer of killing and raping on this May tragedy had confessed to the volunteer workers and now kept in the safe place for further investigation.
But the masterminder had never been caught. Even though the government has been changed but the policy never changed, they are just propaganda and cosmetically because the Government does not wish to lose the alliance with the Moslem Groups who predominantly against other religions.
The fact of majority Moslem Country which control by the Army had no prospect of being a nation of toleration toward race and religions as such as the Western Democratic and Human Right honoured, protected and guaranteed by the constitution or law.
Below are the facts of racial or discrimination which happened in Indonesia:
–We forced to change our Chinese name into Indonesian name, and we’re denied access in to the university or set up business if we’re in Chinese name.
–We cannot speak or learn our language, Chinese school was totally prohibited.
–We are the subject of discrimination in any level of the bureaucrats, such as to arrange legal document or certificate, identity card, we have to pay with extra money.
–We are the subject of scapegoating by Government of Moslem Group which based on social jealousy.
When we are writing this application, the rioting and looting still continue in other small cities, ie: Aceh (Sumatra), Medan (North Sumatra), Kebumen and Cilacap (Central Java) with again Chinese became scapegoat.
Government only did investigation to one General from Elite Military that involved in missing of eleven reform-support activists (local people). But the riot case that thousand Chinese killed seems to be forgotten by Government to investigate further.
Military just back-up some rich Chinese places who have good connection with bureaucrats. This make us a question when protection from Government will come to the minority like us? And this make us more lose of trust to the Government.
With this above reason, we really expecting to receive a Protection Visa, for those we thank you if our application will be granted.
The applicant wife recounted the following history:
35.I am seeking protection in Australia so that I do not have to go back to:
Indonesia.
36.Why did you leave that country?
I feel very shock and traumatic with tragedy was happened in 13‑15 May and also the situation became unstabilize in this country because the rioting and looting still continue. Our Government like no serious action to prevent worst situation.
This situation (riotings) made our country condition become worst, ie: rupiahs (Indonesian money) became very weak and caused the prices of any goods become expensive including the more basic foods, many people lose their jobs.
Chinese ethnic in Indonesia become in the risk condition to be a scapegoat, and this has been proved with many years experience that if any problem such as fight or rioting, Chinese will be the scapegoat.
This become the top issue when the tragedy of May was happened, and we are very shock to learn that thousand people was killed and more that 150 women was raped, building and houses was burned and their goods and things was looted.
The rioting and looting still continue until now that happened in small city, ie: Aceh, Medan, Cilacap and Kebumen, and look like will never ending.
37.What do you fear may happen to you if you go back to that country?
With rioting and looting still continue in many area/other small city, we feel fearful to be the next subject of their mass massacre. And there is no guarantee that rioting will not be happened again, and also there is no guarantee that Chinese will not be scapegoat in any cases.
On the mass rioting of May 13‑15 ’98 there are almost 2 million of people was involved on that barbaric action. Thanks to God that on the 13th of May I went back home safely. On that day when situation started unstabilize (the area that near Trisakti University), our office closed earlier, I drove my care with 2 office staff (women and Moslem local people). We have to pass Grogol, Daan Mogot and Cengkareng where near to the Trisakti University. We saw few thousand of people from gangs has been on the road. And 2 people of them has knocked at the door of my car, and asked me to went out of car, lucky the 2 women of my office staff suddenly scold them and told them not to touch me because I am her relative, after arguing with the gangs, they allowed us to go. I was shock and traumatic with this happening and I did not come to office for about 10 days, before finally I resigned by end of July and started this travelling to Australia.
I was fear with many issues emerged that children also could be the subject of kidnap which I have 3 small boys (10 years, 7 years, 6 years old). Living in Indonesia like in darkness for young generation, the May tragedy has destroyed the future generation especially for Chinese.
Many sad stories from media, friends, neighbour, witness has created more fear.
38.Who do you think may harm/mistreat you if you go back?
Local people which Moslem majority has been proved as doer of any cases of massacre or rioting.
And always when rioting was happened, Chinese will become the scapegoat easily. This has been 30 years experience since 1960. They would like to cleanse Chinese from Indonesia with one motive jealousy.
In May tragedy there is indication an Army conspiracy with Chinese scapegoat as a minority to goal their political aim.
