Susanto (aka Hartono) v Minister for Immigration and Multicultural Affairs

[2001] FCA 922

FEDERAL COURT OF AUSTRALIA

Susanto (aka Hartono) v Minister for Immigration & Multicultural Affairs
[2001] FCA 922

MIGRATION – review of decision of Refugee Review Tribunal – refusal to grant protection visa – whether failure to observe procedures required to be observed – whether failure to set out reasons relevant to issue of whether applicant had well-founded fear of persecution – error of law – whether failure to interpret or apply test of well-founded fear of persecution – whether failure to speculate reasonably about chance that applicant would suffer persecution.

Migration Act 1958 (Cth) - ss 476(1)(a), 476(1)(e)
Migration Regulations 1994 - Sch 2 Pt 866

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 distinguished
Minister for Immigration and Multicultural Affairs v Rajalingham (1999) 93 FCR 220 distinguished

Minister for Immigration and Ethnic Affairs v Yusuf (2001) 180 ALR 1 applied

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 referred to

SUSANTO (AKA HARTONO) v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 821 of 2000

GOLDBERG J
18 JULY 2001
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 821 of 2000

BETWEEN:	SUSANTO (aka HARTONO) Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	GOLDBERG J
DATE OF ORDER:	18 JULY 2001
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application be dismissed.

2.        The applicant pay the respondent’s costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 821 of 2000

BETWEEN:	SUSANTO (aka HARTONO) Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	GOLDBERG J
DATE:	18 JULY 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

Introduction

1. The applicant has applied pursuant to Pt 8 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 6 September 2000 affirming the decision of the delegate of the respondent, the Minister for Immigration and Multicultural Affairs (“the Minister”), on 29 October 1998 to refuse to grant the applicant a subclass 866 (Protection) visa.

2. The applicant, a citizen of Indonesia, arrived in Australia on 21 February 1998 on a false Indonesian passport issued to Mr Hartono. He lodged an application for a subclass 866 (Protection) visa with the Department of Immigration and Multicultural Affairs on 6 April 1998 in the name of Hartono. The criteria for the grant of a subclass 866 (Protection) visa are set out in Pt 866 of Sch 2 to the Migration Regulations 1994 (“the Regulations”) and in s 36 of the Act.

3. A criterion for a protection visa is that, at the time of the decision to grant the visa, the Minister is satisfied that “the applicant is a person to whom Australia has protection obligations” under the Convention Relating to the Status of Refugees 1951, as amended by the Protocol Relating to the Status of Refugees 1967 (“the Convention”): cl 866.221 of Sch 2 of the Regulations. Article 1A(2) of the Convention defines a refugee as any person who:

   “owing to 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 to 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.”

4. The applicant claimed that he had a well-founded fear of being persecuted on return to Indonesia because as an Indonesian citizen of Chinese race he would be subject to persecution from Indonesians who made Chinese scapegoats.

5. The applicant’s application was refused by a delegate of the Minister on 29 October 1998 and the Tribunal received the applicant’s application for review of this decision on 27 November 1998.  The Tribunal affirmed the Minister’s decision to refuse to grant the protection visa as it was not satisfied that he was a person to whom Australia had protection obligations under the Convention.

   The applicant’s claims

6. At the Tribunal hearing, the applicant conceded that the passport which he had used to enter Australia was false and produced another passport in the name of Mr Susanto which he said had been issued legitimately to him in 1991 and which had expired in 1997.  He said that he was of Chinese ethnicity, he was born in Semarang and he became an Indonesian citizen in 1988.  He told the Tribunal that he had to escape anti-Chinese riots in February 1998 but could not obtain a visa to Australia, so he paid an agent for a passport and visa which would allow him to go to Australia.

7. The applicant feared he would be harmed if he returned to Indonesia because of his Chinese race and his Christian religion.  His parents and six siblings lived in Semarang, on the north coast of central Java.  Between 1988 and 1993 he worked in a family factory which manufactured staplers.  For the following three years he worked for a foreign firm in a furniture factory and from 1996 to 1998 he worked for his family which operated a wholesale primary foods business in a warehouse that was attached to the family home.

