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

Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225
Applicants S1573 of 2003 v Minister for Immigration & Anor [2005] FMCA 47
Bagdanavicius v Secretary of State for the Home Department [2003] EWCA Civ 1605
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs v Eschetu (1999) 197 CLR 611
Minister for Immigration & Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1
Minister for Immigration & Multicultural Affairs v Prathapan (1998) 156 ALR 672
Minister for Immigration & Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; (2004) 205 ALR 487
Minister for Immigration & Multicultural Affairs v Thiyagarajah (1997) 151 ALR 685
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
MZ Raj v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1261
NAGV and NAGW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 6
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

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 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.
The Tribunal set out over several pages relevant extracts from country information relevant to these claims. This included a 1999 DFAT report which included the statements: “violence against Sino Indonesians has not taken place as a result of state policy; rather it is a result of random rioting and civil unrest”, and “the unpredictable nature of the violence which threatens Sino Indonesians, and the dispersed nature of their presence in Indonesia, means that little can be done to pre‑empt any attacks on Sino Indonesians and their assets”.
The Tribunal referred to information that since 1999 “there have been no reports of any significant violence, harassment or rioting directed towards the ethnic Chinese for reasons of ethnicity”. However, it quoted the existence of increased local “Muslim Christian tensions in some parts of the country”, including “serious sectarian rioting on Lombok following riots between Muslim and Christian populations in the Moluccas” in January 2000. It noted: “some press reports noted that many of the island’s Christian population were of Chinese ethnicity”. It referred to the response of the Indonesian Government to this rioting and in subsequent years, and said that it “has taken strong measures to control sectarian violence in these areas and generally and has been successful in reducing the level of rioting and consequent violence”.
Under the heading “Findings and Reasons”, the Tribunal accepted that the applicant “was born, educated and lived his whole life on the island of Lombok before his arrival in Australia”, and that he had “operated a clothing shop in [town] which is the capital of Lombok”. It accepted that he was “of Chinese ethnicity and does not claim to have any particular religious beliefs”.
It found that the country information confirmed rioting on that island in January 2000, and that these “occurred as a result of a reaction to anti Christian sentiments expressed at a meeting conducted by some members of the Islamic community in Lombok”. It accepted that “the applicant’s shop was damaged during the riot in January 2000 and that windows were smashed and clothing stocks stolen”.
The Tribunal said it had “some doubts” in relation to the claim that the shop had also been “damaged” in “a smaller incident” in November 2003. However it said:
for the purposes of this decision I accept that a minor sectarian incident may have occurred in [town] [and] that the applicant left his shop when he heard about the incident. I accept for the purposes of this decision that when he returned he found his shop had been damaged.
The Tribunal then reached two conclusions which provided independent reasons for deciding, in effect, that the applicant’s history did not provide a basis for concluding that there was a real chance of persecution of the applicant for a Convention reason if he returned to Indonesia.
Each of these conclusions was the subject of several grounds of review which were argued by the applicant’s counsel by reference to an amended application filed in court. I shall address each of them separately. The Tribunal also considered the position of the applicant generally as an ethnic Chinese person in Indonesia, but its reasoning in this respect was not the subject of attack, and I need not examine it.

The damage sustained by the applicant was not persecution within the Convention definition

The Tribunal’s reasons which implicitly arrived at this conclusion were:
I accept that the damage and looting of the applicant’s shop by members of the community involved serious harm however I do not accept that the harm resulted from systematic and discriminatory conduct by members of the Islamic community and I do not accept that the damage was caused because of his Chinese ethnicity. The country information indicates and I accept that the riot in 2000 arose from an expression of anti Christian sentiments at a meeting and acted upon in the heat of the moment by a large group of Muslims who had been attending that meeting.
I do accept that a large number of Christians on the island were of Chinese ethnicity and that the applicant may have been imputed with Christian beliefs. The applicant also claims that his status as a non Muslim puts him at greater risk of harm. Even though I accept that the applicant may have been imputed with Christian beliefs or with the status of a non Muslim, I find that the damage caused to the applicant’s property in the riots resulted from random and sporadic incidents and not from systematic, discriminatory and targeted conduct against the applicant for reasons of his ethnicity or for reasons of religion. I do not accept that the damage caused arose from deliberate or premeditated conduct on the part of the perpetrators.
The Tribunal’s reasoning in this passage is compressed, and at times ambiguous. Although it makes no reference to s.91R of the Migration Act, I consider that the Tribunal should be understood as having found that the harm suffered by the applicant himself in the rioting was “serious harm” within s.91R(1)(b), but that it did not “involve serious systematic and discriminatory conduct” within s.91R(1)(c).