39.Why do you think they will harm/mistreat you if you go back?
The Moslem Extremist Group has been anti-Chinese since 30 years ago. They don’t like other religions was developed in Indonesia, such as: Catholic, Christian, Buddhist, and Chinese religions.
On the year of 1997 at Situbondo (East Java) was happened that Moslem destroyed and burnt many church and Chinese temple and houses, although the conflict is because of their colleagues (internal Moslem problem), and again as usual Chinese become the scapegoat. And the doer has been caught and investigated but finally the attorney has loosen them because forced by Moslem.
We fear that some day will happened to us if we still live in Indonesia. Currently situation in Indonesia become worst instead of better situation. We can not live, work or do business calmly.
40.Do you think the authorities of that country can and will protect you if you go back? If not, why not?
It is difficult to seek any kind of protection from the authorities, because from many years experience there is no evidence that authorities is willing to protect Chinese from Moslem or local people attack or racialism. But in any cases the authorities involved or masterminded to create scapegoating politic to distract the real issue such as: corruption, nepotism, collusion and dictatorship. Some doer of killing and raping on this May tragedy had confessed to the volunteer workers and now kept in the safe place for further investigation. But the masterminder had never been caught, and government seems not very serious to investigate the doer or masterminder.
Even though the Government has been changed but the policy never changed, they just propaganda and cosmetically because the Government does not wish to lose the alliance with the Moslem Groups who predominantly against other religions.
The fact of majority Moslem Country which control by the Army had no prospect of being a nation of toleration toward race and religions as such as the Western Democratic and Human Right honoured, protected and guarantee by the Constitution or law.
Government did investigation to one General from Elite Military that involved in missing of eleven reform-supporting activists (local people) and until now no further action or legal announcement of the result. The riot case that destroyed more than thousand of Chinese and also other properties seems to be forgotten by Government to investigate further. Peoples have lost of trust to the Government.
No further material or submissions relevant to the analysis of their claims was given to the delegate or the Tribunal, apart from their “reasons for making this application” set out in their application for review. This stated:
The Department of Immigration’s decision to refuse our application to be eligible granting for the Protection Visa obviously based on the prejudice, speculative, lack of understanding of the Indonesian political, Government Discrimination Policy and most of Indonesian aboriginal towards us as the Chinese Ethnic of Indonesia, despite all the evidence clearly support the overwhelming deep trauma desperation and totally hopeless and unprotected. In fact Chinese Ethnic has been always targeted the usual scapegoat at time of political crisis by both the Elite and the General Moslem.
We can stand on that situation if the threat is in oral only, but with the real action we don’t need to stay longer to wait until situation become worst and we will be in “foolish death”.
Military that should protect us, but the contrary has been proved as a masterminded of the rioting, looting, raping (the Jakarta Post, Nov 4 ’98). We have lost of trust to our Government. And this is proved that Government and Military are not capable to commit to maintain security and prevent outbreaks of violence towards the Chinese Ethnic. We worried that rioting, looting, burning and chaos will be happened again and now in November 14‑15 ’98 our experience with May tragedy was repeated. (The Sunday Age – Nov 15 ’98, the Australian and the Sydney Morning Herald – Nov 16 ’98 enclosed).
It is hard to live in Indonesia as a “double minority” (Chinese and Christian), and it has been proved that Government has failed to unite Indonesia nations by Ideology of Pancasila, because riotings, lootings and violence in Indonesia based on politic and religions. We have a good life and career in Indonesia but it is no meaning compare to our safety and our children future. Our opinion, Indonesian political and economic situation in the future will be worst, that cause to any chaos and violence will be repeated again (emphasis added).
On last Sunday Nov 15 ’98, we contacted our relatives in Jakarta‑Indonesia to check the situation, and they said that no need to think about come back to Indonesia, while they are ready to go to USA as soon as possible.
What is the difference between us and other refugees from former Yugoslavia, China, etc, we would like to seek the justice and wisdom decision from RRT.
I have emphasised the words in the above document which counsel for the applicants argued gave rise to a separate claim for consideration of the applicants as refugees distinct from their situation as Chinese or as Christians. Counsel argued that they had put forward a distinct claim to fear persecution as members of a “double minority” group of Indonesians. However, he took me to no other point in their applications where this claim was argued to have been made. He took me to no material in the “country information” which was before the Tribunal which gave any significance to their description of themselves as belonging to a “double minority”.
