SZBHW v Minister for Immigration

[2005] FMCA 521

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBHW v MINISTER FOR IMMIGRATION [2005] FMCA 521

MIGRATION – Review of decision of RRT – where applicant does not attend hearing before Tribunal – where Tribunal is unable to obtain clarification of applicant’s claims – where Tribunal relies on country information – whether Tribunal considered all integers of applicant’s claim.

Migration Act 1958, s.91R

NASTand NASUvMinister for Immigration [2004] FCA 86
SZANR v Minister for Immigration [2004] FCA 1075
S58 of 2003 v Minister for Immigration [2004] FCA 283

Applicant: SZBHW

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG1719 of 2003

Judgment of: Raphael FM

Hearing date: 13 April 2005

Date of Last Submission: 13 April 2005

Delivered at: Sydney

Delivered on: 13 April 2005

REPRESENTATION

Counsel for the Applicant: Mr A Kumar

Counsel for the Respondent: Ms R Francois

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs assessed in the sum of $4,250.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1719 of 2003

SZBHW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Indonesia.  She arrived in Australia on 11 May 2002.  On 14 May she lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.  On 24 June 2002 a delegate of the Minister refused to grant a protection visa and on 25 July 2002 the applicant applied for a review of that decision.

2. On 2 May 2003 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to her application but it was unable to make a favourable decision on that information alone.  The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 18 June 2003.  On 16 May 2003 the applicant advised the Tribunal in writing that she did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear before it.  On 1 July 2003 the Tribunal determined to affirm the decision not to grant a protection visa and handed down that decision on 30 July 2003.

3. The applicant's claim to have a well founded fear of persecution for the Convention reasons of religion and race were articulated in her responses to questions 40-44 of her original application found at [CB 17-19].  The applicant is a Christian ethnic Chinese who became caught up in the riots in Indonesia that occurred in May 1998.  She stated that she witnessed the whole process, many churches were burned and many Chinese Indonesians were robbed and beaten.

4. She said that the Government did not do anything to control the situation.  She said that she did not have enough food and she could not work.  She had to hide here and there to avoid being beaten. She was hurt mentally and physically (in her leg).  She claimed a continuing fear of returning to Indonesia in case the rioting recurred and did not believe that the President at the time, then Mr Habibi, was able to do anything to protect her.

5. It is important for a determination of this case to note that on 4 June 2002 there was sent by registered post to the applicant and her migration agent a letter which invited her to an interview with an officer of the department and which contained a significant amount of information concerning the riots that the applicant had complained of and reports from independent sources of changes in the situation in Indonesia since the date of those riots.

6. At [CB 66] the delegate sets out under the heading, Issues and Comments, a number of matters which might lead him to decline to grant a protection visa to the applicant.  These include a view that whilst acknowledging the persistence of anti-Chinese sentiment significant changes to the position of Chinese Indonesians since May 1998 had occurred.  It was not accepted that all Chinese Indonesians are in danger of persecutory treatment.

7. The comments went on to add that the applicant may well have an ability to relocate and that the delegate believed that the military and police were now better placed than in 1998 to protect Chinese Indonesians whether of Christian or other religious persuasions.  The applicant did not attend before the delegate who made a decision not to grant a protection visa. 

8. When the applicant applied to the Tribunal for review of the decision of the delegate it would have been clear to her that there were serious issues which she had not attempted to respond to and which had been resolved against her by the delegate.  She would have realised that these were matters that would have to be taken up with the Tribunal if she had any prospects of success before it.  She did not do this.  She submitted her application stating only

   If (sic) worried about my safety in Indonesia, therefore, I came to Australia for protection. As a Chinese Indonesian, I cannot enjoy the same human rights as other a usual person.  Whenever turmoil happens in Indonesia, we are the ones that suffer because of our race.  We suffer from race discrimination in Indonesia.  My application for a protection visa was refused by DIMIA as the officer did not believe the Indonesian Government cannot provide protection to us. I hope that my application can be reassessed at RRT.  Thank you.

   As I previously noted the applicant did not attend before the Tribunal.

   The Tribunal's findings and reasons are very short.  The relevant parts are as follows:

   “If the applicant had attended the hearing before the Tribunal I would have asked her to provide further details concerning all aspects of her claim.  If she had attended the hearing I would have asked her whether relocation was a reasonable option for her.

   The Tribunal accepts the above cited independent evidence because it is detailed, up to date and independent.  On the strength of this evidence, the Tribunal finds that the attacks against the Chinese and the Christians in Indonesia have been random and sporadic in nature, and that the applicant could access state protection against future violence on these grounds.    The Tribunal also finds that since the beginning of 1999 there had been virtually no reports of anti-Chinese violence in Indonesia,  the chance that the applicant would suffer persecution now on this ground is remote.  Therefore, the Tribunal finds that the chance that the applicant would suffer harm now or in the reasonably foreseeable future because of being a Chinese or a Christian is remote.”

   The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention.”

