SZDXE v Minister for Immigration
[2005] FMCA 1534
•18 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDXE & ORS v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1534 |
| MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicant claims persecution in Indonesia as a non–ethnic Indonesian. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S |
| NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 SZBNQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1033 NAYU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 528 SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 Abebe v Commonwealth of Australia [1999] 197 CLR 510 |
| First Applicant: | SZDXE |
| Second Applicant: | SZDXF |
| Third Applicant: | SZDXG |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1925 of 2004 |
| Judgment of: | Emmett FM |
| Hearing date: | 13 October 2005 |
| Date of Last Submission: | 13 October 2005 |
| Delivered at: | Sydney |
| Delivered on: | 18 October 2005 |
REPRESENTATION
| The Applicant appearing for himself |
| Counsel for the First Respondent: | Mr J. Potts |
| Solicitors for the First Respondent: | Mr P. Reynolds, Clayton Utz |
ORDERS
That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.
That the Refugee Review Tribunal be joined as Second Respondent.
That the applications filed in this Court are dismissed.
That the Applicant pay the Respondent’s costs in an amount of $5000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1925 of 2004
| SZDXE & ORS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the delegate”) not to grant a protection visa to the applicants.
The applicants are a husband, his wife and son. For the purposes of this judgment I will refer to the applicant husband as the Applicant as his wife’s and son’s applications are dependent on the outcome of the Applicant.
The Applicant was born in Medan, Indonesia on 30 May 1949.
The Applicant claims to be a citizen of Indonesia
The Applicant claims to belong to a Chinese ethnic group and is a Buddhist.
Prior to arriving in Australia the Applicant claims that he worked as a Sales Manager in Indonesia.
On 9 December 2003, the Applicant claims that he legally departed from Saskarno Hatsa.
The Applicant arrived in Australia on 10 December 2003. The Applicant’s wife and son were already in Australia at the time of the Applicant’s arrival.
On 12 December 2003, the Applicant lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Migration Act 1958 (Cth) (“the Act”).
The Applicant claimed that, if he and his family were to return to Indonesia, they will face extortion threats and violence from the Pemuda Pancasila Group (PPG), a group known for their attacks on innocent people especially those who are non-native Indonesians. Furthermore, the Applicant claimed that the police cannot offer protection as they are affiliated with the PPG.
On 9 January 2004, a delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol.
On 30 January 2004, the Applicant lodged an application for review before the Tribunal. On 27 May 2004, the Tribunal affirmed the decision of the delegate not to grant a protection visa.
Legislative framework
Section 65(1) of the Act authorises the decision maker to grant a visa if satisfied that the prescribed criteria have been met.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceedings
On his application for review, the Applicant nominated his home address as the only contact details provided. There was no further address or telephone number or contact detail. The Applicant, in completing section C of the application for review, requested that correspondence about his application be sent to “myself”.
The Applicant provided the following reasons for making the application:
“I am not satisfied with the DIMIA decision, because in my country, Indonesia, is still not a safe country, still lots of problems which we as Chinese-Indonesian are always targeted. Moreover with the coming election which may happen again as the 13 Mei event that burst in 1998.
So I’m really afraid of going back to my country.
Please consider again my application and kindly grant me a more favourable decision.”
Two invitations to attend a hearing were sent to the Applicant on
4 February 2004 and 11 March 2004 respectively. Both invitations were returned to the Department marked ‘Unknown at the Address’. On 3 May 2004, the Tribunal proceeded with its review, without taking any further action to allow or enable the Applicant to appear before it.
The Tribunal had before it the Department’s file including the Applicant’s material before the delegate.