How the Tribunal dealt with the applicants’ “double minority” claim
I do not accept the applicants’ first ground of review, since I consider that in its statement of reasons the Tribunal showed itself fully aware that an aspect of the applicants’ fear of persecution was that they were both Chinese and Christian, and that its conclusions as expressed sufficiently dealt with this aspect.
The Tribunal shows this awareness and its conclusions deal with this aspect in the following way:
a)At [15] the Tribunal identifies the applicant husband as “a naturalised Indonesian citizen of Chinese ethnicity and Christian religion”.
b)At [16] and [19] the Tribunal identifies the claims made in the original protection visa applications as being made “on the basis of his (or her) Chinese ethnicity”. This, in my opinion, is a correct characterisation of the claims made in the passages which I have extracted above. Its pervasive theme is that all Chinese are threatened in Indonesia, and that the “anti-Chinese” feelings relate to their perceived wealth as well as their non-Moslem religions. The two incidents related by the husband and wife involved showed them being harassed purely on the basis of their Chinese ethnicity.
c)In the course of the histories put forward by the applicants they made reference to religion (“Catholic, Christian, Buddhist, are suspected to be Moslem’s competitor”) as a cause of anti-Chinese feeling, and it was open to the delegate and Tribunal to consider whether there were added risks attaching to the applicants by reason of their religion. Both the delegate and the Tribunal did consider this. However, I cannot find a suggestion in anything originally put forward by the applicants that their fears were heightened because of a specific “double minority” status as distinct from having two bases for their fear, nor that they feared being specifically targeted as “Christian Chinese people”. I certainly cannot find these claims being put forward “tolerably clearly”. I consider that no error was made by the Tribunal in not identifying such a separate claim in the histories put forward by the applicants in support of their original visa applications.
d)At [20] the Tribunal stated, “The applicants did not add to their specific claims when seeking review by this Tribunal, although they attached press clippings reporting on rioting which occurred in Indonesia in November 1998. They also explicitly relied on their religion as a Convention ground, claiming that they are ‘double minorities’”. In my view, this demonstrates that the Tribunal was fully aware of the applicants’ description of themselves as “double minorities”. I also consider that it was open to the Tribunal to understand the reference as doing no more than confirming that they put forward an added religious basis for their claim to fear persecution. Its reasons at this point and subsequently show that it addressed this added basis.
e)There is nothing in the Tribunal’s account from [21] to [31] of its exchanges with the applicants in the course of its hearing which suggests that they put forward a discrete basis to fear as members of a targeted social group of Christian Chinese people, as distinct from their ethnic and religious characteristics. The applicants have not tendered a transcript to show otherwise.
f)At paragraphs [29] and [30] the Tribunal indicates that it explored with the applicants information that the then current government “has had good relations with both Christians and the ethnic Chinese and has taken, and continues to take, steps to heal the rift between ethnic Chinese and ethnic Indonesian, and between Christians and Moslems”. I consider that this reflects a proper appreciation by the Tribunal of how the applicants had framed their concerns.
g)In paragraphs [32] to [39] the Tribunal examines relevant country information concerning the 1997‑98 rioting and the subsequent position of Chinese and Christians in Indonesia. At the end of its discussion, the Tribunal shows at [39] that it had considered the possibility of a combined Chinese/Christian risk factor in relation to the more recent communal violence:
In late 1999 and early 2000 there were episodes of communal violence between Christians and Moslems in the Moluccan Islands, West Timor, Ambon, and another incident in Ketapang, a Jakarta neighbourhood, but these episodes were, with the exception of the Moluccan Islands and Ambon, short-lived and quickly controlled by Indonesian police. It also appears that in all these incidents, friction between different ethnic groups (none of them ethnic Chinese) played a significant part in sparking the violence (emphasis added).
h)I consider that the fact that the Tribunal discusses the “independent information” under separate headings “Ethnic Chinese in Indonesia” and “Christians in Indonesia” does not show that it overlooked the “double” nature of the applicants’ fears. It would be strange if the Tribunal had done this, in the face of its reference to that fear at [20].
