SZCNS v Minister for Immigration - [2007] FMCA 2014

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCNS & ORS v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 2014

MIGRATION – RRT decision – Indonesian claiming political, religious and ethnic persecution – Tribunal not satisfied as to well-founded fear – no jurisdictional error found.

Migration Act 1958 (Cth)

Applicant:

SZCNS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1218 of 2007

Judgment of:

Smith FM

Hearing date:

26 November 2007

Delivered at:

Sydney

Delivered on:

26 November 2007

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the First Respondent:

Ms R Francois

Solicitors for the Respondents:

Clayton Utz

ORDERS

The applicant’s wife and children are included as applicants.
The application is dismissed.
The applicant SZCNS pay the respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1218 of 2007

SZCNS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant SZCNS arrived in Australia in February 1997, and his wife and their first child arrived soon after. They have another child who was born in Australia in 2001. On 20 February 2003 they all applied for protection visas, relying on a claim of the husband to fear persecution if they returned to their country of nationality, Indonesia. I shall refer to the husband as the applicant, but note that I have ordered that the other members of his family are also joined as applicants, since they were parties to the matter before the Tribunal.
The applicant claimed that he feared persecution by agents or former agents of the Indonesian government, who had been responsible for the death of one of his brothers in 1985, when he was detained as a student activist and died in custody. He claimed: “as a consequence, our family has been under constant threat from the Indonesian police”. He also claimed that “as Christians with Chinese background, our family became an easy target every time rioting/lootings happened”. He claimed that as a Christian he was at risk of persecution by Muslims, and that people with Chinese ethnicity and Christian religion had suffered discrimination in Indonesia. His solicitor's submissions also claimed that the applicant was at risk of persecution by Muslim fundamentalists as a person who would be perceived to be a supporter of the West, both because of his Christian, non-Muslim background, and also arising from his period of residence in Australia.
A delegate refused the visa applications on 13 March 2003, and the applicant appealed to the Tribunal, where he was represented by a solicitor in the course of three attempts by the Tribunal to arrive at a valid decision. The first two decisions were set aside by consent in this Court. The third decision of the Tribunal, dated 8 March 2007, was handed down on 20 March 2007, and affirmed the delegate's decision. It is this decision, which I am today reviewing.
The Tribunal clearly identified the applicant's claims in all their ramifications, and addressed them by reference to evidence given by the applicant at three hearings before the Tribunal, and in the light of independent country information concerning the current situation in Indonesia. The Tribunal accepted that the applicant had an ethnic Chinese background and was a Christian. It noted the past history in Indonesia of harm suffered by ethnic Chinese. It noted that discriminatory laws had been repealed, and that the current government of Indonesia had a “real common demonstrated and practical willingness ...to protect ethnic Chinese in Indonesia”. The Tribunal noted that the applicant had a number of siblings who had remained and were still living peacefully in Indonesia, and was not satisfied that the applicants faced a real chance of being persecuted for reasons of being ethnic Chinese.
In relation to the applicant’s religion, considered separately or in combination with his ethnicity, the Tribunal was not satisfied that currently any anti-Christian activities in Indonesia were sustained or systemic or were actively or tacitly being condoned by the state. It noted that the applicant had one younger brother and a sister who exercised the right to worship as Christians in Indonesia. It was not satisfied that the applicants faced a real chance of being persecuted for reason of being Christian. It specifically noted that problems for Chinese Christians in some parts of Indonesia were not experienced to a significant degree in Jakarta, whence the applicant came, and where the balance of his family still lived.
When considering the implications of the applicant being “Westernised”, the Tribunal accepted it plausible that his family might appear to be such to some people upon return to Indonesia. However, it was not satisfied on the evidence before it that there was sustained or systemic harassment of such persons. It noted that Indonesia was a secular state.
The Tribunal addressed the applicant's claims to still have fears of harm arising from the death of his brother in 1985. It noted that his evidence at several hearings of the Tribunal had changed, and that he had sought to place himself as being at special risk compared to other members of his family. It concluded that his evidence was unreliable. Its essential conclusion about the applicant's claims in relation to his brother were:
