SZDQC v Minister for Immigration - [2004] FMCA 494

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDQC v MINISTER FOR IMMIGRATION

[2004] FMCA 494

MIGRATION [FCoA1]- Review of RRT decision – where applicant requested that the Minister exercise her s.417 discretion before seeking judicial review of the Tribunal’s decision – where application lodged out of time and Minister filed notice of objection to competency – where applicant claimed to have a well-founded fear of persecution for convention reasons of race and religion – where Tribunal determined that the feared harm did not constitute persecution nor did a real chance of future persecution exist – whether findings and reasons of Tribunal evidence jurisdictional error or a denial of procedural fairness.

Migration Act 1958 (Cth), ss.417, 424A(3)(a), 477(1A), (2)
Federal Magistrates Court Rules 2001, P 21 r 21.02(2)(a)

Applicant:

SZDQC

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 1531 OF 2004

Delivered on:

4 August 2004

Delivered at:

Sydney

Hearing date:

4 August 2004

Judgment of:

Raphael FM

REPRESENTATION

Solicitors for the Applicant:

Bharati Solicitors

Counsel for the Respondent:

D Jordan

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the respondent's costs which assessed in the sum of $3,500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1531 of 2004

SZDQC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Indonesia of Chinese ethnicity and Catholic religion. She arrived in Australia on 18 April 1999. On

7 May 1999 she lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. On 4 August 1999 a delegate of the Minister refused to grant a protection visa and on 6 September 1999 the applicant sought review of that decision. The Tribunal offered the applicant an opportunity to address it and a hearing was called for Tuesday 29 February 2000 which the applicant attended. On 7 March 2000 the Tribunal determined to affirm the decision of the delegate and she was advised of this on 23 March 2000.
The applicant did not seek judicial review of the decision of the Tribunal immediately after it had been handed down. She waited until she found herself in the Villawood Detention Centre when on 10 March 2004 she wrote to the Minister asking her to exercise her public interest power under s.417 of the Migration Act 1958 (Cth) (the “Act”) to intervene in the case.
The Minister responded on 16 April 2004 declining to intervene [CB 81] and the applicant waited until 24 May 2004 to file her application for review. It will be readily seen that the application for review was filed well out of time even if one assumes that she did not receive notice of the Tribunal decision until 10 March 2004. The Minister has therefore filed a notice of objection to competency pursuant to ss.477(1A) and 477(2) of the Act.
An objection to competency is only a relevant matter if the court finds that the decision which the applicant is seeking review from is a privative clause decision. It is therefore necessary to consider whether or not the Tribunal has fallen into jurisdictional error in the manner in which it came to the decision before determining the objection to competency.
In this case the applicant claimed to have a well-founded fear of persecution for the Convention reasons of race and religion. She told how in the riots which occurred in Indonesia in May 1998 a horrible tragedy befell her family resulting in psychological strain and material loss. She stated that a church at which she was praying was burnt while she was in it during the incident in the Ketapang area of Jakarta. She gave evidence of concern that she had not had contact with her relatives who had left for Yogyakarta in central Java in November 1999 and feared for their safety. She considered that the situation in Indonesia remained unsafe for persons such as herself.
The Tribunal accepted the applicant as a witness of truth and sets out in some considerable detail between [CB 63] and [CB 74] some independent country information relating to the position of ethnic Chinese, the position of Christians and notably, the situation of Chinese Indonesian women, [CB 73]. The Tribunal dealt with the situation that was current in Indonesia at the time it heard the application.
In its findings and reasons which commence at [CB 75] the Tribunal said:
“The Tribunal is prepared to accept the applicant's evidence that she has in the past felt intimidated as a member of Indonesia's Chinese minority and that she might also feel intimidated now as a member of Indonesia's Christian minority. The Tribunal is prepared to accept that there will, from time to time, occur intimidatory incidents such as that claimed by the visiting preacher from Indonesia involving intimidation in the streets. The Tribunal accepts that such reports will be frightening to the applicant so that the applicant may be frightened by her experience of being caught up in the religious rioting that occurred in the Ketapang district of Jakarta. The background to that incident is outlined in the independent evidence above and indicates that the riot arose from a particular incident related to the conflict in Ambon.
The independent evidence also indicates that such incidents have been in decline in recent times. The independent information cited above also indicates that while there has in recent times been considerable social unrest, sometimes directed by Muslims at Christians, the government has acted swiftly to put an end to such sectarian riots and to prosecute the perpetrators. The independent evidence cited above indicates that the government continues to uphold the tenet of freedom of religion as enshrined in the Constitution.”
In the light of this the Tribunal also finds that the Indonesian authorities would act against any intimidatory behaviour such as that described by the applicant, if such behaviour became at all prevalent.”
The Tribunal made the remarks set out above in the context of persecution for reason of religion. It then went on to deal with persecution for reasons of race and accepted the claim of the applicant with regard to her family's business being burnt in the May 1998 riots. The Tribunal accepted that the applicant had a very strong subjective fear of harm as a Chinese Indonesian but came to the conclusion that from the evidence before it, much of which was cited, this did not constitute a well-founded fear of persecution nor was there a real chance that such harm would occur to the applicant should she return. The Tribunal acknowledged that no state could ensure the complete safety of all its citizens against all forms of harm, mistreatment or even death. But it found that there was considerable evidence that the move towards democratisation in Indonesia had been sincere and that the interests of Indonesia's Chinese citizens were being actively addressed by the government and that therefore "any developments in Indonesia beyond the foreseeable future must remain in the realm of pure speculation".
The Tribunal did conclude that for the reasonably foreseeable future the Indonesian authorities provided adequate protection to Chinese Indonesians in situations of civil disturbance.
Whilst it is not entirely clear how much of the independent country information was put directly to the applicant at the hearing it is clear, firstly, that the Tribunal considered all the applicant's claims including the possible claim that she was a member of a particular social class, namely, Indonesian women of Chinese ethnicity, and that such independent country information would fall within the exemption contained in s.424A(3)(a).
Mr Bharati who appeared on behalf of the applicant told me that the reason that the applicant had not made an earlier application for review of the decision was that she had no documents and no money. He submitted that the Tribunal did not consider the applicant's situation as a woman but I am satisfied that it did. Mr Bharati then made some comments concerning the current situation in Indonesia which I explained to him were not matters which I could take into account when considering whether or not the Tribunal fell into jurisdictional error. Mr Bharati said that his client was unwilling to avail herself of the protection of the Indonesian authorities because she did not consider that they would be able to protect her. That is a matter which was entirely in the hands of the Tribunal to decide upon and is not a matter which I can consider either.
In all the circumstances I am unable to see that the Tribunal fell into error in the manner in which it came to its decision in this case. It certainly did not fall into jurisdictional error. In those circumstances the decision made by the Tribunal is a privative clause decision within the meaning of the Migration Act and therefore ss. 477(1A) and 477(2) would apply. The application which is before me is not competent and I must dismiss it.
I dismiss the application and I order that the applicant pay the respondent's costs which I assess in the sum of $3,500 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:

[FCoA1]