i)Similarly, I do not consider that this is shown by the fact that the Tribunal included in its discussion of its “Findings and Reasons” the headings “Ethnicity – findings” and “Religion – finding”. On the applicants’ submissions, the Tribunal erred by failing to have a further heading “Chinese Christians – findings” and added discussion which analysed the applicants’ claims as raising a discrete fear based on membership of such a social group. As I have indicated above, I do not consider that such a claim was “clearly made” either expressly or implicitly. I consider that the Tribunal sufficiently dealt with their added fears as Chinese who were also Christians.
j)The Tribunal shows this in its discussion under both headings. It naturally dealt with the (then) current general situation of people of Chinese ethnicity in Indonesia first and at greater length, since this was put forward at all times by the applicants as the foundation of their fears arising from the 1998 rioting. Its key conclusion at [43] avoided the need to perform an analysis of the reasons for the rioting and how they related to the Convention “grounds”:
I do not need to make a finding as to whether the riots in Indonesia in 1998 were race‑related or could have constituted persecution for a Convention reason because of my finding, below, that the Indonesian government did, and in the future can be expected to, protect the applicants and the population against such harm.
k)However, at the end of this discussion under this heading it dealt at [48] with the implications of the more recent incidents of “communal violence”, which at times had been overtly targeted against Christians. It concluded that these had occurred in parts of Indonesia where the applicants were unlikely to live, and that one incident in Jakarta in December 1999 was “an isolated incident”.
l)The Tribunal’s reasoning continued:
49.I accept that the applicants have a genuine fear of returning to Indonesia. However, for the reasons which I have given above, I find that their fear is not well‑founded. I find that the chance that the applicants will suffer persecution by reason of their ethnicity if they return to Indonesia is remote.
Religion – finding
50.I am not satisfied that the applicants have ever faced, or may in the future face, discrimination amounting to persecution on the basis of their Christianity. For the reasons given above, I find that the present incidents of communal violence, including religiously inspired violence, in some parts of Indonesia do not constitute a threat to the applicants and that in any event they are able to access effective protection by the Indonesian government from such harm, even assuming such communal violence constitutes persecution for a Convention reason, which I am not satisfied that it does.
51.I find that the chance that the applicants would be persecuted on the basis of their religion if they return to Indonesia is remote.
I consider that the Tribunal dealt with the applicants’ claims in a manner which shows no error of law. I do not accept that it misconceived their claims or failed to deal with a material claim in relation to the applicants’ “double minority” situation in Indonesia. I do not accept that the Tribunal was obliged to show that it had analysed the material before it so as to find a separate “social group” claim concerning Chinese Christians and then to address this as a discrete issue (c.f. NAIV v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 457 at [53-4], relied upon by counsel for the applicants).
How the Tribunal dealt with the applicants’ experiences
Under the second ground for review, counsel for the applicants submitted that the Tribunal misconceived the applicants’ fears as being solely fears of “riot-related violence” and failed to appreciate that the applicants had fears “separate from riot-related violence.” In particular, the Tribunal acted under a misapprehension that the one incident recounted by the applicant husband had occurred during a riot, whereas it showed harassment of the applicant as a Chinese person occurring after the May 1998 riot.
I do not accept these submissions. I consider that they are based upon a misreading of the applicant’s evidence, and of the Tribunal’s reasoning.
In his protection visa application the applicant husband said of this incident, “One weeks after the mass riot of May, one group of people came to our residential area, and two people of them entering into my house. They forced and threatened me to pay for one small bottle of unbrand parfum that they made by their own group with very fantastic price …”.The Tribunal states at [24] that the applicant husband told it at the hearing “that the incident occurred about 25 May 1998, after the riots were over”.
Notwithstanding that the incident did not occur on the days of the rioting, I consider that it was well open to the Tribunal to understand that the applicants were putting forward the experience as being part of the aftermath of the rioting and as illustrating a situation of general insecurity for Chinese people which followed the rioting. I do not consider that the Tribunal was obliged to deal with the incident as giving rise to a separate claim requiring additional discussion and findings by it.
The Tribunal deals with the matter and characterises it as follows:
40.… Having heard the applicants’ evidence, it is apparent that they refer to the actions of other, private Indonesian citizens during and immediately after the May 1998 riots. In relation to those particular claims, I accept the applicant husband’s claim to have been threatened and subjected to an act of extortion. I accept the applicant wife’s claim to have been threatened by a rioting mob while driving home from her work.