The Tribunal gives weight to the significant change in socio-political conditions in Indonesia, especially in the 1998 demise of the Suharto regime. The Tribunal finds that whereas the situation for the Applicant and his family might have been tense and uncertain in the years immediately following Freddy’s death, especially after the call for the enquiry, and during that enquiry, these events happened a long time ago, and all attempts by the Applicant to give them currency into the late 1990s, up to the present, and into the reasonably foreseeable future, are dismissed as unreliable and disingenuous.
I accept the submission of counsel for the Minister that, in effect, the Tribunal arrived at a conclusion of fact that it did not accept that the applicant objectively still feared persecution by reason of events which had occurred between 1985 and the applicant's departure to Australia in 1997.
The Tribunal also, before making that finding, indicated a doubt whether the applicant's claims showed the targeting of him by people for a Convention reason. It thought his account of targeting suggested motives of revenge or avoidance of criminals rather than a Convention‑related reason. This reasoning might be open to challenge, but I accept the submission from counsel for the Minister that it did not form a material part of the Tribunal’s reasons for rejecting this part of the applicant's claims.
The Tribunal arrived at an ultimate conclusion that it was not satisfied that the applicants faced a real chance of being persecuted in Indonesia for Convention‑related reasons, and it was not satisfied that they had well‑founded fear of Convention‑related persecution in Indonesia.
I have considered the reasoning of the Tribunal, and its procedures, and have been unable to identify jurisdictional error affecting the Tribunal's decision.
The applicant's original application contained two particulars of grounds which alleged that the Tribunal “applied the incorrect test of persecution Convention purposes”, and that it “misinterpreted and misapplied to law to the facts as found by it a criteria for protection visa”. The particulars are:
Ground 1.…The Tribunal did not take into account circumstance that applicant’s brother D whom left Indonesia and seek refuge in Australia had been granted a protection visa base with the same claims which the applicant claims for (especially regarding the applicant’s brother F’s death).
Ground 2.…The Tribunal misinterpreted and misapplied to the law the evident that applicant’s brother E whom living in Indonesia did not experience significant problems because he is a Moslem currently not a Christian as applicant is.
In relation to the first particular, the applicant complained that the Tribunal did not make the same decision as had been made in 1995 when his brother, D, had been granted protection in Australia. The particular itself refers to a part of the Tribunal's decision where it showed awareness that one of the applicant's brothers had previously been given protection in Australia. I am not persuaded that the Tribunal overlooked that fact when it made its later assessment, as at the date of its decision in 2007, whether the applicant himself had well-founded fears of persecution relating to his brother's death in 1985. The wording of its critical conclusion about this, which I have extracted above, suggests otherwise.
In relation to the second particular, it is unclear to me whether this point was ever specifically put to the Tribunal. It is unclear, because there is no transcript of what was said either by the applicant or his brother in Australia, who attended the hearing held by the Tribunal as last constituted. There is no indication in the material before me that the Tribunal was under any misapprehension as to the Muslim religion of his brother, E. Nor that the Tribunal made any error of fact as to the religion of the applicant's other siblings, including another brother living in Indonesia, who is a Christian. I am not persuaded that this particular in the application shows even an error of fact in the Tribunal's reasoning, and certainly not that it reveals any error of jurisdiction.
The applicant was referred under the free legal advice scheme to a barrister who represented the applicant at a directions hearing before me on 10 July 2007, when I gave leave to the filing of an amended application and evidence. At that stage, the barrister indicated he would be representing the applicant at today’s hearing. However, that did not happen, and the applicant attended today without legal assistance.
An amended application which had been drafted by the barrister was filed in Court. It contains a single ground challenging the Tribunal's lack of satisfaction that the claim to fear persecution arising from the death of the brother, or from the subsequent actions of his family, showed Convention‑related reasons for the harm feared. Particulars given in the amended application draw attention to some of the evidence concerning these claims, and allege generally that there was a failure of jurisdiction affecting the Tribunal's conclusion.
However, I am not persuaded that the Tribunal's doubt about this matter failed to take into account any evidence, and certainly nothing which it was bound to take into account. Moreover, as I have indicated above, that part of the Tribunal's reasoning did not provide a material reason for its rejection of the applicant's claimed fears relating to his brother's death and subsequent events. The Tribunal's essential reason for rejecting those claims was a failure to be satisfied that the applicant now had any well-founded fears arising from these old events.
For the above reasons, I am not satisfied that the Tribunal's decision was affected by jurisdictional error. I must, therefore, dismiss the application.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 5 December 2007