The Tribunal considered the Applicant’s claims and identified them as follows:
a)That the Applicant has been the subject of extortion by local hoodlums who have regularly asked for money from his mixed business.
b)That he cannot gain assistance from the police.
c)That after opening a mixed business in Jakarta in Indonesia, he was often visited by a number of groups demanding money to allow him to continue to operate safely. The Applicant claimed that these people were from the PPG. The Applicant stated that the PPG is “very well known in Indonesia” as they have “harassed and attacked a number of innocent people like myself especially to those who are non native Indonesian”.
d)That the demands for money increased over time to twice a week and proceeded to a stage “where they even just come in and out of the shop as they like whenever they want to and take anything they please to take.”
e)That the Applicant was unable to continue to pay the amount of protection money sought. Following his refusal “these people got angry and started giving us threats, they threatened to burn our shop and even kill us.”
f)That, on one occasion the Applicant had a knife held to his throat and his wallet, watch and ring stolen.
g)That the police will not do anything about the violence because they are friends with the people perpetrating the crimes.
The Tribunal, in its findings and reasons, noted that without further evidence by way of direct oral evidence from the Applicant it could not be satisfied that the events claimed occurred and that, if they did occur, it could not be satisfied whether the degree of harm suffered by the Applicant constituted persecution.
The Tribunal went on to consider the Applicant’s claim if the Tribunal were to accept that the Applicant may be faced with extortion demands if he were to return to Indonesia. The Tribunal considered the possibility that the crimes, if they occurred, were committed for a Convention reason. The Tribunal had regard to independent country information before it that indicated that crime is a major problem in Indonesia, but that it was directed to indigenous Indonesians as well as Chinese. The Tribunal found that extortion is a crime to which all better off members of society in any country are subject. The Tribunal noted the comments of Burchett J in Ram v Minister for Immigration and Ethnic Affairs & Anor (1995) 57 FCR 565 at 569 that:
“plainly extortionists are not implementing a policy: they are simply extracting money from a suitable victim. Their forays are disinterestedly individual”.
The Tribunal acknowledged crime in certain circumstances can constitute persecution for a Convention reason. However, in the present case, the Tribunal found there was not sufficient evidence to satisfy it that the essential and significant motivation of the criminals was the Applicant’s race, rather than the perception that he was wealthy. The Tribunal found that the essential and significant motivating reason for the crimes would not be a Convention related reason, rather criminal greed. The Tribunal found that, if the Applicant had not been perceived to have wealth or goods to steal, then such actions would not take place. The consequence of those findings by the Tribunal is the Tribunal’s conclusion that the persecution alleged by the Applicant being for the reason of his race, namely Chinese, or non indigenous Indonesian, was not the essential or significant reason for the persecution, and therefore, s.91R(1)(a) of the Act is not satisfied.
Moreover, the Applicant did not claim before the Tribunal that any failure by the police to protect him was because of his race or any other Convention related reason. Rather, the Applicant stated that the reason the police did not interfere was because they were friends of the criminals.
Accordingly, the Tribunal concluded that any harm the Applicant may suffer as the victim of future criminal acts of extortion in Indonesia is not for a Convention reason.
The proceeding before this Court
On 23 June 2004, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Pursuant to Short Minutes of Order made on 29 September 2004, the Applicant filed a document entitled “Amended Application”. That document is more in the nature of submissions.
The Applicant was unrepresented before this Court, however, had the assistance of an interpreter. He made no further oral submissions in support of his application.
Having regard to both the Applicant’s Application filed on 23 June 2004 and his document entitled “Amended Application”, I understand his claims to be as follows.
Ground 1: That the Applicant was not given a proper opportunity to explain his case
As identified above, on his application for review lodged with the Tribunal the Applicant identified only his home address as his contact details.
On 30 January 2004, the Tribunal wrote to the Applicant confirming receipt of his application for review and notifying him of the importance of informing the Tribunal of any change of contact details. The Applicant was also invited to send any further documents, information or other evidence for the Tribunal’s consideration. Nothing further was received by the Tribunal from the Applicant.
On 4 February 2004, the Tribunal wrote to the Applicant at his identified address inviting him to a hearing on the 26 April 2004. That letter notified the Applicant that the Tribunal had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. That letter was returned to the Tribunal, marked ‘Unknown at the Address’, on
16 March 2004.
On 11 March 2004 the Tribunal sent a further letter to the Applicant inviting him to a hearing on 28 April 2004. Again the letter was returned to the Tribunal on 23 March 2004 marked ‘Unknown at the Address’.