…
42.I find that the causes of the violence, demonstrations, looting and assaults which occurred at that time were primarily unrest at the perceived corruption and undemocratic nature of the Soeharto administration together with the effects of Indonesia’s severe economic crisis. The information which I have examined strongly suggests that the violence experienced in Indonesia in 1998 was a response to the significant deprivation imposed by the economic crisis and anger at the then government over evidence of corrupt and undemocratic structures.
In my opinion, the Tribunal sufficiently dealt with the incident in its above discussion. It also clearly shows that it was fully aware of the applicants’ evidence as to when it occurred. I consider that it was open to the Tribunal to examine the risk of the repetition of similar harassment in the context of its examination of whether the applicants in the future would be protected from harm during a repetition of “unrest” comparable to their 1998 experiences. The Tribunal has clearly held at [43] that the Indonesian government in the future could be expected to “protect the applicants and the population against such harm”. Whether these factual assessments were correct is not a matter for me to decide.
Failure to consider international standards of State protection
In its general discussion of the Refugees Convention, the Tribunal instructed itself that a fear of harassment from non‑State agencies would come within the Convention only if the harassment occurred in circumstances implicating the State of nationality in a failure to provide protection to the claimant. It said, “The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality”. In my opinion, this remains a legally correct identification of a question which must be addressed by a Tribunal when assessing fears of harm from non‑State agencies. It derives from an opinion expressed by Brennan CJ in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 233, which has recently (years after the present Tribunal’s decision) been cited with approval by Gleeson CJ, Hayne and Heydon JJ in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 (“Respondents S152/2003”) at [19]. A better or more authoritative description of this element has yet to emerge clearly from the High Court (c.f. Selway J in SGNB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 192 at [32-3]).
The present ground of appeal arises from another passage in the majority judgment in Respondents S152/2003. In that case, the respondents had claimed fear of persecution in the Ukraine due to being Jehovah’s Witnesses, and pointed to two assaults and some property damage. The Tribunal said that it was “not satisfied that the authorities can be said to be unwilling or unable to protect their citizens”, and that the incidents complained of “were individual attacks with different perpetrators being involved. The Tribunal further rejects his claims that the State is implicated through its manipulation of the media and that it is unwilling or unable to protect its citizens” (see [11] and [12]). Their Honours in the High Court rejected an opinion given in the court below that the Tribunal had erred by not giving “specific consideration of the State’s ability, in a practical sense, to provide protection” (see [16]). In the course of explaining their reasons, they said:
26.No country can guarantee that its citizens will at all times, and in all circumstances, be safe from violence. Day by day, Australian courts deal with criminal cases involving violent attacks on person or property. Some of them may occur for reasons of racial or religious intolerance. The religious activities in which the first respondent engaged between May and December 1998 evidently aroused the anger of some other people. Their response was unlawful. The Ukrainian state was obliged to take reasonable measures to protect the lives and safety of tis citizens, and those measures would include an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system. None of the country information before the Tribunal justified a conclusion that there was a failure on the part of Ukraine to conform to its obligations in that respect.
27.In fact, there was no evidence before the Tribunal that the first respondent sought the protection of the Ukrainian authorities, either before he left the country or after he arrived in Australia. According to the account of events he gave to the Tribunal, he made no formal complaint to the police, and when the police interviewed him after the first attack, he made no statement because he could not identify his attackers. The Tribunal considered the response of the police on that occasion to be appropriate. It is hardly surprising that there was no evidence of the failure of Ukraine to provide a reasonably effective police and justice system. That was not the case that the first respondent was seeking to make. The country information available to the Tribunal extended beyond the case that was put by the first respondent. Even so, it gave no cause to conclude that there was any failure of state protection in the sense of a failure to meet the standards of protection required by international standards, such as those considered by the European Court of Human Rights in Osman v United Kingdom (1998) 29 EHRR 245.
Counsel for the applicants submitted that in the last sentence of [27] their Honours implied that the likely State response to the risk of third party harms must be found to “meet the standards of protection required by international standards” before it could be found to be “adequate” or “effective” or to establish the “ability and willingness” of the State to protect the person fearing persecution.