8. In 1995, his father was hit and some paper scrolls were damaged when the applicant put the scrolls around a door to mark Chinese New Year.  In the same year, his brother was stabbed when several men tried to force their way into the family house in the middle of the night to rob it. 

9. In February 1998, Indonesia was suffering an economic and political crisis, unemployment and inflation were increasing and rioting was occurring in various parts of the country which resulted in some people being killed and many being arrested.  The applicant told the Tribunal that the security forces did little, if anything, to control the rioters and only tried to suppress the violence when it was too late.  One day, some people came to the applicant’s business, damaged the door, assaulted the applicant and his brother and looted some goods. The applicant’s other siblings, who were working elsewhere, were not harmed.

10. The applicant feared for his safety and when he discovered that he could not renew his passport or obtain a visa for Australia, he paid an agent to obtain a false passport, which he used to enter Australia.  He told the Tribunal that his parents closed the business after the incident in February 1998 and they had not re-opened it, although they owned the premises in which it operated in addition to their adjoining residence.  He said that his six siblings still lived in Semarang and worked as employees in other businesses. 

11. The applicant provided the Tribunal with certificates which indicated that he had become a Christian in 1995.  The applicant told the Tribunal that although his application form stated that he was Buddhist, this was a mistake.  He told the Tribunal that he went to church in Australia.  The Tribunal pointed out that it appeared from the evidence that he attended Jehovah’s Witness meetings, although he described his denomination as “Protestant”.  The applicant said that he had never been harmed because of his Christianity in Indonesia, but he had heard that churches had been burned down in Surabaya in Eastern Java in 1996.

12. The applicant told the Tribunal that if he returned to Indonesia, he would not be able to live a normal life and would be worried every day.  He said that the situation was unstable,  the authorities were unable to control it, and that there had been ongoing riots and violence directed at ethnic Chinese people.  He told the Tribunal that the Chinese were still targeted for discrimination regardless of new laws introduced by President Abdurrahman Wahid and he feared that his safety was at risk because he was Chinese and a Christian.

    The Tribunal’s reasoning

13. The Tribunal set out relevant principles of law which applied to the applicant’s claims and referred to relevant country information in considerable detail.  The Tribunal accepted the applicant’s explanation for travelling to Australia with a false passport.  It found that he was an Indonesian citizen and was outside his country of nationality, that he had a Chinese heritage and was a Christian.

14. The Tribunal noted that the applicant said that he had never experienced any direct harm as a result of his Christianity and said that the available information did not support a general view that Christians were at real risk of persecution in Indonesia on account of their religion, although individual and local circumstances could not be overlooked.  After referring to specific country information in relation to religious discrimination in Indonesia, the Tribunal said that apart from the ongoing and serious conflict between Christians and Muslims on Ambon, information from various sources that referred to sporadic attacks on churches in parts of Java indicated that attacks were aimed at property rather than people.  The Tribunal was satisfied that the situation in Ambon was peculiar to the Ambonese people and did not indicate that the applicant would face a real chance of persecution as a result of his religion.  The Tribunal concluded:

    “Having regard to the Applicants’ own history and the available evidence, including attacks on churches that have taken place in East Java, and accepting that the Applicant is a Christian, the Tribunal concludes that he can pursue his Christian religious practises if he returns to Indonesia, without a real chance of being prevented from doing so or otherwise being persecuted for reason of his religion.”

15. The Tribunal then turned to the claims that the applicant and his family had been harmed because they were ethnically Chinese.  The Tribunal considered that the incident in 1995 where the applicant’s father was hit and ceremonial paper scrolls were torn during the Chinese New Year celebrations was an isolated incident, and having regard to amendments to laws restricting Chinese cultural events, there was no more than a remote chance that it might be repeated. 

16. The applicant told the Tribunal that he did not have any difficulty as a result of being Chinese, at least until his passport expired in 1997.  The applicant said that he had used his passport to visit Singapore and did not renew it in 1997 because he had no reason to leave the country at that stage.  The Tribunal noted that the applicant’s only other specific claim that he or his family members had been personally harmed because they were Chinese was the incident in February 1998 (par 9).

