SZDFA v Minister for Immigration

[2005] FMCA 1246

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDFA v MINISTER FOR IMMIGRATION [2005] FMCA 1246

MIGRATION – Refugee – claims based on applicant husband’s political opinion – whether reference to husband’s former Refugee Review Tribunal application amounted to a breach of s.424A – common law procedural fairness – no reviewable error.

Migration Act 1958, ss.424A(1), 422B, 441A
Federal Magistrates Court Rules 2001, r. 21.02(2)(a)

Minister for Immigration and Ethnic Affair v Al Shamry (2001) 110 FCR 27

Applicant: SZDFA

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 978 of 2004

Judgment of: Nicholls FM

Hearing date: 31 August 2005

Date of Last Submission: 17 August 2005

Delivered at: Sydney

Delivered on: 5 September 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr. T Reilly

Solicitors for the Respondent: Australian Government Solicitors

ORDERS

1. The application is dismissed.

2. The applicant to pay the respondent’s costs, set in the fixed amount of $4000, pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 978 of 2004

SZDFA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application filed on 5 April 2004 seeking review of the decision of the second respondent, the Refugee Review Tribunal (“the Tribunal”) made on 21 December 1999, and notified to the applicant by letter dated 21 December 1999, which affirmed the decision of a delegate of the respondent Minister made on 29 June 1998 to refuse a protection visa to the applicant. [The application to the Court refers to the “Migration Review Tribunal” but it is clear in all the circumstances that the reference should be to the “Refugee Review Tribunal”.]

2. The applicants before the Tribunal are mother and child and both are citizens of Indonesia. The applicants’ claims are set out in the application to the first respondent’s Department for a protection visa (Court Book 9 to CB 25), in an attachment at CB 26 to CB 27, in the application for review to the Tribunal lodged on 28 July 1998 reproduced at CB 54 to CB in 59, and in particular, in a statement at CB 56 to CB 57. The applicant mother also attended a hearing before the Tribunal, and the Tribunal's account of what occurred at the hearing is at CB 75.9 to CB 76 .8. The applicants before the Tribunal are mother and young child. Only the mother made refugee related claims and before me, only the mother (“the applicant”) has sought review of the Tribunal's decision. In her written statement to the Tribunal the applicant claimed that she had been the victim of harassment, intimidation and persecution by Indonesian authorities because of her husband’s involvement with the leftist groups the “PKI” and “PRD” in Indonesia (CB 56.2). Previously in her application to the first respondent's Department she claimed to have been terrorised by youths and other criminal gangs associated with the ruling Golkar Party and military personnel because of her husband's involvement in what was described by her as “subversive activities” with a leftist group who were campaigning to overthrow the present government of Indonesia. In the setting out of the applicant's claims and evidence in its decision record the Tribunal noted the claims in her submissions, that her husband had been involved with the PKI and PRD in Indonesia and that she had experienced harassment, intimidation and discrimination as a result (CB 75.8). The Tribunal also, in reference to her claims, noted that the applicant's spouse, who had arrived separately in Australia, had been the subject of consideration by the Tribunal, differently constituted, which found on 18 November 1997 based on what he had claimed (copy of different Tribunal decision record at CB 1 to CB 8) that he had been a member of yet another group, the PDI in Indonesia, which had been in opposition to the then government.

3. In its “Findings and Reasons” the Tribunal:

   1)Accepted the applicant's claim that she had been harassed in Indonesia in 1996 because of her husband's political affiliations. (CB 76.8)

   2)Noted that it was unclear from her evidence what those political affiliations were. (CB 76.8)

   3)Noted that the applicant's claims at the hearing it conducted with her, that her husband was a member of the Suryadi faction of the PDI and that the claims that the pro-Megawati faction of the PDI were harassing the family, was consistent with what the husband himself had admitted before the earlier different Tribunal. (CB 76.9)