I had a concern that the Tribunal’s consideration of whether the harm was “targeted” and “arose from deliberate or premeditated conduct on the part of the perpetrators” imposed a more demanding test than is required by the statutory test of “systematic”. On current High Court authority, this may mean no more than that the harm was not “randomly” inflicted on the claimant by its perpetrators (c.f. Minister for Immigration & Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 at [18], [100], [193] and [223]).
However, counsel for the applicant did not contend that the Tribunal made any error in its understanding of “persecution” under s.91R.

I accept that the Tribunal’s reasoning should not be read as imposing the tests of targeting and premeditation as necessary requirements, but only as indicating its consideration of evidentiary issues which were relevant to its characterisation of the harm suffered by the applicant during the rioting.
The contentions of the applicant’s counsel focused upon the Tribunal’s statement: “I find that the damage caused to the applicant’s property in the riots resulted from random and sporadic incidents”. He accepted that such a finding was a legally sufficient reason for finding that the damage was not “persecution” within the Convention definition read with s.91R. However, he argued in his written submission:
There was no basis in the evidence whereby the Tribunal could draw an inference that the harm suffered by the Applicant in the past was no more than just random and sporadic incidents unconnected in any way with religious and racial intolerance. The Tribunal’s finding was not inference, it was unfounded and no more than speculation. If this finding is put to one side the only conclusion open to the Tribunal was that the Applicant did, at least, face a real risk of harm.
The amended application sought to characterise this error as a jurisdictional error in several alternative ways:
2.The Tribunal erred in that it made a finding of fact that was not open to it on the evidence and it thereby erred in law.
3.The Tribunal erred in that on the materials before it and the findings that it made the only conclusion open to it was that the Applicant did have a well founded fear of persecution in that there was necessarily a real risk that he could be persecuted should he return to his place of former residence.
4.For the reasons set forth in paragraph 3 hereof, the decision of the Tribunal that the Applicant’s fear was not well founded was unreasonable in the Wednesbury sense.
Counsel did not cite authority which establishes that jurisdictional error would arise if I accepted any of these grounds in the terms in which they are framed. However, I am prepared to assume that jurisdictional error could be found if I were persuaded that this finding of the Tribunal was “not open to it on the evidence”, or was “unreasonable in the Wednesbury sense” (c.f. Minister for Immigration & Multicultural Affairs v Eschetu (1999) 197 CLR 611 at [40]‑[44], [101], [124]‑[127], [145]‑[147], [159], [183]‑[188]; Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 at [9], [36]‑[37], [81], [128], [137]; and Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [38]).
However, I am not so persuaded. A central point in counsel’s argument was that the Tribunal’s finding was illogical or unreasonable in view of its implicit finding in the first part of the same sentence: “I accept that the applicant may have been imputed with Christian beliefs or with the status of a non Muslim”. He pointed to country information, apparently accepted by the Tribunal, which suggested that Muslim anti‑Christian rioters directed their violence against all persons of Chinese ethnicity. He argued that from these findings that the Tribunal could logically have found that the perpetrators of the damage to the applicant’s shop were motivated by race and religion to select the applicant for their attention. He also argued that, even if this was not the only conclusion open to the Tribunal, it could not reasonably have arrived at a conclusion which excluded this as a possibility with the requisite confidence required under the “real chance test” (c.f. authorities extracted by me in SZDTZ v Minister for Immigration & Anor [2005] FMCA 1392 at [19]‑[20]).
However, I am not persuaded that the Tribunal’s reasoning reveals jurisdictional error. The task of factual assessment of the character and causes of the damage suffered by the applicant’s shop was centrally for the Tribunal to perform, and there are abundant authorities (including those I have cited above) which caution against a court on judicial review imposing its own factual assessments of the material. In the present situation, my difficulty in determining whether these findings were not legally open to the Tribunal is compounded by the absence of a transcript of the applicant’s evidence to the Tribunal. On the material which is before me, I am far from satisfied that it was not open to the Tribunal to assess his evidence, in the light of all the country information before the Tribunal and its own experience in these matters, as showing that his property damage was “random and sporadic”, and of the nature of “collateral damage” which was not directed at him personally by the rioters nor by persons taking advantage of the riot.

Not without some hesitation, I also reject the contention that the sentence containing the critical adverse finding contains illogical reasoning giving rise to jurisdictional error. To make sense of the sentence, consistent with Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 277 and 291, I cannot read the Tribunal as making a finding that the persons who damaged the applicant’s shop were the same persons who “imputed” him with Christian beliefs and that they caused the damage motivated by that identification. I consider that, reading the reasoning as a whole, the Tribunal did not intend such a finding, and its reasons should not be understood to have made it.