17. The Tribunal said it was plausible that sometime after unrest in February 1998 the applicant’s family business was attacked and that the applicant and his brother and father were assaulted.  The Tribunal noted that no other family members were harmed in the places where they were working and that there was no claim that family members had been harmed since the incident in February 1998, although the family continued to reside at the same premises.

18. The Tribunal recognised that the Indonesian authorities had pursued social and economic policies that had the effect of disadvantaging ethnic Chinese and said that there was no reason to doubt that the applicant had been affected by some of those government policies.  The Tribunal then noted that since the applicant left for Australia, the current government had demonstrated a genuine commitment to protecting the rights of the Chinese and had repealed many of the rules that restricted their right to pursue cultural, religious and linguistic interests.

19. The Tribunal noted that it was not uncommon that expressions of anger at poor economic or social conditions were turned into anti-Chinese protests.  The Tribunal then referred in detail to the trouble in Indonesia in early 1998 and the treatment of ethnic Chinese.  In particular, it referred to country information which described discrimination against Indonesia’s Chinese community and attacks by Indonesians on Chinese businesses, shops and houses.  The Tribunal discussed the rioting in Jakarta in May 1998 which ultimately saw the resignation of President Suharto and his replacement by the then Vice-President Habibie.  The Tribunal referred to country information which indicated that during the riots in Jakarta, Medan and Solo in May 1998, Chinese shops, businesses, homes, and vehicles were damaged, Chinese-Indonesians were robbed, assaulted and raped and the authorities’ handling of the riots varied within locations and over time.

20. The Tribunal referred to more recent country information from the Department of Foreign Affairs and Trade contained in its Country Information Report No 180/99 of 28 April 1999, which noted that ongoing arrest in Indonesia posed a risk to the physical well‑being of ethnic Chinese Indonesians and said, in part:

    “Sino-Indonesians continue to have reasonable grounds to fear for their property and physical safety should civil disorder again break out in Indonesia.  But the risk needs to be kept in perspective.  The size of the community is in the region of 6 million people, and only a very small proportion would have been physically attacked, or have had their property seized illegally or damaged.   The overall probability of suffering such a fate would not be high.  The statistical base would not permit any scientific assessment of the probabilities, nor would be the inherent uncertainties of the situation.  As a very rough rule of thumb, we would doubt whether at any one time there would be a more than a five percent chance any individual member of the ethnic group would be at risk of physical attack, unless there was a generalised breakdown in law and order.  That said, the risk remains randomly distributed through the community, and little could be done to predict where or when violence might break out.  There is nothing to suggest that a Sino-Indonesian returning from overseas, even if they sought protection on the basis of having been subjected to some form of violence in the past, would be more vulnerable to attack than persons who had remained in Indonesia continuously.

    Violence against Sino-Indonesians has not taken place as a result of state policy, rather it is a result of random rioting and civil unrest.”

21. The Tribunal then reached the following conclusions:

    ·Indonesia had witnessed an historic record of systematic, low key anti‑Chinese discrimination, partly as a consequence of official policy and partly as a consequence of popular prejudice;

    ·Indonesia was currently still enduring a period of economic crisis that was the genesis of demonstrations against the regime of former President Suharto, which had sometimes evolved into rioting and looting;

    ·Although the initial cause of the demonstrations was due to frustration with the economic situation in Indonesia, there was sufficient evidence to found a conclusion that some Chinese people were deliberately victimised because of their ethnicity, even if they were also resented for their real or perceived wealth;

    ·The economic crisis was ongoing and new political crises appeared to be emerging with the unexpected election of Abdurrahman Wahid as President and his apparent failure to deal with the economic crisis, and developments in East Timor and other areas such as Kalimantan, Irian Jaya, Ambon and Aceh;

    ·The possibility that there would be more demonstrations could not be ruled out as remote, nor could the possibility that such demonstrations might become violent and result in attacks on the ethnic Chinese and other minority groups;

    ·In general, the security apparatus of the State extended the protection it had available to all citizens, regardless of their ethnicity;

    ·In some circumstances, the location, size and nature of the demonstrations rendered the State security system unable to protect all potential victims of the protestors.