   4)Found that as the applicant's husband did not claim to have been connected with the PKI or PRD in what had been put before the earlier Tribunal, and that the applicant before it was unable to expand on, or substantiate, these claims at the hearing before it, that it could not accept that the family was in any way connected with these parties. (CB 76.9)

   5)That there was no evidence before the Tribunal of a general crackdown or suppression of PDI members, although there had been violent clashes in relation to PKI faction clashes in July 1996. The Tribunal relied on independent country information and in particular the US State Department country report of 1996. (CB 77.1)

   6)The Tribunal found that there was no evidence before it which suggested that persons were at risk of systematic harassment, discrimination or persecution simply because they were or had been supporters or members of the PDI. It noted that it remained one of Indonesia's three authorised political parties and that on independent country information available to it, the situation in Indonesia had changed dramatically since the applicant and her husband, had departed Indonesia. In found that the PDI (in context plainly incorrectly, referred to as “PKI”) played an important and substantial role in the government. (CB 77.3)

   7)The Tribunal also looked at a claim made on the applicant's behalf by her brother at the hearing before the Tribunal, that she would be discriminated against because she is of Arab descent, and found that there was no evidence before the Tribunal which indicated that this would be so. (CB 77.5)

4. In an amended application filed on 12 November 2004 the applicant put forward four complaints expressed as particulars:

   “1)The RRT failed to make findings on whether the Applicant would continue to be persecuted by the youth movement of Golkar if she returned to Indonesia.

   2)The RRT failed to make findings on whether the Applicant would continue to be persecuted by members of factions of the PDI opposed to the faction of the husband if she returned to Indonesia.

   3)The RRT makes no clear findings as to who was harassing the applicant.

   4)The RRT did not sufficiently consider the Applicant's claims regarding ethnicity."

5. The applicant appeared unrepresented at the hearing before me today. She was assisted by an interpreter in the Indonesian language and in support of her claims, stated that the Tribunal did not ask her questions about the political parties in Indonesia, and that her children had suffered with the thought of going back to Indonesia.

6. Mr. Reilly for the respondents submitted that the Tribunal's decision turns on purely factual matters and raises no questions of law. The submission is that the applicant claimed to fear harm from gangs associated with the ruling Golkar Party because of the husband's membership with the PDI, and because of her being of Arab descent. The Tribunal accepted that the applicant had been harassed in 1996 because of the husband's political affiliations of the PDI, but noted country information at the time of its decision that the PDI was part of the Indonesian government and that the applicant's view of persecution for this reason was not well founded. The Tribunal also found no evidence to support her claims of fear of harm on racial grounds.

7. At the hearing before me, I sought further submissions from Mr. Reilly in relation to the applicant's claims as set out in her statement to the Tribunal at CB 56, that her husband had been involved with the PKI and PRD in Indonesia. In relation to the claim involving the PDI the Tribunal made a clear finding as set out above and I cannot see any error in how the Tribunal approached this aspect of the applicant's claims. To this extent I agree with submissions by Mr. Reilly that no error of law is raised. In relation to what was contained in her written claims that she put to the Tribunal, that the husband had been connected with the PKI or PRD and that she suffered harm as a result of the association with her husband, the Tribunal's record referred, at CB 76.9, to:

   “The fact that she claimed at hearing that the pro-Megawati faction of the PDI were harassing the family suggests that her husband was a member of the Suryadi faction, as he indeed admitted before the earlier Tribunal. As he did not claim to have been connected with the PKI or the PRD, and the applicant was unable to expand on or substantiate these claims at hearing, I cannot accept that the family was in any way connected with these parties.”