9. The Tribunal has set out between [CB 87] and [94] a significant part of the relevant country information upon which it relies.  This information had also been before the delegate.  What the Tribunal did in the absence of any representations from the applicant herself, apart from those are contained in her original application which was before the Tribunal.  I was to compare those representations with the independent country information and decide that on the basis of that information any fears expressed by the applicant were not well founded.  The Tribunal did not deny the veracity of anything said by the applicant but it came to the conclusion that those fears related to the situation in 1998, that there had been no riots or similar occurrences since the beginning of 1999 and that any future recurrence was unlikely and would not be such that the state organisations could not protect her.

10. The applicant comes to this court complaining that the approach of the Tribunal was in error. She says that the Tribunal totally failed to consider her application and the evidence that she had provided, because no single reference to those claims was made by the Tribunal before rejecting her application. She says that the Tribunal did not consider whether she would suffer discrimination in employment amounting to serious harm under s.91R of the Migration Act 1958 (the “Act”).  She says that the Tribunal did not consider whether she had a well-founded fear of being persecuted by the Indonesian Government or elements within it.

    The duty of the Tribunal in a case such as this was set out with precision by Allsop J in NASTandNASUvMinister for Immigration [2004] FCA 86. His Honour said at [6]:

    “[6]  My task in an application such as this is to ensure that the Tribunal has approached the matter lawfully so that it can be assessed one way or the other whether the claims of the applicants have been lawfully and properly considered. What it is necessary to understand is that the Tribunal is given the task of coming to a state of satisfaction. It either is satisfied of all relevant matters or it is not satisfied of all relevant matters. The most important consideration for it, and the one relevant here, was whether it was satisfied that the applicants had a well-founded fear of persecution under the Refugee Convention.

    [7] Pursuant to the statute, if the Tribunal is satisfied of all relevant things it must grant a visa. Also, if the Tribunal is not satisfied of all relevant things, it must not grant a visa. Here, the Tribunal had the claims of the applicant in writing before it. It gave notice of a hearing to the applicant because the Tribunal said that it was not satisfied on the papers alone of the version of events given by the applicant.

    [8] The applicant did not attend the hearing of the Tribunal.” 

    The position of the Tribunal when an applicant does not attend was also considered by Wilcox J in SZANR v Minister for Immigration [2004] FCA 1075 where at [7] his Honour said:

    “The appellant chose not to take advantage of the Tribunal's invitation to attend an appointed oral hearing.  As might be expected, and as the reasons for the decision of the Tribunal record, his absence presented the Tribunal with difficulties in fully appreciating his claim for refugee status.  However, the Tribunal did not dismiss his application for review on that simple basis.  The Tribunal considered all the documentary material that had been provided by the appellant.  It was not persuaded by the material to accept the appellant's claim to have a well-founded fear of persecution if he was returned to his native country”.

    The matter was also considered by the Full Court in S58 of 2003 v Minister for Immigration [2004] FCAFC 283 where their Honours said at [25]:

    “The applicant was given an invitation to attend a hearing before the Tribunal which apparently on advice he deliberately declined.  Having done so, he is to be taken to have assumed the risk that inconsistencies, omissions or other unsatisfactory features of his documents would be noted by the Tribunal without his having an opportunity to explain or clarify them.  Conversely, his conduct left it open to the Tribunal to infer that, had he attended a hearing and given oral evidence, the appellant would not, on balance, have improved his case for the grant of a protection visa.  In our view, the duty of the Tribunal, in the circumstances of this case, was no higher than that identified in these terms by the Full Court in WACO v Minister for Immigration [2003] FCAFC 171 at [33] ........

    In our view, the appellant was offered the opportunity to appear before the Tribunal to address any concerns it may have had about his claims and to put forward the documents upon which he relied.  He cannot complain if his application was rejected because, among other reasons, he failed to take up that opportunity.”

11. I think this discussion of the affects of non-attendance deal with the applicant's suggestion that the remark made by the Tribunal that “if she had attended the hearing it would have asked her for further details concerning all aspects of her claims” indicated that the Tribunal had not considered all aspects of her claims.  I do not believe this is an argument she can make in the particular circumstances of this case where the Tribunal indicates that it had before it all the papers before the delegate including, of course, the only piece of information upon which the applicant made any claims whatsoever; namely her original application to which I have already referred.  I am also satisfied that the Tribunal fully understood the purport of those claims because it reproduced the contrary independent country information in some detail.

12. In regard to the complaint that the Tribunal did not consider the possibility of serious harm under s.91R(1)(b) of the Act which relates to inability to obtain employment I am satisfied that the Tribunal would have noted the claim made at [CB 17] in the context of what occurred in May 1998. There is no further reference to employment and as the applicant remained in Indonesia for a further three years after May 1998 the Tribunal was entitled to infer that she did not suffer from discrimination in employment thereafter.

13. Because the independent country information indicated to the Tribunal that the situation for ethnic Chinese Christians in Indonesia had improved by the time it came to consider this application the Tribunal was unable to be satisfied that this applicant held a well-founded fear of persecution for the Convention reasons of race or religion. That was a finding it was entitled to come to on the basis of the evidence before it. The applicant had done nothing to assist the Tribunal to come to any other decision although she must have known full well what the difficulties were in her path. I can see no grounds upon which the Tribunal could be accused of falling into jurisdictional error in the manner in which it came to that conclusion and I must therefore dismiss this application. I order that the application be dismissed and that the applicant pay the respondent's costs which I assess in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: