SZDBK & Anor v Minister for Immigration & Anor

Case •

[2007] FMCA 1582

•

25 September 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDBK & ANOR  v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1582

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizens of Indonesia claiming fear of persecution as Christians of Chinese ethnicity – Tribunal must consider circumstances at the time of the hearing – no reviewable error.

PRACTICE & PROCEDURE – Court has no power in making an order in the nature of mandamus to prescribe the venue of a hearing by the Refugee Review Tribunal – Court will not assist parties to engage in “forum shopping”.

PRACTICE & PROCEDURE – documents – affidavits – requirements for documents – a document must be printed with type at least 10 point or hand-printed clearly with ink in a way that is permanent and can be photocopied to produce a copy satisfactory to the registrar – handwritten affidavit should not have been accepted for filing.
Migration Act 1958 (Cth) ss.36, 65, 91R, 474
Federal Magistrates Court Rules 2001 r.2.01
SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 followed
Minister for Immigration & Multicultural & Indigenous Affairs v QAAH of 2004 [2006] HCA 53 followed.
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 followed.
Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 22 CLR 1; 205 ALR 487 followed.
First Applicant: SZDBK
Second Applicant: SZDBL

First Respondent:

 MINISTER FOR IMMIGRATION AND CITIZENSHIP
Second Respondent:  REFUGEE REVIEW TRIBUNAL
File Number: SYG 1888 of 2007
Judgment of: Scarlett FM
Hearing date: 6 September 2007
Date of Last Submission: 6 September 2007
Delivered at: Sydney
Delivered on: 25 September 2007

REPRESENTATION

Applicants: In person
Solicitors for the Applicant: Not legally represented
Counsel for the Respondent: Ms Clegg
Solicitors for the Respondent: Sparke Helmore

ORDERS

  1. The Application is dismissed.

  2. The Applicants are to pay the First Respondent’s costs fixed in the sum of $5,000.00.

  3. I allow six (6) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1888 of 2007

SZDBK

First Applicant

SZDBL

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. The Applicants, who are citizens of Indonesia, ask the Court to set aside a decision of the Refugee Review Tribunal signed on 9th May and handed down on 22nd May 2007. The Tribunal affirmed a decision of the delegate of the Minister not to grant the Applicants protection visas. They had applied for protection in Australia as Indonesians of Chinese ethnicity.

  2. They Applicants also seek an order in the nature of mandamus remitting their application to the Refugee Review Tribunal for determination according to law. They also ask the Court for an order that the Refugee Review Tribunal hear the matter in Melbourne, rather than Sydney. The Applicants live in Sydney. The Federal Magistrates Court has no power to direct where a hearing of the Refugee Review Tribunal is to be held. That is a matter for the Principal Member of the Refugee Review Tribunal (see SZEPZ v Minister for Immigration and Multicultural Affairs[1]).

    [1] [2006] FCAFC 107

  3. The Applicants rely on these three grounds:

    a)The Tribunal failed in its obligation to find in relation to harm or mistreatment that the Applicant would suffer during anti-Chinese disturbances.

    b)The Tribunal misinterpreted or misapplied the law to the facts.

    c)The Tribunal erred in its understanding of protection for the purposes of the Refugees Convention by whether or not (the authorities) had a willingness to protect the Applicant in fact no one authority tried to protect or even to stop barbarian acts during the riots.

Background

  1. The Applicants are a husband and wife. They are Chinese by ethnicity and Christian by religion. They arrived in Australia on 1st October 1996 and applied for Protection (Class AZ) visas on 29th October of that year. The First Applicant claimed that he was scared to live in Indonesia because he was of Chinese descent. He claimed that he was constantly being asked for money by Muslim ethnic Indonesians. On one occasion, when he did not have any money to give, he claimed to have beaten up. He claimed to fear harm from extremist Muslims if he returned to Indonesia.

  2. The Second Applicant made no separate claims for protection. She completed a Part D form as she was applying as a member of the First Applicant’s family unit.

The Delegate’s decision

  1. On 14th June 1997 a delegate of the Minister for Immigration and Multicultural Affairs refused the Applicants’ applications. The delegate found:

    While I accept that the applicant[2]  may have been the target of serious harassment, I have difficulty in concluding those responsible were motivated by other than criminal intention. It is a socio-economic reality that crime is prevalent throughout Indonesia and this contention is supported by a variety of third-party information. On the basis of the evidence provided by the applicant, I consider that it would be reasonable to conclude that his circumstances are merely derivative of the poor socio-economic conditions prevailing in Indonesia and a corresponding dissatisfaction on the part of the general populace. That is, the applicant was targeted for reasons of his employment and concurrent wealth, not for reasons of who he is.[3]

    [2] i.e. the first applicant

    [3] Court Book at 31

  2. The delegate also found that even if the Applicant had been imbued with the profile of being anti-Islam and the general anti-Chines sentiment made him insecure as to his personal safety, he may reasonably seek protection and redress through the relevant authorities in Indonesia.

  3. The delegate went on to find that:

    The independent evidence does support the contention that there is widespread racial discrimination towards people of Chinese descent in Indonesia. I am satisfied that there is a course of systematic discrimination in relation to certain aspects of employment opportunities, education and religion, directed at those of Chinese ethnicity in Indonesia. However, the independent evidence does not suggest that people of Chinese ethnicity are excluded from employment or that they face serious impediments or restrictions to their livelihood. Indeed, the applicant has received an education more than equivalent to minimum standards and was employed as a technician for twelve years prior to his departure for Australia. Thus, the applicant’s education and employment histories do not suggest that he has experienced discrimination amounting to persecution in those areas.[4]

    [4] Court Book at 31-32

Application for Review by the Refugee Review Tribunal

  1. The Applicants applied to the Refugee Review Tribunal for a review of the delegate’s decision, but the Tribunal affirmed that decision on 20th March 1998. The Applicants then sought judicial review of the Tribunal decision. On 2nd May 2006 the Federal Magistrates Court set the Tribunal decision aside and remitted the matter to the Tribunal for determination according to law.

  2. The Tribunal invited the Applicants to attend a hearing on 1st August 2006. On 31st August 2006 the Tribunal handed down its decision. Affirming the delegate’s decision not to grant the Applicants protection visas.

  3. The Applicants again sought judicial review of the decision of the Tribunal. On 6th February 2007 the Federal Magistrates Court set aside the Tribunal decision and remitted the matter to the Tribunal.

  4. The Tribunal invited the Applicants to attend a hearing on 20th April 2007. The Applicants’ adviser forwarded a Response to Hearing Invitation to the Tribunal, advising that the First Applicant wished to attend and would need the assistance of an interpreter in the Bahasa Indonesia language.

  5. On 19th April 2007, the day before the hearing, the Applicants’ adviser forwarded a witness list and a number of statements from various individuals to the Tribunal. The adviser forwarded other documentary evidence, saying:

    We note the evidence confirms that people in Indonesia such as the applicants face a real chance of being persecuted as proselytising Christians and or of Chinese ethnicity.[5]

    [5] Court Book at 137

  6. Both Applicants attended the hearing, accompanied by their migration agent. The First Applicant gave evidence, as did the pastor of the Applicants’ church.[6]

    [6] Court Book at 178

  7. The Applicants’ adviser wrote to the Tribunal on 7th May 2007, referring to a report commissioned by the UNHCR entitled “Indonesia: Minorities, Migrant Workers, Refugees, and the New Citizenship Law”. In his letter, the adviser pointed out that the report was silent on the treatment of proselytising Christian Indonesians of Chinese ethnicity. He submitted that:

    a)it would be appropriate for the RRT to ask the UNHCR to provide comment on the situation of that particular social group; and

    b)given that the report did not address the situation of proselytising Christians of Chinese ethnicity, it should not be used to determine that the Applicants did not have a well-founded fear of persecution.[7]

    [7] Court Book at 168

The Refugee Review Tribunal Decision

  1. The Refugee Review Tribunal handed its decision on 22nd May 2007. The Tribunal affirmed the decisions not to grant the Applicants Protection (Class AZ) visas.

  2. A copy of the Tribunal Decision Record can be found at pages 174 to 188 of the Court Book. In that decision, the Tribunal set out the claims and evidence under these headings:

    a) Background to the case.

    b) The current Tribunal (differently constituted to previous two Tribunals).

    c) Post-hearing.

    d) Independent evidence. 

  3. The Tribunal considered the claim of the First Applicant to be engaged in proselytising about Christianity. The Tribunal challenged the First Applicant, saying:

    The Tribunal asked the applicant[8] if he was indicating that he would go onto the streets of Jakarta and talk to people about Christianity; and furthermore that[9] he thinks that this action will cause problems for himself. He agreed, saying that there are too many people teaching bible studies within churches in Indonesia, but not many who teach on the streets. The Tribunal put it to him that he had never proselytised in this way before in Indonesia: it had been firmly established that he spoke only to people with whom he had at least a casual acquaintance. Even if he did speak to them on the street, it was not the equivalent of preaching on the streets, or accosting strangers, or activities that could be called ‘teaching on the streets’. The Tribunal also put it to him that he had not engaged in any proselytising during the last ten years in Sydney. He did not respond to these points.[10]

    [8] Again meaning the first applicant

    [9] sic

    [10] Court Book at 180

  4. The Tribunal noted that it had given a copy of the report entitled Indonesia: Minorities Migrant Workers, Refugees and the New Citizenship Law to the Applicants’ adviser. The Tribunal also acknowledged the adviser’s submission that the report should not be used to determine that the Applicants did not have a well-founded fear in Indonesia. The Tribunal then set out two extracts from the report, headed:

    ·    4.3 Recent Developments (Ethnic-Chinese Indonesians)

    ·    5.3 Recent Developments (Religious Minorities)

  5. The Tribunal’s Findings and Reasons are set out on pages 184 to 187 of the Court Book.

  6. The Tribunal found that the Applicants are citizens of Indonesia and assessed their claims against Indonesia. The Tribunal also noted that only the First Applicant had made refugee claims.

  7. The Tribunal accepted that the First Applicant is of Chinese ethnicity and is a practising Christian. It also accepted that he attended an Assembly of God church in Jakarta prior to leaving Indonesia in 1996.

  8. However, the Tribunal did not accept that the First Applicant engaged in proselytising or “street preaching” activities in Jakarta, but was prepared to accept that he had initiated conversations about Christianity with some of his acquaintances. The Tribunal stated:

    The Tribunal notes that the applicant has only in this hearing – more than ten years since he lodged his claims for a protection visa – mentioned this type of activity, presenting it in a more active light as ‘teaching in the streets’. The applicant has now claimed that it is his involvement in this more public practice of Christianity that puts him at risk if he were to return to Indonesia. When this oversight (not making such claims earlier) was put to him, he said that he had had too many problems and could not say everything. The Tribunal rejects this explanation, noting that he had attended two hearings before two differently-constituted Tribunals, at both of which he had been given ample opportunity to put forward anything of relevance.

    The Tribunal notes that the applicant’s church work in Sydney does not involve any proselytising. He occupies himself wholly within his Christian church.[11]

    [11] Court Book at 185

  9. The Tribunal considered the UNHCR report from which it had quoted and stated that it had reached the view that “the report is reliable and independent”[12]. Relying on the report, the Tribunal was satisfied that:

    The chance that harm amounting persecution befalling the applicant – a man of Chinese descent, living and working in Jakarta – for reason of his race is remote.[13]

    [12] Court Book at 186

    [13] Ibid.

  10. The Tribunal also considered the First Applicant’s Christianity, again referring to the report. The Tribunal found that:

    The chance of serious harm befalling the applicant for reason of his Christianity is remote.[14]

    [14] Ibid.

  11. The Tribunal went on to find that the First Applicant had not suffered harm amounting persecution in the past for reasons of his race or religion, or any other Convention ground. The Tribunal also found that the chance that harm of that nature would befall him in the reasonably foreseeable future was remote.

  12. The Tribunal was not satisfied that the First Applicant had a well-founded fear of persecution for a Convention reason. As the Tribunal was not satisfied that the First Applicant satisfied the criterion set out in s.36(2) of the Migration Act for a protection visa, it followed that the Second Applicant, his wife, could not satisfy the alternative criterion and therefore could not be granted a protection visa also.

Application for Judicial Review

  1. The Applicants commenced proceedings in this Court on 15th June 2007 by filing an application and affidavit in support. They filed a further affidavit by the First Applicant on 7th August 2007. It is handwritten and barely legible. It does not comply with Rule 2.01, which provides that documents should be printed with type at least 10 point or hand-printed clearly in ink in a way that is permanent and can be photocopied to produce a copy satisfactory to the Registrar. It should not have been accepted for filing.

  2. Making the best of the document, it appears to say, relevantly:

    Until now I just able to submit some of the evidence relevant to my claim and I was unable to submit all the evidence in relation to our application due to difficulties in contacting relevant department at Indonesia as well as most of the evidence had been lost, destroyed or misplaced.

    I just more send a little more evidence and also evidence already gave to the last hearing as well.

    I still believe we are a Refugee. We meet requirements of Refugee status 1A (2) Convention.

    We are the person need International protection.

    So we want to hear again and remitted to RRT but if possible we want RRT hearing in Melbourne for the fairness result.

  3. The Applicants did not seek to tender any fresh evidence at the hearing. In any event, a Court undertaking judicial review of a decision of the Refugee Review Tribunal cannot consider fresh evidence going to the merits of the Applicant’s case for refugee status.

  4. As to the request in the affidavit for another Tribunal hearing to take place, but this time in Melbourne “for the fairness result”, I understand this to mean that the Applicants believe that they will obtain a fairer hearing before the Refugee Review Tribunal in Melbourne. I have previously indicated at [2] above that the question of the venue and constitution of a hearing of the Refugee Review Tribunal is a matter for the Principal Member, not for the Court. In any event, the Court will not assist parties to engage in “forum shopping”.

  5. The Applicants rely on these grounds of relief:

    a)The Tribunal failed to find in relation to harm or mistreatment that the Applicant would suffer during anti-Chinese disturbances.

    b)The Tribunal misinterpreted or misapplied the law to the facts.

    c)The Tribunal erred in its understanding of protection for the purposes of the Refugees Convention (meaning state protection).

  6. The Applicants did not file any outline of submissions. Both Applicants attended Court. The First Applicant told the Court that because the incidents leading to his leaving Indonesia had happened a long time ago and the hearing had happened comparatively recently he had difficulty remembering the details.

  7. The First Applicant said that the Department of Immigration and Multicultural Affairs and the Refugee Review Tribunal should consider what had happened 11 years ago rather than the current situation in Indonesia.

  8. He also made a submission that goes more to humanitarian considerations. The parties have a daughter who has been living in Australia since she was 5 years old. She is now 15 years of age. Although she was born in Indonesia, the Applicants’ daughter does not speak Indonesian very well. She has attended high school in Australia and will complete her education this year. The First Applicant exhorted the Court to make a fair decision, noting that the family have lived in Australia for 11 years.  

  9. The Second Applicant told the Court that the situation in Indonesia is quieter than it was when they left. What they experienced before they left was pretty traumatic. She did not want her child to be subjected to that sort of fear. The Refugee Review Tribunal can say that Indonesia is safe but the trauma is still there.

  10. Ms Clegg of counsel appeared for the Respondent Minister. She submitted that the Tribunal had not committed a legal error. As to the Applicants’ claim that it was unfair to consider country circumstances at the present time when the incidents which caused the Applicants to leave Indonesia happened a long while ago, she submitted that the Tribunal is obliged to consider the circumstances at the time the application is heard (see Minister for Immigration & Multicultural & Indigenous Affairs v QAAH of 2004[15]).    

    [15] [2006] HCA 53 at [43]

  11. As to the question of the Tribunal’s failure to consider, or consider correctly, the availability of state protection, Ms Clegg submitted that the Tribunal had found that the First Applicant did not suffer harm, at least for a Convention-related reason. The mandatory consideration of state protection only arises if there is a finding of a possibility of harm.

  12. In reply, the First Applicant complained that his application should have been heard by the Tribunal earlier. The fact is that he has had three Tribunal hearings since he arrived in Australia. In the cases of the first two hearings, they led to decisions which were set aside by order of the Court on judicial review.

Conclusions

  1. The Applicants’ first ground is that the Tribunal failed in its obligation to find in relation to harm or mistreatment that the Applicants would suffer during anti-Chinese disturbances.