In my opinion, this submission misunderstands the fundamental question which is being addressed by a Tribunal in such a case. This is whether the Tribunal is satisfied that the person fearing harms will not receive State protection, not that he will receive it. From this misunderstanding, the submission misunderstands the point made by their Honours in Respondents S152/2003. They said no more that if there had been evidence before the Tribunal that in the circumstances feared the State response would not “meet international standards”, then this might have provided evidence suggesting a failure of State protection. They cannot be understood to suggest that in all cases a Tribunal must conclude that such a failure would occur unless it found compliance with international standards. I cannot understand their Honours to suggest that in every case it is either necessary or possible to identify “international standards” against which to assess an individual country’s responses, for example, to communal rioting.
In the present case, counsel for the applicants was unable to point to material before the Tribunal which showed that the anticipated responses of the Indonesian Government to future anti‑Chinese rioting in Jakarta would not meet an international standard. He tried to do so by reference to a US report criticising the Indonesian judiciary in 1998 and the treatment of persons detained on political grounds. However, this material was irrelevant to the claims of the present applicants. I had difficulty imagining what evidence could have been located by the Tribunal to show what are the relevant “international standards” against which the Indonesian government’s response to communal rioting should be judged, and counsel for the applicants was unable to give illumination.
Moreover, in the present case, the Tribunal went further than the Tribunal in Respondents S152/2003. It made a positive finding at [43] which I have referred to above that “the Indonesian government did, and in the future can be expected to, protect the applicants and the population against such harm” [i.e. “communal dissatisfaction” and “discriminatory policies and practices”], and made its own favourable assessment of the protection likely to be given to the applicants if rioting recurred:
46.I find that, if riots do recur, the response of the police and military will be adequate to provide the population, including the applicants, with protection. In this context, it is not necessary that the government can guarantee protection. It is sufficient that the government has in place the structures and the political will to respond appropriately to communal violence (MIMA v Prathapan (1998) 156 ALR 672 at 680‑681).
47.Further, even if the Indonesian authorities could not prevent the harassment of the applicants, it does not follow that the nature and extent of the protection provided by the Indonesian authorities was inadequate (Kandasamy v MIMA [1999] FCA 1085, Moore J, 12 August 1999). The independent evidence which I have considered satisfies me that the Indonesian government in 1998 took appropriate action, within the parameters of its resources, to quell the violence and protect its citizens and that, if such rioting were to recur, the government would again act to protect its citizens, including the applicants. I am satisfied that the capacity of the authorities to respond to any recurrence of rioting has been enhanced by the changes introduced to the police and the military by President Wahid.
48.The present outbreaks of communal violence in some parts of Indonesia, primarily Aceh, Ambon, parts of Kalimantan, Lombok, and Irian Jaya, are all referable to separatist movements based either on ethnicity or religion. The applicants have not lived in any of these areas and are unlikely to do so if they returned to Indonesia. Although I accept the applicants’ claim that a Christian school in Jakarta was burned down in December 1999, I find that this was an isolated incident and, given that I have found no other evidence of communal violence associated with ethnic or religious separatist movements in Jakarta, I do not consider that this provides a sure indication of future patterns of communal violence in Jakarta. I find the chance that the present incidents of communal violence in parts of Indonesia would affect the applicants in Jakarta to be remote. In any event, I am not satisfied, for the reasons given above, that such communal violence constitutes persecution for a Convention reason and I find that the government of Indonesia is able and committed to protecting the population, including the applicants, from such violence.
I am not persuaded that the Tribunal made any error of law when reaching the above conclusions. I consider that the Tribunal made no error of law by reaching these conclusions in the absence of evidence showing that the Indonesian government would meet relevant “international standards” and a finding by the Tribunal on that topic.
A further reason for rejecting this ground for review is that the proposition that a “failure by a Tribunal in a non‑state agent case to consider international standards of protection necessarily involves jurisdictional error, whether or not that issue is raised by a claimant” was refuted by Heerey J in MZ Raj v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1261 (see [26]). I respectfully agree with all that his Honour said concerning the ratio decidendi of Respondents S152/2003 and the inherent difficulties in the proposition. I consider that I am bound by his Honour’s judgment to reject the present ground argued by the applicants.
For the above reasons I shall dismiss the application with costs payable by the adult applicants.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 4 February 2005
24
15
0