22. The Tribunal then made further significant findings which merit setting out in full:

    “In terms of the Convention, there are instances when Chinese are attacked for reason of their ethnicity, regardless of the initial motivation for protesting, and there are instances when the State is unable to protect victims of attacks.  The evidence does not suggest that people of Chinese ethnicity are generally subjected to physical attacks, are generally excluded from education or employment, face serious impediments or restrictions on their movements or to their livelihood or are otherwise generally subjected to a degree of discrimination that amounts to persecution, notwithstanding some discriminatory legislation.  Nor does it suggest that those people are denied State protection during periods of civil order.  The people who might be at an increased risk of being victimised are those with a profile of being relatively wealthy or those who are perceived to be responsible for price increases in consumer items, such as shopkeepers, many of whom are ethnic Chinese.  They are at increased risk when protests get out of control, there are insufficient security forces to handle them and potential victims have not foreseen trouble or acted to move away from focal points of protest such as shopping centres.  It does not follow, however, that the risk such people face necessarily amounts to persecution or that there is a real chance it will occur.

    …

    Current information indicates that the security forces have relatively strong control of the situation on [sic] Java, particularly in larger cities, although the Chinese who are in some provincial or remote villages may still face risks because there is no adequate security apparatus to give them immediate protection in the event of spontaneous attacks.  It appears that the security forces can usually provide personal safety but, in some instances, cannot protect property that is under attack by rioters.  The ongoing economic and political crises and the current crises in the former Indonesian province of East Timor and in Sumatra and other provinces indicate that Indonesia will remain unstable for some time.  One of the issues for the Tribunal is to determine whether, in that context, there is a real chance the Applicant’s fears will come to fruition.  While it can generally be said that Indonesia faces instability and some violence, its future is largely unpredictable.”

23. Having made these findings and reached these conclusions, the Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations and found that the applicant did not meet that criterion for the purposes of granting a protection visa. The Tribunal expressed its conclusion in the following terms:

    “In all of the circumstances, the Tribunal is satisfied that any chance that the Applicant might number among the victims of serious harm inflicted on him for reasons of his race is no more than remote.  The closure of the family business, the sporadic and unpredictable nature of outbreaks of riots that include anti-Chinese conduct, the containment of such outbreaks to relatively small areas, the possibility of avoiding those areas or otherwise obtaining protection and the ability of security officials to protect most Indonesian citizens in times of such crises, all support a conclusion that there is not a real chance he might be persecuted in the foreseeable future for a Convention reason.

    The Tribunal is satisfied that he can return to Semarang or other parts of Indonesia where he does not face a real chance of persecution and can obtain affective protection from the State if he fears there might be an outbreak of anti-Chinese rioting.  The Tribunal is aware that Indonesia currently provides an insecure social environment for its citizens, but it concludes that there is not a real chance the Applicant faces persecution on account of his Chinese race or Christianity of  [sic] for any other Convention reason should he return to that country.”

    The review

1. The applicant relied upon the following grounds of review:

   ·the Tribunal failed to set out its reasons relevant to the issue of whether the applicant had a well‑founded fear of persecution for Convention reasons pursuant to s 430 of the Act and, therefore, did not observe procedures required by the Act and the Regulations to be observed in connection with the making of the decision. Reliance was placed on s 476(1)(a) of the Act;

   ·the Tribunal failed to interpret properly and/or apply the test of well‑founded fear of persecution for reasons of race, alternatively failed to interpret properly and/or apply correctly the principles for determining whether any applicant has a well‑founded fear of being persecuted for reasons of race, thereby misinterpreting the applicable law and incorrectly applying the law to the facts as found. Reliance was placed on s 476(1)(e) of the Act;

   ·the Tribunal failed to speculate reasonably about the chance that the applicant would suffer future persecution, thereby misinterpreting the applicable law and incorrectly applying the law to the facts as found. Reliance was placed on s 476(1)(e) of the Act;

   Did the Tribunal fail to set out its reasons?

2. The applicant’s submission that there had been a contravention of s 476(1)(a) of the Act as the Tribunal failed to set out its reasons why it had either decided to reject or place no weight on the material which supported the applicant’s claim to have a well‑founded fear of persecution must be considered in the light of the recent decision of the High Court in Minister for Immigration and Ethnic Affairs v Yusuf (2001) 180 ALR 1. The applicant submitted, in substance, that the Tribunal’s decision demonstrated that it must have decided to reject or place no weight on the material, accepted by the Tribunal, which supported the applicant’s claim to have a well‑founded fear of persecution, yet its written reasons did not reveal its reasoning process why it rejected or placed no weight on that material, nor did the Tribunal indicate that it had rejected or placed no weight on that material.