  2. Whilst counsel for the Minister was of the view that the Applicants’ grounds are “confusing and nonsensical”[16] I consider that the first ground is no more than an invitation to the Court to indulge in a merits review of the Applicants’ case. It is well established that the task of fact-finding is one for the administrative decision-maker. It is no function of the court to second-guess the Refugee Review Tribunal on matters of fact or judgment; the court can only correct the Tribunal if jurisdictional error is revealed (SZHCJ v Minister for Immigration and Multicultural Affairs[17]).

    [16] First Respondent’s outline of submissions at [17]

    [17] [2007] FCA 205 at [3]

  1. In this case, the Tribunal considered all the Applicants’ claims but relied on Independent country information to reach the conclusion that the likelihood that the First Applicant would suffer harm on return to Indonesia because of his Chinese ethnicity or his Christian religion was remote. The Tribunal considered and rejected the submission by the Applicants’ adviser that the UNHCR report should not be used to decide whether or not the Applicants had a well founded fear of persecution in Indonesia. It was open to the Tribunal to form this view. The weight that the Tribunal attaches to Independent country information is a matter for the Tribunal (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs[18]).

    [18] [2004] FCAFC 10 at [11]

  2. The Applicants’ first ground fails.

  3. The Applicants claim that the Tribunal misinterpreted the law or misapplied the law to the facts. My reading of the Tribunal Decision Record shows that the Tribunal has clearly set out the requirements of sections 36(2), 65(1) and 91R of the Migration Act. The Tribunal also discusses the criteria for the grant of a Protection (Class AZ) visa in Part 866 of Schedule 2 to the Migration Regulations 1994 (Cth). No error is disclosed.

  4. The Applicants are not legally represented in these proceedings, so it is incumbent on the Court to consider whether the decision shows any misinterpretation or misapplication of the law that might lead to jurisdictional error.

  5. There is no breach of s.424A of the Migration Act. The Tribunal based its decision on the Applicants’ own evidence and Independent country information, both of which are excluded from the operation of s.424A(1) by the provisions of s.424A(3).

  6. There is no breach of s.425. The Tribunal invited the Applicants to attend a hearing to give oral evidence and to present arguments in support of their case. The First Applicant attended and gave evidence with the assistance of an interpreter in Bahasa Indonesia. The Tribunal also heard the evidence of a witness. There was no procedural unfairness at the hearing. The Tribunal decided the matter on the same bases that the delegate had done in 1997.

  7. This ground fails.

  8. The Applicants claim that the Tribunal erred in its understanding of protection for the purposes of the Refugees Convention, meaning state protection. It is not a requirement that the Tribunal should be satisfied that the Applicant’s country of nationality must guarantee that its citizens will be safe from violence at all times (see Minister for Immigration and Multicultural Affairs v Respondents S152/2003[19]).

    [19] (2004) 222 CLR 1; 205 ALR 487 at [16]-[26]

  9. In any event, the Tribunal was not satisfied that there was any more than a remote chance of serious harm befalling the First Applicant for a Convention reason in the reasonably foreseeable future. Thus, the issue of state protection did not arise.

  10. This ground of review fails.

  11. I am satisfied that the Tribunal did consider the Applicants’ claims. It did not fall into error by considering the situation in Indonesia at the time of the hearing rather than eleven years previously.    

  12. There is no arguable case for any jurisdictional error that the Applicants have not raised. In the absence of jurisdictional error, the Tribunal decision is a privative clause decision as defined by s.474 of the Migration Act. Consequently, it is not subject to orders in the nature of certiorari or mandamus. The Tribunal decision is final and conclusive and there are no grounds for setting it aside.

  13. The Applicants have raised a number of humanitarian considerations in their submissions to the Court. Whilst the Court has sympathy for their plight, the Court has no power under the Migration Act to take those considerations into account. It is solely within the discretion of the Minister for Immigration and Citizenship to consider matters of that nature under s.417 of the Migration Act.

  14. The application will be dismissed with costs.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  18 September 2007


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Cases Citing This Decision

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Cases Cited

5

Statutory Material Cited

2

SZEPZ v MIMA [2006] FCAFC 107
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53
SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205