8. In the context of having before me an unrepresented applicant and seeking to discern whether any other ground of review that was evident on the material before me, I sought submissions from Mr. Reilly as to whether the Tribunal relied on any information, being information as to the applicants husbands claims, as reported by the Tribunal before which he appeared and whether this was information for the purposes of s.424A(1) and whether the Tribunal was required to put such information to the applicant pursuant to that section. In this regard I note that the Tribunal's decision was made on 21 December 1999. This clearly predates the introduction of s.422B of the Migration Act in July 2002 which is expressed as making the requirements in Division 4 of Part 7 of the Act an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with. Mr. Reilly made two submissions in this regard. The first, in outline, was that a failure to make a claim is not information for the purposes of s.424A. The argument was that given the full Federal Court decision in Minister for Immigration and Ethnic Affair v Al Shamry (2001) 110 FCR 27, made the distinction between the application for a protection visa before the respondent’s Department and the application for review before the Tribunal. However, there was a line of cases which address the issue of the absence of claims put before the respondent’s Department, as being an impression formed by the Tribunal and not information for the purposes of s.424A(1) of the Act, and that the Tribunal's qualitative assessment of information is not information for the purposes of s.424A(1) of the Act. It is not necessary to pursue this as I do accept Mr. Reilly's second submission which was that the integral elements of the applicant’s clarified claims were matters that the applicant herself put to the Tribunal at the hearing it conducted with her. In this regard the applicant’s statements at the hearing with the Tribunal and in her written statement attached to her application to the Tribunal, which made a reference to matters before the respondent’s Department, (see in particular CB 56.8 to CB 57.3) was all information that fell within s.424A(3)(b) of the Act and therefore was not required to be put to the applicant pursuant to s.424A(1). It is clear that the applicant in the written submissions to the Tribunal made reference to a number of sources of fear of harm related to her husband's possible involvement with various political parties. Given the nature of her claims it was appropriate for the Tribunal, at that the hearing before it to try and clarified with the applicant exactly what political affiliations her husband had which were the sources of the claimed fear of harm. In this regard the Tribunal, based on the statement at the hearing it conducted with the applicant that:

   “… it was the pro-Megawati faction who terrorised us, and members of Golkar.”  (CB 76.3)

   made a clear finding that the applicant’s husband had been a member of PDI and that, what the applicant was putting was that it was factional fighting within that party that caused the claimed fear of harm. In relation to the possibility that her husband had been associated with the PKI or the PRD, the Tribunal clearly found arising out of the hearing with the applicant that she was unable to substantiate the fact that her husband was associated with the PKI, and that she claimed that she knew nothing of politics, and little about her husband as it had been “an arranged marriage”. Further, in relation to the PRD the applicant was unable to put anything before the Tribunal other than the bare claim that the husband had been a member of the PRD. In this regard, on the reading of the Tribunal's decision record, it was the applicant's own statements at the hearing before the Tribunal, in the context of the Tribunal seeking to clarify written statements made by the applicant, (albeit against a background also of what was in the decision record of the different Tribunal) and her inability to substantiate some of claims made in the written statements, that led the Tribunal to making the findings that were consistent with the material before it, and also with the other Tribunal's decision record, that the applicant husband was a member of PDI and was not a member of PKI or PRD.

9. In relation to any applicable principles of common law procedural fairness it is clear that the Tribunal discussed these issues with the applicant at the hearing it held with her, and on the Tribunal's unchallenged record of what occurred at the hearing before it, the applicant cannot say that she was unaware of the likelihood of the Tribunal making the findings that it did. I should just note that at the hearing before me the applicant claimed that the Tribunal did not ask her questions about her situation in Indonesia. In this regard the applicant has not brought before the Court any evidence to challenge the Tribunal's account of what occurred at the hearing as set out in its decision record. The applicant made written statements to the Tribunal and the Tribunal sought to clarify at the hearing the exact sources and circumstance of the claimed fear of harm. It asked the applicant how she had been intimidated and harassed and the exact nature of her husband’s political affiliation. In the context of her statement that she knew nothing of politics, but that it was the pro-Megawati faction that terrorised them the Tribunal was entitled to find that her claims as clarified were that she feared harm from other factions within the PDI because of her husband’s involvement in factional politics within the PDI and not because of an involvement with any other political party.   