I therefore reject grounds 2, 3 and 4 of the applicant’s amended application.
Ground 5(a) also was directed at the Tribunal’s finding that the damage suffered by the applicant was not persecution coming within the Convention definition. It said:
5.The Tribunal erred in that it failed to take into account and consider:
(a)the evidence showing that during the course of the January 2000 riots the rioters attacked chinese owned establishments and not simply religious institutions (CB 55 to 75, 72.4 for example);
Counsel for the applicant referred me to the documentary evidence forwarded by the applicant to the Tribunal. This includes much material in a foreign language which I cannot read. It also included a 2002 UNHCR report, in which counsel took me to one passage:
Anecdotal reports suggest, however, that ethnic Chinese have been caught up in at least some sectarian violence. During three days of rioting in January 2000 on Lombok, a small island just east of Bali in central Indonesia, Muslim mobs attacked ethnic Chinese, looted and destroyed homes and shops, and burned 11 churches (DP 22 Jan 2000).
My short response to this ground, is that I am not satisfied that the Tribunal failed to give consideration to this passage. In a passage of its reasons which I shall set out below, it said that it read the “English language material submitted by the applicant”. In the passage extracted above, the Tribunal appears alive to this or similar information, when accepting that Chinese Indonesians might be “imputed with Christian beliefs” by rioters. I am not persuaded that the Tribunal failed to give this evidence consideration before concluding that the damage which was suffered by the applicant during the two riots was not targeted and motivated by such a perception.
I therefore do not accept that any jurisdictional error vitiated the Tribunal’s conclusion that the applicant had not suffered “persecution” under the Convention read with s.91R. Moreover, even if I am wrong, the Tribunal’s decision also rested upon its findings about state protection and, for reasons given below, I cannot find error affecting these findings.

State protection was reasonable and adequate

The second, alternative, reason given by the Tribunal for not accepting the applicant’s history in the 2000 and 2003 riots as a basis for a well‑founded fear of persecution in the future, is found in its reasoning which followed its conclusions about “persecution”. This was:
In any event I am also mindful of recent High Court authority which has held that the willingness and ability of the state to protect its citizens from the acts of private individuals is relevant as to whether the conduct giving rise to the fear amounts to persecution (MIMA v Respondents S152/2003 (2004) 205 ALR 487 at [21]). I have considered the country information available on the willingness and ability of the Indonesian government to protect its citizens from sectarian or ethnic violence. The country information indicates and I accept that the Indonesian government through both its police and military authorities have taken strong and effective measures to prevent and control sectarian and ethnic violence in recent years. The particular country information on the 2000 [town] riots indicates, and the applicant also gave evidence, that the police acted very effectively in controlling the riot and preventing further violence. I find that the current government of Indonesia has demonstrated that it is willing to protect its citizens and has successfully reduced sectarian and ethnic violence in [town] specifically, and generally throughout Indonesia. The country information also indicates and I accept that the government of Indonesia is willing and capable of providing protection to the applicant on a non discriminatory basis.
The English language material submitted by the applicant also supports my findings on the availability of state protection and the significant improvement in the security of the ethnic Chinese community in Indonesia since the May 1998 riots.
I have considered the situation if the applicant returns to Indonesia now or in the foreseeable future as a person of Chinese ethnic background. Taking into account the country information suggesting that there has been no significant anti Chinese riots or violence towards members of the Chinese community since 1999 I do not accept that he faces any risk of serious harm by way of targeted ethnic violence. As stated above I also consider that if he were at risk of sectarian violence for reasons of imputed Christian or non Muslim beliefs I consider that the level of state protection available is reasonable and adequate.
Ground 1 of the amended application contended:
1.That the Tribunal erred in that having found that State protection was available the Tribunal misdirected itself in law as to the significance of that finding and thereby failed to determine whether the Applicant’s fear of persecution was well founded.
PARTICULARS
The Tribunal directed itself that the question was whether the level of State protection was reasonable and adequate, which it so found, (CB p.100) whereas the correct test is whether “the government of the country of nationality … will provide the Applicant with a level of protection sufficient to remove a real chance of persecution in the country in question …” (MIMA v Prathapan (1998) 156 ALR 672 at 681) (“Prathapan”).
