SZEML v Minister for Immigration

[2005] FMCA 995

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEML v MINISTER FOR IMMIGRATION [2005] FMCA 995

MIGRATION – RRT decision – Chinese Indonesian woman – claimed torture by police – incorrect address given to Tribunal – did not receive invitation to hearing – Tribunal not satisfied – no error found.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.425A., 441A(4), 441C(4), 426A, 426A(1), 474, 483A, Pt 8
Migration Regulations 1994 (Cth), regs.4.35D

Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 119
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
VNAA v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407

Applicant: SZEML

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG2964 of 2005

Judgment of: Smith FM

Hearing date: 5 July 2005

Delivered at: Sydney

Delivered on: 5 July 2005

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the Respondent: Ms S Koya

Solicitors for the Respondent: Phillips Fox

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs in the sum of $3,300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2964 of 2005

SZEML

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which challenges a decision of the Refugee Review Tribunal (“the Tribunal”) dated 5 August 2004 and handed down on 30 August 2004.  The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant. 

2. Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction in a matter such as the present 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 (2002) 211 CLR 476, the limitations on my jurisdiction have the effect that I cannot set aside the Tribunal’s decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s claims should be believed nor whether she qualifies for a refugee visa.

3. In the present case, the applicant arrived in Australia on a one month visitor’s visa in April 2004.  She lodged an application for a protection visa on 7 May 2004.  Her application contained an authorisation to a migration agent to accept communications, and also showed the applicant’s current residential address as unit 8 at a street address in Lakemba. 

4. Accompanying the application was a short statement signed by the applicant in which she indicated that she was an Indonesian woman of Chinese ethnicity.  She said: 

   Indonesian Chinese have long been discriminated by native Indonesian … Many Indonesian Chinese women are raped and sexually abused.  This situation actually still lasts until today, but the Indonesian government covers up all the news related to discrimination and abuses on Indonesian Chinese. 

5. The applicant said that she had been raped by “a gang of native Indonesians” in April 1999 and that the police refused to respond to her complaint.  She said after she had recovered: 

   I initiated many activities participated by other raped Chinese women aiming at disclosing the Crimes of native Indonesians to foreign media and fighting for legislation against discrimination. 

   She said these activities were pursued until 2003 and: 

   As a result, we initiated a political union called “Women Victim’s Rights” and organised a protest in Jakarta in May 2003.

   …  

   As a result of this large protest, I was arrested in June 2003.  I was detained in a separated room.  In the room I was raped violently by the police.  Blood came out from my lower body and I lost conscious.  Then, I was brought to an interrogation room, where I was beaten and interrogated.  I was very scared and confessed everything due to inhuman torture.  After eight months of detention, I was finally released in February 2004. 

   With the help of a friend, the applicant then gained a passport and came to Australia. 

6. A delegate made a decision refusing the application on 21 May 2004, and a copy of his decision was sent to the applicant at the residential address shown in her visa application and also to her agent at a Haymarket post office box. 

7. On 15 June 2004 an application for review was lodged with the Tribunal by facsimile from a source which was not disclosed.  The application was signed by the applicant and did not nominate an authorised recipient nor indicate the involvement of any agent on behalf of the applicant.  The application showed as the applicant’s home address unit 8 at the same Lakemba street address shown previously to the Department, and a Haymarket post office box which was different than the post office box of her previous agent.  Accompanying the application for review was a brief statement which maintained her previous claims, but gave no more detail or material in support of their truth. 

8. The Tribunal sent to both the post office box and the home address given by the applicant an acknowledgment of receipt of the application on 18 June 2004.  The letter drew attention to the fact that the Tribunal might invite her to a hearing, and explained why a hearing was important as her opportunity to give the Tribunal evidence in support.  The letter also, as did the application for review, invited the applicant to send the Tribunal immediately any information, documents or other evidence that the applicant wanted the Tribunal to consider.  However, no supporting information was ever sent by or on behalf of the applicant. 

9. On 28 June 2004, a letter was sent to both addresses again by registered post inviting the applicant to attend a hearing on 3 August 2004.  The letter indicated that the Tribunal had not been able to make a favourable decision on the material before it and indicated the purpose of the hearing was for her to give oral evidence and present arguments in support of her claims.  It indicated that: 

   If you do not attend the hearing and the Tribunal does not postpone the hearing, it can make a decision on your case without further notice. 

10. In its statement of reasons handed down on 30 August 2004, the Tribunal said this about the invitation to the Tribunal: 

    On 28 June 2004 the Tribunal wrote to the applicant at both the residential address and address for service provided by the applicant advising that it had considered all the papers relating to this application but it was unable to make a favourable decision on that information alone.  The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 3 August 2004.  The applicant was advised that if she did not attend the hearing and a postponement was not granted that the Tribunal may make a decision on her case without further notice.  No response was received and the letter to her address for service was not returned.  The letter to her residential address was returned marked “no such number”.  The applicant does not have an adviser.  The Tribunal tried to phone the applicant on the telephone contact number provided but when rung, a message stating “The phone you have called is not available” is played.  The Department was contacted on 2 August 2004 to determine whether it had a more recent address but it did not.  On 2 August 2004 DIMIA’s movement database was checked and it was found that there is no record of the applicant having departed Australia.  The applicant did not appear before the Tribunal on the day and at the time and place at which she was scheduled to appear.  In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it. 

11. One of the grounds in the applicant’s original application filed in this Court was: 

    1.I was not given a proper opportunity to explain my case. 