The First Respondent read the affidavit of Jessica Caban, sworn
14 June 2005 and filed 14 June 2005, annexing copies of the Tribunal’s postal log. Annexure “A” identified that the Tribunal’s letter, dated
4 February 2004, was sent to the Applicant at his identified address by registered post on 5 February 2004. Annexure “B” identified that the Tribunal’s letter dated 11 March 2004 was sent by the Tribunal to the Applicant at his identified address by registered post on 11 March 2004.
Section 426A of the Act entitles the Tribunal to proceed to make a decision on the review, where an applicant fails to attend a scheduled hearing without taking further action to allow or enable the Applicant to appear before it, where an invitation has been sent to the Applicant pursuant to s.425 of the Act.
Sections 425 of the Act requires the Tribunal to invite an applicant to appear before the Tribunal to give evidence and present arguments. Relevantly, Section 425A(2) requires that an invitation to attend pursuant to s.425 of the Act must be given to the Applicant by one of the methods specified in s.441A of the Act.
Section 441A(4) provides that the Tribunal can give a s.425 notice to an applicant by pre-paid post addressed to the last address for service provided to the Tribunal, or the last residential address provided, as long as the notice is dispatched within 3 working days of the date of the document. Having regard to Annexures “A” and “B” of Ms Caban’s affidavit, referred to above, those requirements are satisfied.
Section 441C(4) provides that, in the event that s.441A(4) has been complied with, then the Applicant would be taken to have received the documents 7 working days after dispatch.
On 3 May 2004, the Tribunal exercised its discretion, pursuant to s.426A, to proceed in the absence of the Applicant without taking any further action to allow or enable the Applicant to appear before it. The Tribunal noted that no response had been received from either invitation to attend a hearing, that the letters were returned marked ‘Unknown at the Address’, and that the Applicant did not have an advisor or a telephone contact number. The Tribunal noted that it had contacted the Department on 23 March 2005 to determine whether it had a more recent address for the Applicant but it did not. The Tribunal further noted that, on 28 April 2004, the Department’s movement database was checked and it was found that there was no record of the Applicants having departed Australia. The Tribunal then made its decision to proceed.
In the circumstances the Tribunal properly exercised its discretion, and was entitled, pursuant to s.426A of the Act, to proceed with its review without taking any further steps to allow or enable the Applicant to appear before it.
Accordingly, this ground is rejected.
Ground 2: That the Applicant disagrees with findings of fact made by the Tribunal
The Applicant did not provide any particulars of any findings of fact made by the Tribunal with which the Applicant disagrees. The “Amended Application” document disagrees with the Tribunal’s conclusion that the Applicants were not refugees.
The Tribunal made findings of fact that were open to it on the evidence before it and the reasons for those findings, as referred to above. The Tribunal considered the Applicant’s claim in circumstances if the Applicant’s factual assertions of extortion and violence were proved. Its ultimate conclusion was based on its finding that there was no Convention nexus with the harm suffered by the Applicant, in that the criminals were not targeting the Applicant because of his Chinese ethnicity, or any other Convention related reason. Moreover, the Applicant did not claim that the police failed to protect him for any Convention related reason, such as his race. Rather, the Applicant stated that the police failed to take any steps because they were friends with the criminals. Moreover, the Tribunal found that the independent country information to which it had regard, noted that crime was visited upon indigenous Indonesians as well as Chinese. Further, it found that the crime of extortion was directed to the Applicant because he was perceived to be better off and not because of his ethnicity or other Convention related reason.
It is not for this Court to engage in fact finding about the merits of the Applicant’s case in dealing with an application for relief under s.39B of the Judiciary Act. (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 (“NAHI”) at [10]).
Accordingly, this ground is rejected.
Ground 3: That the Applicant did not know where the Tribunal obtained the information referred to as the independent country information
The Applicant claimed in his document entitled “Amended Application”, that, in Indonesia, Chinese people are targeted because of their race. The Applicant submitted that his application should not be refused based on independent evidence that was inconsistent with his claim.
