SZDUZ v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 906

FEDERAL COURT OF AUSTRALIA

SZDUZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 906

SZDUZ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 712 of 2005

BRANSON J
28 JUNE 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 712 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDUZ APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	28 JUNE 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the costs of the respondent fixed at $1500.00.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 712 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDUZ APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BRANSON J
DATE:	28 JUNE 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of Indonesia of Chinese ethnicity.  She arrived in Australia on a short stay tourist visa on 23 November 2003.  She applied for a protection visa on 18 December 2003.  In her application she referred to the 1998 turmoil in Indonesia in which those of Chinese ethnicity suffered acts of violence including rape and murder and serious property offences.  She claimed that racial discrimination was an ongoing problem in Indonesia from which the Indonesian Government was not able to provide protection.

2. The appellant’s application for a protection visa was refused on the day after it was lodged.  She applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the decision of the delegate.  The decision of the Tribunal was made on 3 May 2004 and handed down on 25 May 2004. 

3. The Tribunal accepted that the appellant had a frightening and distressing time during the May 1998 riots although neither she nor her immediate family was physically harmed or suffered property loss.  The Tribunal also accepted that the applicant had been robbed on various occasions and during one incident threatened with a knife.  However, the Tribunal concluded that these incidents were incidents of ordinary criminality and were not motivated by any Convention reason.

4. The Tribunal was satisfied that although a level of discrimination against ethnic Chinese continues in Indonesia there has been no incident of serious harm in recent years.  It noted that there had been hundreds of ethnic-Chinese candidates in the recent Indonesian election and that this indicated some level of confidence held by ethnic Chinese in the Indonesian political system.  The Tribunal was not satisfied that there was a real chance that the appellant will be persecuted in the foreseeable future for a Convention reason if she returns to Indonesia.

5. The appellant applied to the Federal Magistrates Court for judicial review of the decision of the Tribunal.  She alleged by her application that she was not given a proper opportunity to explain her case and that the decision of the Tribunal was wrong.  By an informal amended application she re-agitated the merits of her claim to be entitled to a protection visa and asserted a belief that the Tribunal had made jurisdictional mistakes and failed to consider all of the information provided by her at her hearing. 

6. The learned Federal Magistrate noted that the appellant had little understanding of the issues to be determined on her application.  His Honour considered for himself the reasons for decision of the Tribunal but was unable to identify any jurisdictional error made by it.  The appellant’s application for judicial review was dismissed with costs.

7. By her notice of appeal to this Court the appellant alleged that the Tribunal failed to raise reasonable grounds for not granting her a protection visa and that it failed to assess the chance that she would be persecuted on return to Indonesia because of her Chinese background.  Having been directed to file an amended notice of appeal containing grounds of appeal against the decision of the Federal Magistrates Court she filed an amended notice of appeal that contained three further complaints against the decision of the Tribunal.  These complaints are:

   1.that the Tribunal failed to provide her with adequate particulars of independent information;

   2.that it did not provide her with an adequate opportunity to respond to the substance of the information; and

   3.that the Tribunal’s satisfaction that she is not a refugee was not based on reasoning which provides a rational or logical foundation for this belief.

8. I have today given the appellant an opportunity to elaborate on her grounds of appeal, whether appearing in the original or in the amended notice of appeal.  The appellant has re‑asserted the merits of her claim to be entitled to a protection visa.  The complaints made by the appellant about the procedure adopted by the Tribunal and the rationality of its reasoning process are without proper foundation.  The appellant has identified no error affecting the decision of the learned Federal Magistrate whose decision is the subject of this appeal.  Like his Honour, I also have reviewed the decision of the Tribunal.  Like his Honour, I also am unable to identify any jurisdictional error affecting that decision.  In the circumstances this appeal must be dismissed and I so order.  The appellant is to pay the respondent's costs fixed at $1500.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:            1 July 2005

The Appellant appeared in person
Advocate for the Respondent:	P Reynolds
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	28 June 2005
Date of Judgment:	28 June 2005