SZBLS v Minister for Immigration
[2005] FMCA 848
•16 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBLS v MINISTER FOR IMMIGRATION | [2005] FMCA 848 |
| MIGRATION – Review of decision of RRT – whether the Tribunal failed to have regard to country information that was favourable to the applicant – whether the Tribunal considered the specific situation of the applicant – whether the Tribunal provided a written statement as to its decision in compliance with section 430 of the Migration Act 1958. |
| Migration Act 1958, s.91R, s430 |
| Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Abebe v The Commonwealth; Re Minister for Immigration and Multicultural Affairs; ex (1999) 197 CLR 510 |
| Applicant: | SZBLS |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1913 of 2003 |
| Judgment of: | Raphael FM |
| Hearing date: | 16 June 2005 |
| Date of Last Submission: | 16 June 2005 |
| Delivered at: | Sydney |
| Delivered on: | 16 June 2005 |
REPRESENTATION
| Solicitors for the Applicant: | Mr A Kumar |
| Counsel for the Respondent: | Ms T Wong |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant pay the respondent’s costs assessed in the sum of $4,250.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1913 of 2003
| SZBLS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Indonesia, he arrived in Australia in April 2002 and applied for a protection (class XA) visa on 14 May 2002. He was invited but did not attend an interview with a delegate who on
24 June 2002 determined that he was not a person to whom Australia owed protection obligations. The applicant sought review of that decision by the Refugee Review Tribunal on 25 July 2002. The Tribunal wrote to the applicant on 1 May 2003 advising him that it had considered the material before it in relation to his application but was unable to make a decision in his favor on that information alone.
It invited the applicant to a hearing on 9 July 2003. The applicant completed a response to hearing invitation in which he indicated that he did not wish to attend a hearing. On 29 July 2003 the Tribunal determined to affirm the decision of the delegate and it handed that decision down on 21 August 2003.The applicant's claims to have a well founded fear of persecution by reason of his race and religion arise out of the fact that he is an ethnic Chinese person living in Indonesia. He claimed to the Tribunal that he had left the country because he was worried that if he continued to stay in Indonesia some people in the Indonesian Government would persecute him. He also made reference to the May 1998 riots in Indonesia and that he had not been able to work because of his race and religion. He claimed that his leg had been hurt in the 1998 riots and that he did not believe he would receive adequate State protection from the Indonesian authorities. He gave no other specific references to persecution for actions which could constitute persecution within the definition of that term in section 91R of the Migration Act.
In its findings and reasons the Tribunal noted that it was required to be satisfied that a person is a refugee and quoted from the judgment of Kirby J in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 where his Honour said:
“…the mere fact that a person claims fear of persecution for reasons of political opinion does not establish either the genuineness of the asserted fear or that it is "well-founded" or that it is for reasons of political opinion. It remains for the Minister in the first place to be "satisfied" and, where that decision is adverse and a review is sought, for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out.”
The Tribunal noted that no particulars of the claim concerning people in the Indonesian Government had been provided by the applicant. The applicant not having attended before either the delegate or the Tribunal it was difficult for either of those authorities to obtain any further information. The obligation to provide such information is clearly on the applicant even though he is not required to shoulder any burden of proof. As their Honours Gummow and Hayne JJ said in Abebe v The Commonwealth; Re Minister for Immigration and Multicultural Affairs; ex (1999) 197 CLR 510 at 187:
“The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.”
I cannot see any grounds alleging a jurisdictional error when the Tribunal indicated that it was not satisfied that this ground had been made out.
The Tribunal then considered the more general alleged fears of the applicant and tested them against independent country information which was in its possession. It noted that although the applicant had expressed fears for his employment he had remained in employment all the way through the riots in 1998 until 2002, in a relatively sophisticated occupation as a television station technician. The independent country information indicated that the admittedly unsatisfactory situation for ethnic Chinese in Indonesia which existed in 1998 had, by that time, substantially diminished. The Tribunal utilised the independent country information to come to a conclusion that there was not a real chance that the applicant would suffer persecution involving serious harm as required by paragraph 91R(1)(b) of the Migration Act in the context of outbreaks of civil unrest that have occurred in recent years in Indonesia.
The Tribunal noted that a particular piece of country information indicated that there would not be more than a 5 per cent chance that individual ethnic Chinese Indonesians would be physically attacked or would have their property illegally seized or damaged in the context of the sort of outbreaks of civil unrest that have occurred in recent years in Indonesia.
It is important to note that this piece of information was dated April 1999 and since that time the country information indicated that the situation had improved. It was therefore open to the Tribunal to come to the conclusion that it did even though it accepted that even a small risk of harm can constitute a well-founded fear. I can see no error in the manner in which the Tribunal came to that conclusion.
The Tribunal indicated that it had considered the totality of the applicant's circumstances as an ethnic Chinese Indonesian and as a Christian and stated that even taking into account the cumulative effect of these circumstances it did not accept that he had a well-founded fear of being persecuted if he returned to Indonesia now or in the reasonably foreseeable future. It came to that conclusion on the basis of independent country information that was readily available to it and having weighed that information up against the statements of the applicant in his application for a visa, and presumably noting by his non‑attendance that the applicant did not believe that he could have added anything to what had already been said.
Before me today Mr Kumar appeared on behalf of the applicant. Mr Kumar had previously filed an outline of submissions extending to some eight pages seeking to raise possible jurisdictional errors on the part of the Tribunal. Today he relied only on the following matters.
Firstly, Mr Kumar indicated that the Tribunal could have had regard to other country information and that was more favorable to the applicant's claims and that by ignoring this information the Tribunal was in some way in breach of section 430 of the Act. In fact, a reading of the Tribunal's decision at [CB 69] indicates that the Tribunal took into account a considerable quantity of information and balanced it. If the applicant wished the Tribunal to take other matters into account he could have ensured that it did so by either submitting further information or, preferably, by attending and taking advantage of the opportunity which he had to satisfy the Tribunal of his concerns.
The second point raised by Mr Kumar was that the Tribunal did not specifically look at the situation of the applicant. I am afraid that I cannot accept this. The Tribunal decision is not long but it is quite clearly directed at the situation which the applicant indicates was found by him, even though there is some suggestion that the applicant's original submission to the Department had been written for some other person.
Thirdly, Mr Kumar raises a curious argument concerning relocation. The Tribunal did not consider relocation. Relocation was simply not an issue. The Tribunal was not satisfied that this particular applicant was a person who had suffered or was likely to suffer persecution. In those circumstances there was no obligation upon the Tribunal to consider the question of relocation, even though there was mention of it in a favorable manner to the applicant in a DFAT country information report found at CB77.
Finally, Mr Kumar indicated that he did not accept that the Tribunal had complied with section 430 of the Migration Act. This relates to the written statement that is required of the Tribunal as to its decision.
It has four requirements. The first is to set out the decision. This has clearly been done. The second is to set out the reasons for the decision. Mr Kumar has not suggested to me that there are other reasons than those contained in the document so it would appear to me that the Tribunal has done this as well. Thirdly, the Tribunal has to set out the findings on any material questions of fact. To the extent that there are any issues of fact these were dealt with by the Tribunal by setting out the applicant's contentions and explaining why, based upon the independent country information available to it, the Tribunal did not accept them. In this way the Tribunal also referred to the evidence or other material on which the findings of fact were made and thereby determined the matter clearly in accordance with the provisions of subsection 430(1).In all these circumstances I am unable to find any ground upon which the decision of the Tribunal can be impugned on the grounds of jurisdictional error. I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $4250.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM
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