I consider that this ground proceeds upon an incorrect appreciation of Prathapan’s case. In that case, the Full Court followed reasoning of a previous Full Court in Minister for Immigration & Multicultural Affairs v Thiyagarajah (1997) 151 ALR 685 (“Thiyagarajah”). Both cases concerned the correctness of findings by a Tribunal that “effective protection” was available in France for Sri Lankan Tamils. The High Court has subsequently overruled the significant reasoning in Thiyagarajah which implied a requirement to exclude such protection before protection obligations on Australia could be found under s.36(2) of the Migration Act (see NAGV and NAGW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 6). However, I accept that the Full Court’s examination in Thiyagarajah and in Prathapan of the Tribunal’s reasoning on this issue may have continuing relevance and authority when considering a Tribunal’s assessment of whether a refugee claimant would receive adequate protection from his feared persecution if he returned to his country of nationality.
In Thiyagarajah, the Tribunal’s actual finding was that “there was no real chance that the French authorities are unable or unwilling to provide the degree of protection normally expected of a government” (see 151 ALR at 705 line 15 and 706 line 45). In the Full Court, von Doussa J described this as a finding that there was not a “real chance” that the authorities in France “would not provide a level of protection sufficient to remove a real chance of persecution in France by the LTTE”, and held that it was “clearly open” to the Tribunal to make its finding (see 151 ALR at 707 lines 15 and 40).
In Prathapan, the Tribunal’s actual finding was that it was not satisfied that “there was a real chance the responsible French authorities would not or could not protect Mr Prathapan from persecution in France by the LTTE” (see 156 ALR at 676 line 5 and 681 line 28). The Full Court upheld this finding as a conclusion of fact which the Tribunal was entitled to reach. Lindgren J, who gave the leading judgment, considered that the Tribunal’s reasoning was indistinguishable from the reasoning which was upheld in Thiyagarajah. He identified (at 156 ALR page 681 line 7) from the judgment of von Doussa J a holding:
that the tribunal had been entitled to make the factual finding that a fear by Mr Thiyagarajah that there was a real chance that the French authorities would not extend to him “the degree of protection which would be extended to French nationals and would not provide a level of protection sufficient to remove a real chance of persecution in France by the LTTE” was not well founded.
In my opinion, it is clear from a careful reading of the two cases that:
i)The findings which were made by both Tribunals and upheld by the Full Courts were, in fact, couched in the usual terms addressing whether a state was “willing and able” to give protection at a standard which the Tribunal thought to be adequate; and
ii)Neither judgment sought to formulate a generally applicable minimum test for adequate state protection as being a “level of protection sufficient to remove a real chance of persecution”.
The factual circumstances presented in both cases addressed the readiness of France to extend its usual standard of protection to Tamil refugees, and it is unsurprising that von Doussa J would describe the Tribunal’s finding in the way he did. However, in my opinion he did not intend to suggest that more was needed to establish state protection than that the state should be able and willing to provide acceptable measures of protection. He should not be understood to have proposed that a tribunal must in all cases be satisfied that a real chance of persecution has been “removed” in any absolute sense. This is clear from the “first” proposition which Lindgren J extracted from the judgment of von Doussa J:
the test under the Convention definition was not whether there was a well‑founded fear that the country of nationality was unable to “guarantee” protection against persecution.
The same point has subsequently been emphasised in the High Court in Minister for Immigration & Multicultural Affairs v Respondent S152 of 2003 [2004] HCA 18 (“Respondents S152/2003”):
[26]No country can guarantee that its citizens will at all times, and in all circumstances, be safe from violence. Day by day, Australian courts deal with criminal cases involving violent attacks on person or property. Some of them may occur for reasons of racial or religious intolerance. The religious activities in which the first respondent engaged between May and December 1998 evidently aroused the anger of some other people. Their response was unlawful. The Ukrainian state was obliged to take reasonable measures to protect the lives and safety of its citizens, and those measures would include an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system. None of the country information before the Tribunal justified a conclusion that there was a failure on the part of Ukraine to conform to its obligations in that respect.
In the present case, the Tribunal instructed itself on the relevant law in relation to persecution feared from non‑state agents by adopting a “boiler plate” summary which said:
The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Counsel for the applicant did not contend that this revealed any error of law. It would be difficult to find error, since it is sourced in the judgment of Brennan CJ in Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 at 233, which was recently cited as authoritative by Gleeson CJ, Hayne and Heydon JJ in Respondents S152/2003 (supra) at [19]. Elsewhere in their judgment, it is not possible to find support for the “test” which counsel for the applicant sought to elicit from Prathapan. Rather, in my opinion, their Honours refer to the question which is required to be addressed in terms no more specific than that a Tribunal should, in relevant circumstances, address “the willingness and ability of the state to discharge its obligation to protect its citizens” (c.f. at [21], [24], [29]).