3. That submission, predicated upon a contravention of s 476(1)(a), cannot be maintained in the light of Minister for Immigration and Ethnic Affairs v Yusuf.  In Yusuf, the majority of the High Court held that s 430(1)(c) of the Act only obliged the Tribunal to set out such findings as it had made on the review and that a complaint that the Tribunal had not made a finding of fact on a material question was not a failure to observe a procedure required by the Act for the purposes of s 476(1)(a) of the Act. The reasoning of the majority applies equally to the obligation of the Tribunal under s 430(1)(b) to set out “the reasons for the decision”. The Tribunal is only obliged to set out the reasons the Tribunal in fact had for reaching the decision. If it sets out reasons which are considered to be inadequate or obscure, that may give rise to other grounds of review under s 476(1) but it does not give rise to a ground of review under s 476(1)(a).

4. McHugh, Gummow and Hayne JJ put the issue succinctly in Yusuf at 17:

   “A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision‑maker. All that s 430(1)(c) obliges the tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.”

5. The applicant relied on the observation of McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 422:

   “In Addo [v Minister for Immigration and Multicultural Affairs [1999] FCA 940], the Court said:

   Section 430(1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made. Accordingly, there was no failure to comply with s 430(1) of the Act.
   …
   It is not necessary, in order to comply with s 430(1), for the tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made.

   In my opinion, this passage correctly sets out the effect of s 430(1)(c) and (d).  However, the obligation to set out ‘the reasons for the decision’ (s 430(1)(b)) will often require the tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings.  Whenever rejection of evidence is one of the reasons for the decision, the tribunal must set that out as one of its reasons.  But that said, it is not necessary for the Tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal.  Indeed, to do so would be contrary to the direction in s 420 …”

   This observation is of no assistance to the applicant, not only because of the reasoning in Yusuf, but also because the Tribunal did not reject the evidence which the applicant contended supported his claim to have a well‑founded fear of persecution.  Rather, particularly in the passage set out in par 23 above, the Tribunal gave its reasons why, notwithstanding the material upon which the applicant relied, it concluded that there was not a real chance that the applicant would face persecution on account of his Chinese race or his religion if he returned to Indonesia.  The Tribunal did not ignore the relevant country information.

6. It is fair to say that the material to which the applicant has referred in support of this submission is cogent, persuasive and compelling and it might be said that it is surprising it did not lead the Tribunal to the conclusion that the applicant had a well‑founded fear of persecution. Nevertheless it is not for me, exercising jurisdiction under Pt 8 of the Act, to sit in judgment on the merits of the Tribunal’s consideration and conclusions. As Mc Hugh, Gummow and Hayne JJ pointed out in Yusuf (supra) at 22:

   “No doubt full weight must be given to s 476(3) and the limitations which it prescribes in the construction of improper exercise of power in para (d) of s 476(1). Equally, however, it is important to recognise that these limitations, unlike those prescribed by s 476(2), are limitations on only one of the grounds specified in s 476(1). All this being so, there is no reason to give either para (b) or para (c) of s 476(1) some meaning narrower than the meaning conveyed by the ordinary usage of the words of each of those paragraphs. In particular, it is important to recognise that, if the tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it ‘exceeds its authority or powers’. If that is so, the person who purported to make the decision ‘did not have jurisdiction’ to make the decision he or she made, and the decision ‘was not authorised’ by the Act.

   Moreover, in such a case, the decision may well, within the meaning of para (e) of s 476(1), involve an error of law which involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found.  That it cannot be said to be an improper exercise of power (as that expression is to be understood in s 476(1)(d), read in light of s 476(3)) is not to the point.  No doubt it must be recognised that the ground stated in para (e) is not described simply as making an error of law.  The qualification added is that the error of law involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found.  That qualification emphasises that factual error by the tribunal will not found review.  Adopting what was said in Craig, making an erroneous finding or reaching a mistaken conclusion is not to make an error of law of the kind with which para (e) deals. That having been said, the addition of the qualification to para (e) is no reason to read the ground as a whole otherwise than according to the ordinary meaning of its language. If the tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found. If that is so, the ground in s 476(1)(e) is made out.

