STZB v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 855

FEDERAL COURT OF AUSTRALIA

STZB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 855

STZB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S 45 of 2004

SELWAY J
11 JUNE 2004
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 45 OF 2004

BETWEEN:	STZB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SELWAY J
DATE OF ORDER:	11 JUNE 2004
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.        Application dismissed.

2.        The applicant to pay the Minister’s costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 45 OF 2004

BETWEEN:	STZB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SELWAY J
DATE:	11 JUNE 2004
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. The applicant is an Indonesian citizen.  He first arrived in Australia in February 1999 and returned again in June of that year.  He departed Australia on 13 February 2000 and returned again on 27 February 2000.  In each occasion he travelled on a passport issued by Indonesian authorities in Jakarta.  That passport was renewed at the Indonesian consulate in 2002.

2. He was initially present in Australia on a tourist visa and later on a student visa.  On 12 June 2002 the applicant lodged an application for a protection visa.  In order to obtain such a visa, the applicant needed to satisfy the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) that Australia had protection obligations towards the applicant.  In general terms, the applicant had to satisfy the Minister that he was a person who:

   ‘… owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it.’

3. The applicant’s claim was based upon his membership of the GOLKAR Party and his friendship with a person who was the grandson of the former president of Indonesia, President Suharto.  He informed the Refugee Review Tribunal (‘the Tribunal’) of one particular incident in 1998 where he was at some risk.  He described the incident as follows:

   ‘… he was pulled from his car and beaten.  He agreed with the Tribunal that this was during the riots of May 1998 and there was a lot of violent incidents occurring at the time.  He did not know any of his attackers and so he could not be sure that they knew who he was.  He reported the incident to the police but they did not want to know and did nothing about it.  He said that he had no further problems but he preferred to come to a safe country like Australia.’

4. The applicant informed the Tribunal that “he did not want to go back to Indonesia because life was hard there and he would find it very difficult to get employment”.  He repeated the same claim before me.

5. The Tribunal dealt with the application as follows:

   ‘… In making an application for protection, it can be said that he Applicant has claimed that he holds a fear.  However, of itself this is insufficient to establish the well‑foundedness of his fear.  At his hearing, the Applicant expressed anxiety rather than fear.  He stated that he was anxious about his future and believed he would be better off here in Australia.  He had learned English and now had a qualification in cookery.  He would be able to get a job here but not in his own country, or at least not without difficulty.  Even if the Tribunal were to interpret his expressed anxiety as a fear, he moved away from his original claim about fearing persecution for reasons of his political opinion.  He told a simple story of having supported GOLKAR, which the Tribunal accepts, and having been very scared by the car incident in May 1988 [sic], which the Tribunal also accepts.  His evidence made clear that he had no on-going commitment to politics and that even the incident of 1988 [sic] could not be cast definitively in a political mould.  It was a time of considerable chaos and he appears to have been caught up in a random act of violence.

   Even if his attackers, or any of them, knew of him as a GOLKAR supporter, there is no evidence that there was any intention of an on-going campaign against him.  He remained in Indonesia until coming to Australia in January 1999.  He returned to his home country on two occasions and at no time was he hindered by the authorities of his country.  His passport was renewed while he was in Australia.  That is, there is no evidence that he would be persecuted in any way by his government or its agents should he return to Indonesia.  He was the victim of one regrettable act of violence some five years ago and there had been no repeat of this.  The Tribunal finds that he does not face a real chance of persecution for any of the reasons raised in his claims.  The Tribunal also notes that, even if he did resume supporting GOLKAR, he would be one of many thousands to do so.  The party continues to be a major player in Indonesian politics and co-operates with the President and her party.  There is no evidence that members of GOLKAR are now or would be in the foreseeable future persecuted for reasons of that membership or support.’

6. The applicant has filed an application for an order of review.  Even assuming the court has jurisdiction to deal with that application in the manner in which it is presented, the application does not disclose any grounds of error.  Of course, in order to succeed in relation to an application for judicial review of a decision of the Tribunal, it will be necessary for the applicant to show that the Tribunal had committed a jurisdictional error.  No jurisdictional error is alleged in the order for review.

7. On 15 April 2004 I made orders that the applicant provide further and better particulars of that application.  They have not been provided.  The applicant explained to me that his concern in relation to the decision of the Tribunal was fundamentally that the Tribunal was wrong on the merits.  That, of course, is not a proper ground of review for jurisdictional error.  Even if it were, I am certainly not satisfied that the Tribunal was wrong on the merits, but in the circumstances, there being no jurisdictional error alleged and none at all obvious, the application must be dismissed.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.

Associate:

Dated:            5 July 2004

Counsel for the Applicant:	Applicant appeared in person
Counsel for the Respondent:	M Roder
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	11 June 2004
Date of Judgment:	11 June 2004