The authorities are clear that the Tribunal may obtain any information it considers relevant and there can be no objection in principle to a Tribunal relying on country information. It is a matter for the Tribunal, as part of its fact finding function, to determine the weight such information is given. It is not an error of law or a jurisdictional error for a Tribunal to base its decision on country information that is not true. It is for the Tribunal to determine the accuracy of the country information. The Court would otherwise be engaging in merits review. (NAHI at [11]).
It has also been authoritatively determined that, where s.422B applies to an application, as it does in this case, s.424A(1) does not require the Tribunal to identify to an applicant, prior to any hearing, any information contained in the independent country information that the Tribunal may consider adverse to their interest. (Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572 at 139; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [26]; SZBNQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1033 at [16]). Accordingly, in the circumstances, it is not relevant that the Applicant did not know the source from which the Tribunal obtained the independent country information and upon which it based its findings that in Indonesia indigenous Indonesians, as well as Chinese, are the targets of criminal extortion.
Accordingly, this ground is rejected.
Ground 4: That the Tribunal could not provide any evidence to justify its conclusion and referred only to independent country information favourable to its decision
This is a claim principally disagreeing with the findings made by the Tribunal that any persecution alleged by the Applicant would not be for a Convention reason. Such conclusion is based on the Tribunal’s finding that indigenous Indonesians, as well as Chinese, are targets of crime in Indonesia, particularly in respect of extortion where the targets are people of means.
It is not otherwise for the Tribunal to provide evidence itself to justify its findings. Nor is the Tribunal obliged to embark upon its own enquiries. It is not the Tribunal’s duty, as a decision maker, to make the Applicant’s case for him. It is only in circumstances where it so obvious that material is readily available and essentially relevant to the decision to be made, that to proceed, without attempting to obtain such information, would be an unreasonable exercise of the decision making power. (NAYU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 528 at [19] – [21]).
It is for an Applicant to satisfy the Minister in respect of an application for a protection visa that the relevant criteria have been satisfied. Section 65(1)(b) provides that if the Minister is not so satisfied then the delegate is to refuse to grant the visa. Section 65(1) requires that an application for a protection visa be refused if the decision maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied. (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 (“SJSB”) at [14] – [15]). It is for an Applicant to advance whatever evidence or argument he or she may wish to advance in support of his or her contention that he or she has a well founded fear of persecution for a Convention reason. It is for the Tribunal to decided whether or not that claim is made out. The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. (Abebe v Commonwealth of Australia [1999] 197 CLR 510 at 576 as cited in SJSB at [16]).
The Tribunal made it clear that, in circumstances where the Applicant failed to appear at the hearing, it could not properly assess the Applicant’s claims. The Tribunal, prior to the scheduled hearing, in its letter of invitation to attend the hearing on 26 April 2004 notified the Applicant that it could not make a decision in his favour on the material before it. No further material was received by the Tribunal from any of the Applicants. The Tribunal noted that its correspondence was returned marked “Unknown at this Address”. The Tribunal made efforts to enquire whether the Department had any further contact details beyond those identified by the Applicant in his application for review. However, I note that the Tribunal’s ultimate conclusion was that, even if it accepted the Applicant’s claims as stated, there was no Convention nexus with the harm suffered by the Applicant at the hands of the criminals. The Tribunal reached that conclusion based on its finding that, having regard to the independent country information, any violent targeting of the Applicant in the circumstances alleged was not directed at him because of his Chinese ethnicity, nor for any other Convention related reason.
Accordingly, this ground is rejected.
Conclusion
Ultimately the Tribunal found that there was no Convention nexus between the Applicant’s claim of fear of persecution and therefore was not satisfied that the Applicant was a person to whom Australia owes protection obligations pursuant to the Refugees Convention as amended by the Refugees Protocol.
In light of the Tribunal’s finding in respect of the Applicant’s application the applications of his wife and son must also fail.
The findings of fact made by the Tribunal were open on the evidence and were capable of supporting the Tribunal’s conclusion. In the circumstances, the decision of the Tribunal is not affected by jurisdictional error and, pursuant to s.474 of the Act, is a privative clause decision. Accordingly, this Court has no jurisdiction to interfere.
Accordingly, the applications before this Court are dismissed with costs.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S Riddle
Date: 18 October 2005
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