   Paragraphs (b), (c) and (e) would thus each be engaged in such a case and the Federal Court would have jurisdiction under Pt 8 of the Act to review the tribunal's decision. …”

   Although the Tribunal’s reasoning, on one view, may have given insufficient weight to the material to which the applicant has referred, the Tribunal has not in its reasons identified a wrong issue, asked itself a wrong question, ignored relevant material or relied on irrelevant material.

   Did the Tribunal misinterpret or misapply the definition of refugee and the test of well founded fear?

7. The applicant referred to a number of passages in the Tribunal’s reasons in relation to country information which the applicant submitted supported his claim of a prospective well‑founded fear of being persecuted for reasons of race (see for example pars 19, 20 and 21 above).  The applicant submitted that, after setting out this country information and finding that generally Indonesia faced instability, some violence and a future which was largely unpredictable, the Tribunal proceeded to negate these propositions in relation to the applicant and concluded that, in the circumstances, it was “satisfied that any chance that the Applicant might number among the victims of serious harm inflicted on him for reasons of his race is no more than remote”, without stating whether it rejected the country information.  The applicant submitted that the Tribunal’s findings of instability, violence and unpredictability supported the applicant’s claim of a well‑founded fear of being persecuted, and the Tribunal misapplied the real chance test as there was no basis for a finding which disregarded the inference that the unpredictability affirmed rather than negated the applicant’s claims.  It was put that the failure of the Tribunal to take account in any real sense of the substance of the material which pointed to a Sino‑Indonesian in the position of the applicant coming within the terms of the Convention was a further indication of the existence of an error of law in terms of the incorrect interpretation and application of the real chance test.

8. The Minister submitted that the Tribunal did not misapply the real chance test.  Counsel for the Minister referred to several passages in the Tribunal’s reasons in which the Tribunal used the words “real chance”.  In particular, the Minister referred to the passage referred to at par 23 above and submitted that, in that paragraph, the Tribunal clearly applied the real chance test in relation to the applicant and cited a number of factors that were important to it in terms of making an assessment as to whether the applicant might suffer or have a real chance of suffering persecution in the future.

9. Bearing in mind the principles in relation to the role of the Court on review of a Tribunal’s decision:  Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, I do not consider that the Tribunal failed to apply properly the definition of refugee and the test of well‑founded fear. The Tribunal considered the country information and made the following findings, in particular, which could be said to support the applicant’s claim:

   ·that the country information was consistent with the applicant’s observation that there was instability in Indonesia;

   ·that there was sufficient evidence to conclude that some Chinese were deliberately victimised because of their ethnicity and that the possibility that there would be more demonstrations could not be ruled out as remote, nor could the possibility that such demonstrations may become violent and result in attacks on ethnic Chinese and other minority groups;

   ·that while it could generally be said that Indonesia faced instability and some violence, its future was largely unpredictable.

10. The Tribunal then proceeded to address the question of whether there was a real chance that the applicant might be persecuted in the foreseeable future for a Convention reason.  The Tribunal addressed the terms of the Convention, summarised the evidence in relation to discrimination against Chinese people generally and considered whether people of Chinese ethnicity generally faced a risk of persecution in Indonesia (par 22 above).  The Tribunal then focused on the applicant’s claims and whether the applicant might have a real chance of persecution.  The Tribunal listed the following factors in support of its conclusion that there was not a real chance that the applicant might be persecuted in the foreseeable future for a Convention reason:

    ·the closure of the family business;

    ·the sporadic and unpredictable nature of outbreaks of riots that include anti‑Chinese

    conduct;

    ·the containment of such outbreaks to relatively small areas;

    ·the possibility of avoiding those areas or otherwise obtaining protection;

    ·the ability of security officials to protect most Indonesian citizens in times of such crises.

