SZFAC v MIMIA and ANOR and SZFAE v MIMIA and ANOR
[2005] FMCA 1985
•5 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFAC v MIMIA & ANOR and SZFAE v MIMIA & ANOR | [2005] FMCA 1985 |
| MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – merits review. |
| Migration Act 1958 (Cth), s.474 |
| Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 |
| Applicant: | SZFAC |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3167 of 2004 |
| Applicant: | SZFAE |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3171 of 2004 |
| Judgment of: | Emmett FM |
| Hearing date: | 5 December 2005 |
| Date of Last Submission: | 5 December 2005 |
| Delivered at: | Sydney |
| Delivered on: | 5 December 2005 |
REPRESENTATION
| No appearance by or on behalf of either applicant |
| Solicitors for the Respondent: | Mr L. Leerdam, Phillips Fox |
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 pursuant to r.13.03A(d) of the Federal Magistrates Court Rules the proceedings are dismissed.
That applicant SZFAC pay the First Respondent's costs in the amount of $2500.
That applicant SZFAE pay the First Respondent's costs in the amount of $2500.
Direct the First Respondent to notify each of the applicants of today's orders and also provide them with a copy of r.16.05 of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3167 of 2004
| SZFAC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
SYG3171 of 2004
| SZFAE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application to proceed in absence of applicants
This matter was set down for hearing today on 29 November 2005 at which time a letter was couriered to each of the applicants at the address identified by them as their postal address for service on the application filed on 25 October 2004 (“the Application”). Neither applicant has appeared this morning and the First Respondent seeks orders that the matter proceed to final hearing in the absence of the applicants and the Application be dismissed.
The matter first came before the Court on 4 November 2004, at which time the matter was set down for hearing on 7 November 2005. On that occasion, orders were made with the consent of each of the applicants. Those directions included that the applicants file and serve an amended application by 27 January 2005 and file written submissions in support of their Application 14 days before the hearing. No further document had been filed by either of the applicants.
On 20 July 2005, I dismissed a motion filed by the First Respondent that the matter be dismissed for non-compliance with the directions of 4 November 2004. Despite the failure of either applicant to appear at that motion, the applicants were granted leave to file and serve an amended application by 16 September 2005 and were otherwise directed to file any written submissions in support of an application 14 days prior to the hearing. A final hearing was set for today's date. Again, no further documents have been filed by or on behalf of either of the applicants.
On 16 November 2004, the applicants were notified by my Chambers that the hearing date would be 9 December 2005 rather than 5 December 2005. This notification was an error and on 29 November 2005, the letters confirming the hearing date of 5 December were couriered to each of the applicants. I note that the First Respondent also couriered a letter to each of the applicants on 1 December 2005 notifying them of today's hearing date.
Even if the applicants understood the hearing date to be 9 December 2005, there has been no compliance by them of the directions of 20 July 2005 in respect of the filing of an amended application or any submissions in support of their Application.
In any event, I am satisfied that having been couriered on 29 November 2005 with notice of today's hearing date, that there has been sufficient time for the applicants to appear at the hearing today. Accordingly, I am satisfied that it is appropriate for the matter to proceed today in their absence.
The applicants' applications filed on 25 October 2004 are in virtually identical terms and neither identify the relief sought nor the grounds upon which that relief is sought. However, particulars are provided by the applicants as follows:
“Particular 1:
Danger of my life taken living next to a mosque taken into consideration.
Particular 2:
That my relatives all reside in Australia as a basis.
Particular 3:
My weakness in character was no independence taken into consideration.”
There are no particulars or details furnished by the applicants in any form before this Court expanding on those claims.
The applicants are a brother and sister and citizens of Indonesia who arrived in Australia on 12 December 2003. They lodged applications for protection visas on 12 January 2004. The applicants are of Chinese ethnicity and Christian by religion. The applicants claim persecution by Indonesian Muslim groups because of their religion and their ethnicity. On 24 August 2004 the applicants gave oral evidence before the Tribunal in support of their review application.
Relevantly, the applicants claimed that their parents and all but one of their siblings died in a car crash on 17 February 2002 in Indonesia and that since that time they have been harassed continuously by Indonesian Muslim groups. They claimed that local Muslim cleric priests often barged into their house asking for money, abusing them and threatening them. The Tribunal considered in detail the claims of each of the applicants and ultimately concluded that it was not satisfied that either of the applicants has a well founded fear of persecution within the meaning of the Convention.