10. In relation to the applicant's specific claims now:

    1)The applicant claims the Tribunal failed to make a finding on whether the applicant would continue to be persecuted by the youth movement of Golkar upon return to Indonesia. The applicant's claim of fear of harm in this regard clearly arose from her claims that she had been terrorised by the youths associated with Golkar as a result of her husband's involvement with anti-Indonesian government activities. At the hearing before it, the Tribunal established from what the applicant said and from what she was unable to substantiate, that the husband's involvement was with the PDI. The Tribunal dealt with this issue and found that there was no evidence which suggested that persons who were or had been supporters or members of the PDI were at risk and found that the PDI played an important and substantial role in government and that fear of persecution for reason of political opinion on this basis was not well founded. This was open to the Tribunal on the information before it, and the Tribunal's finding encompassed the applicant’s claim to fear harm from the youth movement of Golkar as the claim was that they were acting on behalf of the authorities.

    2)The applicant claims the Tribunal failed to make a finding on whether she would continue to be persecuted by members of other factions of the PDI opposed to the faction of her husband, if she returned to Indonesia. The Tribunal did adequately deal with this claim when it said in its decision record that there was no evidence before it which suggests that persons are at risk of systematic harassment, discrimination or persecution simply because they are, or have been, supporters or members of the PDI. In any event, it does not appear that the applicant ever made any such claim to the Tribunal of fearing harm from these other factions within PDI.

    3)The applicant complains that the Tribunal made no clear findings as to who was harassing her. Clearly it is for an applicant to put forward the circumstances of their claims of fear of harm of persecution. The applicant made reference to being the victim of harassment, intimidation and persecution by the Indonesian authorities. In her statement to the first respondent’s Department she had been visited by the local authority and terrorised by youth gangs acting on behalf of the government. The Tribunal specifically sought to clarify those claims as to who was harassing her (CB 76.2), and her husband’s exact political affiliation which she had put forward as the reason for the harassment. To the extent that it said that it was unclear from her evidence what the husband’s political affiliations were, which gave rise to the question as to who was harassing the applicant. Given the state of the applicant's evidence to the Tribunal, beyond the identification of the youth gangs acting for the authorities, no other identifiable source of harm is evident, other than the reaction by the Indonesian government which the Tribunal dealt with. The Tribunal dealt with the situation that the applicant put to it as “clarified” at the hearing, as I have found above.

    4)The applicant claims the Tribunal did not sufficiently consider her claims regarding ethnicity. In this regard these claims were made almost as an afterthought by the applicant's brother at the hearing before the Tribunal. There does not appear to be anything raised by the applicant herself in all of the statements that she has made before the Tribunal, but in any event the Tribunal adequately dealt with this issue as raised on her behalf when it found that there was no evidence before it which indicated that this would be a problem for the applicant. (CB 77.5)

11. The applicant in seeking review of the delegate’s decision put a statement to the Tribunal making a number of claims, including putting before the Tribunal parts of the delegate’s decision record. In all the circumstances the Tribunal sought to clarify with the applicant at the hearing before it the exact nature of the fear of harm and in particular the exact nature of her husband's political affiliations which were said to be at the centre of the fear of harm. In relation to the one claim which the applicant was able to substantiate, that is, that her husband was involved with the PDI, and was a member of a faction which was caught up in factional differences with the pro-Megawati faction, the Tribunal made a clear finding that the possibility of persecution for reasons of the political opinion was remote. The Tribunal also found that the applicant was unable to substantiate any other political affiliations on the part of her husband which could be said to give rise to any other political difficulties. The Tribunal also looked at the applicant’s claim, to the extent that it was put, in relation to a claim of discrimination because of her Arab descent, and found that that there was no evidence before the Tribunal which would indicate that this would be the case. For the reasons above I can see no error in how the Tribunal approached its task and made its decision. There is no jurisdictional error and accordingly the application is dismissed.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  Sybilla Waring-Lambert

Date:  5 September 2005