11. These passages in the Tribunal’s reasoning show that it did not fail to apply the real chance test in relation to the applicant. That the country information referred to by the Tribunal appeared to support the applicant’s claims of racial discrimination against Chinese people generally and unrest in Indonesia, does not lead automatically to the conclusion that the applicant had a well founded fear of persecution. The country information was generalised information and the Tribunal was required to determine whether the applicant himself faced a well-founded fear of being persecuted for a Convention reason. The Tribunal made this determination, in particular, in pars 22 and 23 above. Accordingly, the Tribunal did not fall into an error of law for the purposes of s 476(1)(e) of the Act.

12. The applicant contended that the Tribunal’s finding in relation to whether the applicant had a well-founded fear was based on a finding of remoteness of harm which in turn was based on what the Tribunal saw as the sporadic and unpredictable nature of the outbreaks, the containment of outbreaks to relatively small areas, the possibility of avoiding those areas or otherwise obtaining protection and the ability to protect most Indonesian citizens, which findings the applicant disputed as irrelevant or incorrect in the applicant’s case.  The Tribunal did not fall into an error of law in making these findings.  In essence the applicant was seeking to review the merits of the Tribunal’s decision and was contending that the Tribunal should not have reached the conclusion it reached having regard to the material before it and the cogency of that material.  In this context I refer again to the passage in Yusuf at par 29 above.  In the present context, the Tribunal’s reasoning in relation to its consideration and appreciation of the test whether the applicant had a well‑founded fear of persecution and the “real chance” test does not show that it identified a wrong issue, that it asked itself a wrong question, that it ignored relevant material or that it relied on irrelevant material.  The Tribunal’s reasoning shows that it took the correct approach to determining whether there was a real chance that the applicant would suffer persecution if he returned to Indonesia.

    Did the Tribunal fall into error of law in that it failed to speculate reasonably about the chance that the applicant would suffer future persecution?

13. The applicant submitted that the Tribunal fell into an error of law by failing to speculate reasonably about the chance that the applicant would suffer persecution in the future, bearing in mind the strength of the country information which supported the applicant’s claims and the Tribunal’s own reasoning process.  The applicant sought to extend the obligation to speculate reasonably to apply in circumstances where country information which points in different directions was under consideration. 

14. The applicant relied upon Minister for Immigration and Multicultural Affairs v Guo (1997) 191 CLR 559 and Minister for Immigration and Multicultural Affairs v Rajalingham (1999) 93 FCR 220 in which the Court considered the circumstances in which a decision-maker may be required to take into account the chance that past events occurred, even though the decision‑maker has found that those events probably did not occur, in determining whether there is a well-founded fear of persecution in the future. In Minister for Immigration and Ethnic Affairs v Guo (supra) the majority of the High Court (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ) said at 576:

    “It is true that, in determining whether there is a real chance that an event will occur or will occur for a particular reason, the degree of probability that similar events have or have not occurred or have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future.  If, for example, a Tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well‑founded fear of future persecution.

    In the present case, however, the Tribunal appears to have had no real doubt that its findings both as to the past and the future were correct.  That is, the Tribunal appears to have taken the view that the probability of error in its findings was insignificant.  Once the Tribunal reached that conclusion, a finding that nevertheless Mr Guo had a well‑founded fear of persecution for a Convention reason would have been irrational.  Given its apparent confidence in its conclusions, the Tribunal was not then bound to consider whether its findings might be wrong.”

15. In Minister for Immigration and Multicultural Affairs v Rajalingham (supra), Sackville J said at 240:

    “I think, with respect, that it is more accurate to see the requirement discussed in Wu Shan Liang and Guo as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a ‘well founded fear of being persecuted’ for a Convention reason. The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision‑maker thinks that they probably did not. In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute ‘an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found’.”

    His Honour said at 241:

    “Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT’s failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur).  If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.”

16. The applicant sought to extend this principle so that the ground of error of law may be made out on the basis of a failure of the decision‑maker to speculate reasonably where the country information points in different directions, and the decision‑maker fails to turn its mind to the chance that past events which have occurred could properly support a conclusion of well-founded fear in the future.  The applicant submitted that the Tribunal foreclosed reasonable speculation about the chances of a hypothetical future persecutory event occurring were the applicant to return to Indonesia.