12. Although the applicant was directed at a directions hearing in October 2004 to file and serve any affidavit containing additional evidence relied upon, she did not file any such evidence to explain why she claimed to have been denied a proper opportunity to appear.  However, today when I asked her about this she told me that the home address to which the Tribunal had sent letters was not her correct address because she lived in unit 1 and not unit 8 at the address at Lakemba.  She said that the Tribunal was given the wrong address because she had signed the review application when it was blank and had given it to an unnamed person whom she referred to as “my solicitor” to complete and lodge.  That person had completed the incorrect address.  She also suggested that the post office box she had given belonged to that person and had not been cleared so as to inform her of the correspondence from the Tribunal. 

13. These factual claims were not given under oath, but I am content to accept their truth, as was the representative of the Minister. However, in my view, they do not allow this Court to find error by the Tribunal in its decision to proceed to make a decision under s.426A(1) of the Migration Act, “without taking any further action to allow or enable the applicant to appear before it”. 

14. I am satisfied that by reason of the deemed receipt provisions arising under ss.425A, 441A(4), 441C(4) and regulation 4.35D the Tribunal had the power which it exercised under section 426A. There was no information before the Tribunal which, in my opinion, should or could have alerted the Tribunal to the error as to address in the original application form. I do not think that its discretion has miscarried.

15. As has been held in several cases in the Federal Court, the effect of the deemed service provisions and of s.426A is to envisage that a person may lose a right to appear as a result of an invitation not actually coming to their attention in time to appear (see VNAA v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407 at [14‑15] and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [12]). I therefore do not consider that the applicant has made out a ground of jurisdictional error based on procedural irregularity concerning her non‑attendance at the hearing.

16. In its reasons the Tribunal correctly, in my view, identified the claims made by the applicant which were before it and extracted a lengthy discussion of country information concerning the situation of ethnic Chinese, including Chinese women, in Indonesia.  Under the heading “Findings and Reasons”, it correctly referred to authority indicating that: 

    … the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. 

17. The Tribunal assessed the personal events that the applicant claimed to have suffered as follows: 

    Claims of sexual assault and detention

    The Tribunal has considered the applicant’s claims of having been sexually assaulted in the 1998 riots and to have been further harmed by the authorities because she has protested the rapes of Chinese women.  However, the applicant’s claims are lacking in important details such as the events surrounding her claims, and when and where they occurred.  Moreover, the Tribunal has not had the opportunity to question the applicant about her claims.  The Tribunal accepts the independent evidence cited above from the US State Department that sexual violence against women occur in Indonesia.  However, that evidence also points to the government according women strong legal rights, to be addressing the situation of women, including instituting specialised procedures within the police force, and that governmental and non‑governmental women’s rights groups are well established.  In the light of the absence of further evidence from the applicant with regard to the claims she has made of being raped both in riots and while in detention, and of having been arrested for political protests she has engaged in, the Tribunal cannot be satisfied that these events actually occurred. 

18. The Tribunal then addressed the applicant’s concerns as an Indonesian of Chinese descent and noted that apart from her account of sexual assault, she had provided no details of racial discrimination she had personally suffered.  The Tribunal noted independent evidence indicating that recent Indonesian governments were making progress to remove discriminatory provisions in Indonesian law and said that it was not satisfied that any discrimination the applicant may have suffered in the past or may suffer in the foreseeable future constituted a serious harm so as to come within the Refugees Convention definition. 

19. The Tribunal then addressed the applicant’s concerns arising from the anti‑Chinese rioting in Jakarta and elsewhere in 1998 and accepted that this “would have caused the applicant to have a very strong subjective fear of harm as Chinese Indonesians”.  However, it assessed the independent information and arrived at the following conclusion: 

    In the light of the Tribunal’s findings that the events of 1998 were of a particular historical severity and that six years had passed during which there has been a virtual absence of anti‑Chinese rioting, the Tribunal finds that there is no real chance that such events will re‑occur in the reasonably foreseeable future.  The Tribunal therefore finds there is no real chance of harm to the applicant in the reasonably foreseeable future if she returns to Indonesia. 

20. The Tribunal said that on all the evidence it was not satisfied that the applicant had a well‑founded fear of persecution within the meaning of the Convention. 

21. In her application in this Court as originally filed, the ground which I have already addressed above was raised and also a ground claiming that: 

    2.The Tribunal was wrong to find I was not a refugee.  The Tribunal made mistakes in saying I was not a refugee. 

22. The applicant has not attempted to elaborate these contentions, although expressing her disagreement with the conclusions reached by the Tribunal.  However, I do not think her disagreements reveal jurisdictional error by the Tribunal.  I have, on my own consideration of the Tribunal’s reasoning, been unable to identify any misconception by the Tribunal of the claims made by the applicant or of the relevant law to be applied when assessing them.  In my view, any errors of judgment made by the Tribunal were within its jurisdiction to decide the merits of the matter. 

23. The applicant has filed an amended application which in one long paragraph makes assertions that the Tribunal did not have “any materials to support” its adverse conclusions and, “I believe that he had bias towards me when considering my application”. 

24. In my view, the applicant has not been able to identify jurisdictional error in the Tribunal’s assessment of the applicant’s claims, nor do the Tribunal’s decision or proceedings suggest to me any grounds for a contention that the Tribunal might appear not to have brought a properly impartial mind to its decision. 

25. The amended application also contains a claim that: “In all, the Tribunal officer did not refer to sufficient evidence”. 

26. If this is a contention that the Tribunal was obliged to investigate the claims further, and in particular, conduct more research into independent evidence, then this is contrary to authority (c.f. Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43], Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20], and NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 119 at [48], [56]).

27. For the above reasons, I have not been able to find jurisdictional error affecting the Tribunal’s decision.  The decision therefore is a privative clause decision under s.474, which is not susceptible to judicial review.  I must therefore dismiss the application. 

    RECORDED  :  NOT TRANSCRIBED

28. I order the applicant to pay the respondent’s costs in the sum of $3,300.

I certify that the preceding twenty‑eight (28) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  19 July 2005