SZEQI v Minister for Immigration - [2005] FMCA 1615

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEQI v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1615

MIGRATION – RRT decision – Indonesian of Chinese ethnicity – shop damaged in Lombok rioting in 2000 and 2003 – finding that random persecution not Convention related – finding that state protection would be reasonable and adequate – test of adequate state protection – no errors found.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36(2), 91R, 91R(1)(b), 91R(1)(c), 474(1), 483A, Pt.8

Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441
SZBBP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 167
SZDTZ v Minister for Immigration & Anor [2005] FMCA 1392
SZDWR & Anor v Minister for Immigration [2005] FMCA 860

Applicant:

SZEQI

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG3204 of 2004

Judgment of:

Smith FM

Hearing date:

31 October 2005

Delivered at:

Sydney

Delivered on:

5 December 2005

REPRESENTATION

Counsel for the Applicant:

Mr R B Wilson

Counsel for the First Respondent:

Mr J A C Potts

Solicitors for the Respondents:

Phillips Fox

ORDERS

The Tribunal be included as second respondent.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3204 of 2004

SZEQI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks judicial review relief in relation to a decision of the Refugee Review Tribunal (“the Tribunal”) dated 2 September 2004 and handed down on 30 September 2004. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] FMCA 1615
Decision Date: 5 December 2005

CaseChat Overview and Summary

In the case of Szeqi v Minister for Immigration, the applicant, Szeqi, sought judicial review of a decision made by the Refugee Review Tribunal on 2 September 2004, which upheld a delegate's refusal to grant a protection visa. Szeqi, who arrived in Australia from Indonesia on a visitor's visa in March 2004, applied for a protection visa and was subsequently refused. The Tribunal's decision was based on the applicant's evidence regarding his experiences as an ethnic Chinese person in Indonesia, specifically the targeting and attacks on his cloth shop in November 2003 and earlier incidents. The application for judicial review was made under section 483A of the Migration Act, which grants the court the same jurisdiction as the Federal Court in relation to matters arising under the Act.

The court had to determine whether the Tribunal's decision was affected by a jurisdictional error, as the court's power to set aside the decision and send the matter back was limited. The court considered the applicant's claim that he feared returning to Indonesia due to his ethnic background and the attacks on his shop, as well as the Tribunal's assessment of his evidence and the country information regarding the situation of ethnic Chinese people in Indonesia. The court found that the Tribunal's decision was not affected by jurisdictional error and dismissed the application.

Szeqi's application for judicial review was dismissed, and the Tribunal was included as the second respondent. The applicant was ordered to pay the first respondent's costs in the sum of $5,000. The court's decision was based on its finding that the Tribunal's decision was not affected by jurisdictional error, and the court did not have the power to decide whether Szeqi qualified for a refugee visa.

Orders

Orders of the court

The Tribunal be included as second respondent.

The application is dismissed.

The applicant must pay the first respondent’s costs in the sum of $5,000.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks judicial review relief in relation to a decision of the Refugee Review Tribunal (“the Tribunal”) dated 2 September 2004 and handed down on 30 September 2004. The Tribunal affirmed a decision of a delegate which refused 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”. 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 (2003) 211 CLR 476 at [76], Re Minister for Immigration & Multicultural & Indigenous Affairs, Ex parte Applicants S134/2002 (2003) 211 CLR 441 at [15] and [76]‑[77], and in subsequent cases, the limitations have the effect that I cannot set aside the Tribunal 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 qualifies for a refugee visa. The applicant arrived in Australia from Indonesia on a one month visitor’s visa in March 2004. On 29 March 2004, he lodged an application for a protection visa with the assistance of a migration agent. The application was refused by a delegate on 31 March 2004, and the applicant applied for review by the Tribunal. He was initially unrepresented, and did not present any supporting evidence to the Tribunal before he attended a hearing on 3 June 2004. Subsequent to the hearing, an agent submitted various documents concerning the general situation of ethnic Chinese people in Indonesia. In relation to his own experiences, the applicant said in a brief statement attached to his visa application that he “came from a Chinese family, an ethnic group which had been targeted by the native Indonesian”. He claimed: I run a cloth shop in [town] after I graduated from high school. It was burnt and looted by local Indonesian many times. The last time happened in November 2003 and the shop burnt into ash. Now, I do not dare to go back again to Indonesia only because I am a Chinese. I will be targeted and even killed. The applicant gave a somewhat different account of his experiences of rioting, when he attended the hearing before the Tribunal. A transcript is not in evidence, but the Tribunal described his evidence: He confirmed that he had been born and grown up in a small town in Lombok. He is not married and has no particular religious beliefs. His family had followed Confucian ideals and beliefs. He told me that his parents were deceased and he had 2 siblings living in Indonesia. The applicant appeared to be rather evasive when speaking of his family members and seemed reluctant to give any further details. The applicant had been born in the local area of [town] and lived there his whole life. His parents owned a shop in [town] and the applicant inherited that shop. The applicant told me that he feared returning to Indonesia because he had experienced the burning and looting of his shop in [town] on 17 January 2000 and a later incident in November 2003. When I questioned him further he told me that his shop had been looted in January 2000 but not burnt down. The windows were smashed and clothes taken. I put it to him that it sounded as if it had been a robbery. He said it was not a robbery it was a religious protest against non Muslims. He said that there was a riot in [town] and that churches were burnt and non Muslim places were targeted. There were reports on television about the riots in 2000. The incident was downplayed by the government because they did not want bad publicity. I put it to the applicant that the country information indicated that there have been no significant riots affecting the Chinese community since the end of 1999. The applicant disagreed and said that there have been incidents from time to time. He told me that the incident in November 2003 was not that big but he was always haunted by a fear because non Muslims are considered infidels and not regarded very well. He told me the November 2003 incident was a small riot which went to race and religion. There was a fight between some indigenous Indonesians and Chinese which then spread to all the Chinese people. At the time of the fight everyone fled and the applicant locked his shop and left. He fled to a place of refuge outside the town and stayed with some relatives. He came back after 3 days to see the condition of the shop. He said that the shop had some damage but he did not have insurance. At first he told me that he did not go to the police because they would not have done anything because he was a member of a minority. He then told me he did go to the police and filled out a report of what had happened. The police officers wrote it down and told him it would be investigated. He said it was always like that. I asked him if he had a copy of his statement or police report. He said that there was no written police report available to him. He said that the police kept control of the November 2003 incident and it did not get very big. He speculated that because [town] was a tourist area the government were concerned to make sure that incidents did not get out of control. After the incident he continued to live in [town] but eventually obtained a visa and came to Australia. The applicant agreed that he had no difficulty getting a visit visa to Australia. I discussed relevant country information with the applicant and in particular the strong measures taken by the Indonesian government to protect the Chinese community since the 1998 riots. The applicant stated that riots still occur and anti Chinese feeling still exists. The Islamic community is very strong and the government will not do anything to protect the Chinese community. He said that there are problems in [town] however because it is a tourist town the government tries to keep problems under control. I asked the applicant why he did not relocate to another area of Indonesia if he was unhappy with the situation in [town]. For example he could relocate to a large city with a large Chinese community such as Jakarta. There were also other areas of Indonesia which had large Chinese communities. He told me that there was nowhere in Indonesia which was safe for the Chinese and he is haunted by his fear. He told me that the Chinese are tormented and if he returned there could be a recurrence of past incidents and he would always be traumatised.