For reasons which I discussed in SZDWR & Anor v Minister for Immigration [2005] FMCA 860 at [30]‑[38], I consider that courts on judicial review have avoided confining the question of “adequate protection” by any precise formulation of what is an essentially factual issue relating to the particular circumstances of the feared persecution and the country situation. Illustrating this, I referred in that case to the discussion of Auld LJ in Bagdanavicius v Secretary of State for the Home Department [2003] EWCA Civ 1605 at [47]‑[48] and to his Lordship’s summary at [55]. Relevant to the present issue, is his fourth proposition:
4)Sufficiency of state protection, whether from state agents or non‑state actors, means a willingness and ability on the part of the receiving state to provide through its legal system a reasonable level of protection from ill‑treatment of which the claimant for asylum has a well‑founded fear; (citations omitted).
The present Tribunal’s reasoning as to the protection which the applicant could expect from the Indonesian government in relation to the risk of damage during riots is set out above. It includes clear findings that:
the current government of Indonesia has demonstrated that it is willing to protect its citizens and has successfully reduced sectarian and ethnic violence in [town] specifically, and generally throughout Indonesia. The country information also indicates and I accept that the government of Indonesia is willing and capable of providing protection to the applicant on a non discriminatory basis.
…
I also consider that if he were at risk of sectarian violence for reasons of imputed Christian or non Muslim beliefs I consider that the level of state protection available is reasonable and adequate.
These findings were made after the Tribunal considered relevant country information, and were in my opinion open to the Tribunal on that information. No case was presented to the Tribunal seeking to persuade it that the likely responses of the Indonesian government would not meet some “international standard” of protection from rioting (c.f. Respondents S152/2003 (supra) at [27] and [29], and Heerey J in MZ Raj v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1261 at [26], and also my judgment in Applicants S1573 of 2003 v Minister for Immigration & Anor [2005] FMCA 47 at [28]‑[34]).
On the material which was before the Tribunal, I consider that no error of law has been demonstrated in its findings that adequate state protection would be available to the applicant (c.f. SZBBP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 167 at [15]).
For the above reasons, I reject ground 1 of the amended application.
A subsidiary ground which also sought to challenge the Tribunal’s conclusion as to an available and adequate level of state protection, was ground 5(b) and (c):
5.The Tribunal erred in that it failed to take into account and consider:
(b)the evidence that despite government action to prevent ethnic and religious violence the devolution of power from the central government would create security problems for ethnic chinese (CB 72.9); and
(c)the evidence showing that the potential for ethnic and religious violence still remained just below the surface (CB 74.1).
Counsel for the applicant identified the evidence which he contended the Tribunal had failed to take into account, as being the following two statements in the UNHCR report which the applicant presented to the Tribunal:
Current efforts to devolve power to Indonesia’s provincial governments, however, could create security problems for ethnic Chinese if these efforts result in less protection from the central government, military, and police (Indonesia specialist 8 May 2002).
…
The Ohio State University political scientist said he expects some outbreaks of violence against ethnic Chinese if the economy plummets again to the depths reached in 1997 and 1998, although not necessarily on the scale of the past. “Will 1998 happen again?” he asked rhetorically. “It’s hard to say. It doesn’t take much” (16 May 2002).
Counsel’s written submission argued:
The use of the incorrect test has caused [the Tribunal] to ignore this consideration. If it had asked whether the domestic protection was such that a real risk of harm was negated it would have necessarily taken into consideration that even in the absence of actual riots in more recent times the threat, to Chinese people, remained just below the surface.
I consider that this ground fails for several reasons. As indicated above, I do not accept that the Tribunal was obliged to ask itself whether the risk of harm was “negated”. It follows that the evidence of expert speculations that “security problems” might recur with devolution, or that “1998” might happen again, would not have the evidentiary significance which was contended.
I do not consider that the Tribunal was obliged to give that evidence any particular prominence or weight, when addressing the ability and willingness of the Indonesian government to respond adequately to a recurrence of rioting. I am therefore not prepared to infer from the absence of express discussion of this evidence, that the Tribunal failed to read and take into account all of the report in which it appeared. The Tribunal said that it read that material, and I accept that it did.
I refuse the implicit invitation that I should myself form judgments of the effect of the evidence which was before the Tribunal concerning the risks from rioting facing Indonesians of Chinese ethnicity. This is an area which is fundamentally within the province of the Tribunal alone.
For the above reasons, I do not uphold any of the grounds argued for the applicant. I find that the Tribunal’s decision was not affected by jurisdictional error. It is therefore a “privative clause decision” for which relief is barred under s.474(1), and I dismiss the application.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 5 December 2005