SZDUR v Minister for Immigration - [2005] FMCA 482

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDUR v MINISTER FOR IMMIGRATION

[2005] FMCA 482

MIGRATION – RRT decision – Indonesian Chinese fearing racial discrimination – no personal experience of persecution – no error found.

Migration Act 1958 (Cth), s.483A, Part 8
Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Applicant:

SZDUR

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 1780 of 2004

Judgment of:

Smith FM

Hearing date:

7 April 2005

Delivered at:

Sydney

Delivered on:

7 April 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Mr B Cramer

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs in the sum of $4000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1780 of 2004

SZDUR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.483A of the Migration Act 1958 (Cth), challenging a decision of the Refugee Review Tribunal dated 14 April 2004 and handed down on 11 May 2004. The Tribunal affirmed a decision of a delegate refusing an application made by the applicant for a protection visa.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. In matters such as the present that jurisdiction is under s.39B of the Judiciary Act 1903 (Cth), but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, the limitations have the effect that I cannot set aside the Tribunal decision and send the case back for re-hearing unless I am satisfied that the Tribunal decision was affected by a jurisdictional error.
I do not have power to decide the facts concerning whether the applicant is a refugee nor whether he should be given a protection visa. Those are matters given to the administrative officers in the Department of Immigration and the Refugee Review Tribunal.
In the present case, the applicant arrived in Australia in November 2003. His visa application was lodged on 18 December 2003 with the assistance of an agent. It showed that he was a young Indonesian man of Chinese ethnicity who had been born in June 1981 and trained in the occupation of hairdressing. It attached a statement which referred to racial discrimination in Indonesia and said:
In 1998, I was still studying in high school, turmoil occurred in Indonesia. As I am of Chinse background, I suffered more mental stress than other people did. I could not study well and could not enjoy my normal life. Whenever turmoil occur, Chinese Indonesians are always the target. Shops owned by Chinese Indonesians were robbed. Some students were shot dead. We became worried too much because of our Chinese ethnicity. We suffered racial discrimination when living in Indonesia.
If I go back to Indonesia, I may suffer at any time. Both political and economical situation is not stable in Indonesia. Terrorism attacks occur in Indonesia quite often. We had pressure from racial discrimination as well as terrorism. I had to leave Indonesia before I feel safe.
He claimed that if he went back he might be harmed and mistreated by the Indonesian government or the mobs.
A decision was made by a delegate on the day after the application was lodged. The delegate considered country information concerning the situation of ethnic Chinese in Indonesia, and thought that the applicant was not a person to whom Australia had protection obligations. The delegate pointed out that the applicant had not claimed to have experienced any treatment amounting to Convention related persecution in the past, although he claimed to have experienced discrimination as an ethnic Chinese. The delegate also noted that no evidence of any kind had been provided to support his claims to be at risk.
The applicant appealed to the Refugee Review Tribunal on 21 January 2004, assisted by the same agent. His application did not put forward any more detail or supporting information. He attended a hearing before the Tribunal on 13 April 2004 and was questioned by the Tribunal.
In its statement of reasons, the Tribunal referred to the applicant's statements in his visa application and noted that in some respects the applicant said different things at the hearing. In particular, as to the periods during which he had lived in Jakarta. The Tribunal said it had concerns about his credibility, and in particular about whether he had been in Jakarta at the time of the riots in May 1998, but said that it was prepared to give him the benefit of the doubt in relation to that.
The Tribunal said:
In any event, the applicant does not claim to have suffered any harm as a result of the riots in which ethnic Chinese were attacked by mobs in Jakarta in May 1998.
…
The applicant does not claim to have suffered serious harm either in 1998 or at any other time. The Tribunal therefore finds that he has not been persecuted for a Convention reason or for any other reason in the past.
It then addressed the future:
The Tribunal is required to consider whether there is a real chance that the applicant will suffer persecution if he returns to Indonesia in the foreseeable future. The applicant claimed to be afraid to return to Indonesia, but said that this was because he was afraid riots of the kind which occurred in the past against ethnic Chinese will occur again. The independent evidence indicates that while there remains discrimination against ethnic Chinese, there have not been any incidents of violence or serious harm against the ethnic Chinese in the past year. Ethnic Chinese candidates have stood for the current elections and there are ethnic Chinese involved in the current government. While this does not give any guarantee that no harm will be done to the ethnic Chinese, it does indicate a degree of confidence in the democratic process in Indonesia, and a willingness to participate in Indonesian political affairs. Taking this country information into account, and the fact that the applicant has never experienced serious harm in Indonesia, the Tribunal is not satisfied that there is a real chance that he well be persecuted if he returns to Indonesia. It is therefore not satisfied that the applicant has a well-founded fear or persecution.
The Tribunal said that, having considered the evidence as a whole, it was not satisfied the applicant was a person to whom Australia had protection obligations under the Refugee's convention.
The applicant's application was filed in this Court on 10 June 2004 and made two claims: “I was not given a proper opportunity to explain my case”; and: “The Tribunal was wrong to find I was not a refugee. The Tribunal made mistakes in saying I was not a refugee”.
On the evidence before me there is no substance to the first complaint. The applicant had a full opportunity to explain his case, including by attending a hearing before the Tribunal. The second complaint is a complaint about the factual assessment of the Tribunal, and does not suggest a legal or jurisdictional error. I am unable to identify any such errors on the material before me.
The applicant was directed at a first Court date to file an amended application, and did so on 10 December 2004. It repeats the claim that “the Tribunal officer was wrong to say I am not a refugee”, and disputes the Tribunal's assessment of the situation of Chinese in Indonesia. However, I cannot find a complaint which suggests jurisdictional error, except in the last sentence of the first paragraph which says: “I don't think the officer should refuse my application based on his bias towards me”.
I think this criticism is probably meant to mean no more than that the applicant disagrees with the conclusions of the Tribunal, but in any event I can find no substance to a complaint that the Tribunal had closed its mind to a proper assessment of the applicant's situation. I consider that it performed such an assessment.
I do not consider that the applicant has raised any grounds for jurisdictional error in the documents he has filed.
The applicant has attended today's hearing and had the assistance of an interpreter, but found himself at a total loss for words when asked to make submissions. I asked the Minister's representative to explain the Tribunal's decision and he did so. The applicant had nothing to say in response.
For all the above reasons, I must dismiss the application.

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

Associate: Iliya Marovich-Old

Date: 18 April 2005