The Tribunal accepted that the applicants have suffered the loss of their parents and that they may have been more dependent on their parents and their parents’ protection. However, the Tribunal ultimately found that state protection was available to the applicants, the government deployed police and, if necessary, the army to protect the population and that perpetrators of violence are arrested. The Tribunal noted that:
“It cannot be said that the Indonesian authorities have tolerated ethnic violence or failed to provide an adequate level of protection to members of the ethnic Chinese community in such incidents.”
The Tribunal noted that individuals and property have been harmed and accepted that the applicant has a subjective fear of discrimination arising from his Chinese ethnicity should he return to Indonesia. However, the Tribunal did not consider that the applicant's fear was well-founded from an objective perspective. The Tribunal’s conclusion reflects proper consideration of the elements identified by the High Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389 in considering both the claim of subjective fear by the applicant and whether or not that fear was well founded in the event that either of the applicants were to return to Indonesia. The Tribunal concluded that there was not a real chance of persecution for a Convention reason, if the applicants were to return to Indonesia.
The Tribunal accepted the independent evidence before it that:
“Religious freedom is guaranteed by the constitution and that the government takes an active role in protecting citizens from sectarian strife.”
The Tribunal also noted that the influence of extremist and violent Islamacists is on the decline and that those responsible for such violence are being brought to court. The Tribunal found, in accordance with independent evidence, that the events of 11 September 2001 have resulted in the Indonesian Government and Muslim leaders strongly condemning violent actions in the name of Islam.
Particular 1 – Danger of my life taken living next to a mosque taken into consideration
In respect of Particular 1, nowhere in the Tribunal's decision does it refer to a claim by the applicants of a fear of danger to their life because they live next to a mosque. Further, there is no such claim identified by either applicant in their statements in support of their protection visa application. Such a claim was not raised by the applicants before the Tribunal, nor did it squarely arise on the evidence or material before the Tribunal. In those circumstances, it cannot be jurisdictional error for the Tribunal to have failed to consider the risk of persecution to each of the applicants because they lived next door to a mosque.
Particular 2 – My relatives all reside in Australia as a basis
The Tribunal noted the claim of the applicants that the only relatives they have who are willing to provide assistance are in Australia and that they have supported the applicants both financially and emotionally. The Tribunal also noted that the applicants have another brother whom they wish to bring to Australia. In the Findings and Reasons section of its decision, the Tribunal considered specifically the loss of the applicants' parents in considering whether there was a real chance of persecution for a Convention related reason were the applicants to return to Indonesia in the reasonably foreseeable future.
In the circumstances, it is clear that the Tribunal had regard to the applicants' evidence as to relatives who reside in Australia.
Particular 3 – My weakness in character was no independence taken into consideration
To the extent that this claim contends that the individual circumstances of each of the applicants was not considered, the Tribunal had particular regard in coming to its conclusion to the loss of the applicants’ parents and the vulnerability in which that event now placed them. The Tribunal accepted that the applicants may have some level of trepidation as members of a Christian minority in a country the majority of whose citizens are Muslim, and as I have referred to above, accepted that the applicants have a subjective fear of racial unrest should they return to Indonesia. However, for the reasons referred to above the Tribunal was not satisfied that the applicants' fear was well founded.
Accordingly, it is clear that the Tribunal did take into account in consideration of the applicants' claims the particular subjective position of each of the applicants.
None of the particulars identified by the applicants in their applications filed on 25 October 2004 are made out.
I should note that the Tribunal also found that, whilst the applicants may have suffered discrimination in the past on account of their ethnicity in relation to additional bureaucratic procedures, such discrimination did not constitute serious harm.
Accordingly I am satisfied that the Tribunal's decision is not affected by jurisdictional error and, pursuant to s.474 of the Migration Act 1958 (Cth), the decision is a privative clause decision and this Court has no jurisdiction to interfere.
Pursuant to r.13.03A(d) of the Federal Magistrates Court Rules the proceedings are dismissed.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S Riddle
Date: 31 January 2006
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