SZDVX v Minister for Immigration - [2005] FMCA 606

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDVX v MINISTER FOR IMMIGRATION

[2005] FMCA 606

MIGRATION – RRT decision – Indonesian Chinese young man – fears arising from 1998 riots – no jurisdictional error found.

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

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

Applicant:

SZDVX

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 1856 of 2004

Judgment of:

Smith FM

Hearing date:

21 April 2005

Delivered at:

Sydney

Delivered on:

21 April 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Mr J A C Potts

Solicitors for the Respondent:

Clayton Utz

ORDERS

Application dismissed.
Applicant to pay the Respondent’s costs in the sum of $3000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1856 of 2004

SZDVX

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) (“Migration Act”) challenging a decision of the Refugee Review Tribunal (“the Tribunal”) dated 22 April 2004 and handed down on 18 May 2004. The Tribunal affirmed a decision of a delegate refusing to grant a protection visa to the applicant.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. In a matter such as the present, the jurisdiction is under s.39B of the Judiciary Act 1903 (Cth) subject to limitations under Part 8 of the Migration Act.

As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 the limitations have the effect that I cannot set aside the Tribunal decision and send the case back to the Tribunal unless I am satisfied that the Tribunal decision was affected by a jurisdictional error. I do not myself have power to decide whether the applicant is a refugee or should be given a visa.
The present applicant arrived in Australia in November 2003 from Indonesia. On 18 December 2003 he applied for a protection visa assisted by a migration agent. Attached to his application was a short statement indicating that he was of Chinese background and “I worried that if I continued to stay in Indonesia, some people in the Indonesian Government would persecute me”. He said: “As we all know, in May 1998, turmoil occurred in Indonesia, and many Chinese became the victims at the turmoil. Many churches of Christianity were burned, and many Chinese Indonesian were robbed and beaten. Some students were shot dead. The government did not do anything to control the situation. We had to hide here and there and our normal life was influenced. We became worried too much because of our Chinese ethnicity. We suffered racial discrimination”. He feared that if he went back: “I may be harmed and mistreated by the Indonesian Government, or the mobs”. He did not indicate any events which had occurred to him personally.
The delegate refused to grant a visa in a decision made on 19 December 2003, and the applicant appealed to the Tribunal with the assistance of a migration agent. His appeal did not identify additional circumstances other than referring generally to: “Our family members and I all suffered during the turmoil as a result of being Chinese Indonesians. We could not enjoy equal opportunity and human rights. We became the targets of attack during the turmoil”.
The applicant attended a hearing before the Tribunal on 20 April 2004 in the company of his agent, and according to the Tribunal he gave more details about his background. He told the Tribunal that his father had died at the end of May 1998. This followed an incident where in the course of the rioting he was on his way home from work on his motorbike and was intercepted, his bike was taken, and he was hit and thrown into dirty water. He later got a severe infection from this and died.
The applicant said he himself during the riot was standing with other men with a stick and fire extinguisher to defend their homes against the mobs. He saw a lot of native Indonesians coming towards them and they took things from the houses, such as televisions and small things which they could carry. The applicant said that he was not hurt during the riots.
The applicant also recounted some other problems while living in Jakarta which he thought he might have encountered as a result of his Chinese background. He said that in about May 1998 he had been chased and he had to take refuge with his servant’s family. He said he recalled being robbed later when he was going to work, and once in 2001 was stabbed when he was resisting a thief who was trying to snatch his watch.
The Tribunal said that it asked the applicant what he now feared if he returned to Indonesia, and he said that he was scared that the events of 1998 would recur. The applicant told the Tribunal that he had no one in Indonesia; his father had brothers but they were in Hong Kong and the applicant had no contact with them. His mother and father had separated when he was a child and she had gone to Taiwan.
In its short statement of reasons, the Tribunal accepted that the applicant had put forward his claims in a straight forward and credible manner, and accepted that he had a frightening and distressing time during the May 1998 riots, particularly because of the subsequent death of his father. The Tribunal accepted other parts of his story, although it doubted whether he was robbed because of his ethnicity. The Tribunal said, however, that it did not accept that he had in the past suffered Convention‑based persecution.
Addressing the critical issue as to whether the applicant had a real chance that he would be persecuted if he returned, it said:
The Tribunal is required to consider whether there is a real chance that he will be persecuted if he returns to Indonesia in the foreseeable future. It has found that the applicant has not been persecuted in the past. 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. He put forward no particular evidence to support this concern, and there is no information before the Tribunal which would satisfy it that there is a real chance that the applicant will be persecuted for reasons of his Chinese ethnicity, or for any other reason, if he returns to Indonesia. The Tribunal is therefore not satisfied that the applicant has a well‑founded fear of persecution.
I have carefully considered the Tribunal’s reasons and the procedures that it followed, and have not been able to identify any ground of jurisdictional error which could be put forward on behalf of the applicant. I think its conclusions were open to it as a matter of law.
The applicant’s application to this Court filed on 17 June 2004 had two short grounds:
1)I was not given a proper opportunity to explain my case.
2)The Tribunal was wrong to find I was not a refugee. The Tribunal made mistakes in saying I was not a refugee.
I am not able to accept these complaints as showing jurisdictional error. As to the first, I am not persuaded on the material before me that the applicant was not given a proper opportunity to explain his case, in particular, in the course of his hearing by the Tribunal.
As to the second ground, I can understand the applicant having an opinion the Tribunal made the wrong decision and was mistaken about its assessment of the situation in Indonesia. However, I consider that his complaint is about the merits of its assessment and does not show a legal error providing ground for me to set aside its decision.
The applicant has filed an amended application which states:
I believe that there is jurisdiction error with the way the Tribunal officer considered my application. First of all, he refused to accept any of my explanation at my hearing because he believed that the present government had been paying much attention on controlling the racial discriminations and religious of minorities. However, he did accept that the racial discrimination and turmoil targeted Chinese were severe in 1998. There is no evidence to support his claim that the present government has been paying much attention on controlling the race discriminations and religious of minorities. Chinese Indonesians are still under the pressure of racial discriminations. He made the conclusion based on no independent evidence. He was over optimistic about the situation in Indonesia, and there are not reasonable evidence to support the over optimistic situation. As a matter of fact turmoil may occur at any time in which Chinese Indonesians are targeted. I don’t feel safe to return to Indonesia.
I believe that the officer made jurisdiction mistakes when considering my application. He did not take into account any information provided by me at my hearing and simply refused my application based on some wrong information, and there is no evidence to support his decision.
I have considered these complaints, however, I think the complaint in the first paragraph does not amount to more than disagreement with the Tribunal’s assessment of the current situation in Indonesia. In relation to the second paragraph, I am not persuaded that there was anything said by the applicant or information provided to him which has been ignored by the Tribunal.
At the hearing, the applicant’s statements to me were unable to identify any ground of jurisdictional error on the part of the Tribunal.
For the above reasons I am unable to make the orders sought by the applicant, and I dismiss the application.
RECORDED : NOT TRANSCRIBED
I shall order the applicant to pay the respondent’s costs in the sum of $3000.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 10 May 2005