1. The applicant’s submission was a refinement or extension of the principles in Minister for Immigration and Ethnic Affairs v Guo (supra) and Minister for Immigration and Multicultural Affairs v Rajalingham (supra).  It was not suggested that the Tribunal had any doubts about the occurrence of past events.  Indeed the Tribunal accepted that the past events relied upon by the applicant and the past events referred to in the country information had occurred.  Rather, it was submitted that there was such a body of material which supported the existence of a well‑founded fear of persecution that the Tribunal, if it had turned its mind to the material, must have had some doubt and if it had such doubt, it should have gone through the process of expressing and taking into account that doubt.  The applicant appeared to be saying that the material before the Tribunal was such that even though it was satisfied that there was not a real chance that the applicant faced persecution for a Convention reason should he return to Indonesia, the Tribunal was nevertheless required to speculate as to the consequences for the applicant if it was wrong in that conclusion.

2. Counsel for the applicant accepted that the submission was not supported in any of the cases and was novel.  Properly analysed, the submission was that there was such a body of material which pointed towards the existence of a well‑founded fear of persecution, that the Tribunal should have turned its mind to the possibility of there being doubt. 

3. I do not accept the applicant’s submission.  The Tribunal recognised the proper test to apply as to whether there was a real chance that the applicant might suffer persecution in the future for a Convention reason.  The Tribunal accepted that at the time of its decision Indonesia faced instability and that its future was “largely unpredictable”.  However in the passage referred to in par 23 above, the Tribunal explained why it did not accept that the applicant faced such a real chance.  It is implicit in the Tribunal’s reasoning that it had projected into the future and formed a view as to the future.  In short, the Tribunal turned its mind to past events and evaluated the risk that in the future there would be a real chance of persecution of the applicant for a Convention reason.

4. The nature of the country information was such that one can understand the submission made by the applicant as that information was cogent and compelling.  But the Tribunal nevertheless explained why it did not reach the conclusion that the applicant had a well‑founded fear of persecution for a Convention reason.  It was not required to speculate as to what might be the position if it was wrong in its conclusion that there was not a real chance that the applicant would face persecution for a Convention reason if he returned to Indonesia as it had made a finding to the opposite effect.

5. The applicant’s complaint was, in effect, that the country information was so overwhelming that it inevitably led to a conclusion in favour of the applicant.  To review that conclusion and to substitute an answer in favour of the applicant is to overturn the Tribunal’s decision by re‑evaluating the merits of the decision and by attributing a lack of logical reasoning to the Tribunal.  Neither of these conclusions gives rise to review by the Court where there is no discernible error of legal principle by the Tribunal. 

6. This was not a case where the Tribunal failed to take into account the chance that past events might have occurred in circumstances where it found that those events probably did not occur (see par 40). Accordingly, the principles in Minister for Immigration and Multicultural Affairs v Guo (supra) and Minister for Immigration and Multicultural Affairs v Rajalingham (supra) are not directly applicable. 

7. Even if the principles discussed in those cases were to be extended as submitted by the applicant, I am satisfied that the Tribunal did not fail to speculate reasonably as to the future in the manner contended by the applicant. As discussed above, the Tribunal applied correctly the principles for determining whether the applicant had a well‑founded fear of persecution. The Tribunal recognised that there was evidence of past events which was supportive of the applicant’s claims and its analysis referred to at pars 21 to 23 above shows that the Tribunal had regard to past events, including the instability and violence in Indonesia and the anti-Chinese discrimination, in concluding that the applicant did not have a well‑founded fear of persecution. The Tribunal addressed the issue of whether there was a real chance that the applicant might be persecuted in the foreseeable future and, for the reasons referred to at par 33 above, the Tribunal concluded that it was satisfied that the chance that the applicant might have serious harm inflicted on him for reasons of his race was no more than remote. Accordingly, the Tribunal did not fall into error of law within s 476(1)(e) of the Act.

8. The application for an order for review will be dismissed with costs.

I certify that the preceding forty‑seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Associate:

Dated:             18 July 2001

Counsel for the Applicant:	J A Gibson
Solicitor for the Applicant:	Erskine Rodan & Associates
Counsel for the Respondent:	M E Kennedy
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3 May 2001
Date of Final Submissions:	11 July 2001
Date of Judgment:	18 July 2001