SZFJZ v Minister for Immigration - [2005] FMCA 1844

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFJZ & ORS v MINISTER FOR IMMIGRATION

[2005] FMCA 1844

MIGRATION – Application to review a decision of the Refugee Review Tribunal – whether the decision of the Tribunal was affected by jurisdictional error or failed to consider all information – whether Tribunal used correct evidence to justify affirming decision – credibility findings – lack of a particularity – no jurisdictional error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 424A(3)(b), 441, 441A, 475A

Migration Legislation (Electronic Transactions and Methods of Notification) Act No. 58 of 2001
Migration Regulations 1994, reg 4.31A

SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601
S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289
Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamry (2001) 110 FCR 27
M55 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 131
SZFCN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 858
NAZY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 744
SZDQL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 769
MZWMQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1263
The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Limited (1949) 78 CLR 389
Re Commonwealth; Ex parte Marks (2000) 177 ALR 491

Applicant:

SZFJZ & ORS

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 26 of 2005

Judgment of:

Pascoe CFM

Hearing date:

16 December 2005

Delivered at:

Sydney

Delivered on:

19 December 2005

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Mr D Jordan

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

That the Refugee Review Tribunal be joined as a party to these proceedings.
That the application be dismissed.
That the applicant pay the first respondent’s costs fixed in the sum of $5000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 26 of 2005

SZFJZ & ORS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application made under s.39B of the Judiciary Act 1903 (Cth) and s.475A of the Migration Act 1958 (Cth) (“the Act”) with respect to a decision of the Refugee Review Tribunal (“the Tribunal”) made on 15 May 2000 and handed down on 30 May 2000 affirming a decision of a delegate of the respondent not to grant the applicant a protection (class XA) visa. Consistent with SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162, I join the Tribunal as a party to the proceeding.
The applicants are husband and wife and their son. Their family however includes a daughter and elder son who also made applications for protection visas but are not named as parties in the proceedings in this application. Only the applicant husband applied for a protection visa on the basis that he had specific claims for asylum. The applications for protection visas by the other applicants were made on the basis that they were members of the applicant’s family.
The applicant husband arrived in Australia on 15 March 1998. The applicant’s wife and younger son arrived in Australia on 30 October 1998 and his elder son on 23 July 1999. He applied for a protection visa on 6 April 1998 and his wife and son lodged applications for same on 6 November 1998. The applications were refused by a delegate of the respondent on 30 July 1999.
The applicants were previously a party to the Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601 class action in the High Court of Australia. That proceeding was remitted to the Federal Court of Australia by order of Gaudron J made on 25 November 2002 and was subsequently dismissed by Emmett J on 20 February 2004 in S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289.
The applicants rely on the amended application and supporting affidavit filed 18 May 2005 and their further application filed in Court on 16 December 2005. The applicant contends that the decision of the Tribunal is affected by legal error, procedural error and an improper exercise of power and that there was no correct evidence justifying its decision.

The Tribunal decision

At the Tribunal hearing only the applicant husband made specific claims under the Convention. The Tribunal had before it the Department’s file, the protection visa applications and written submissions in support of the application and application for review. The applicants appeared before the Tribunal on 9 May 2000 and gave oral evidence assisted by an interpreter in their own language. In their application for review to the Tribunal no additional claims or information were provided.
On 1 May 2000 the Tribunal received a bundle of documents and photographs without a covering letter or explanation for most of what was provided. Included in this bundle were:
a)Three photographs of a ladies and gents hair studio;
b)Fifteen photographs of damage done to Christian Churches and described on the back in Indonesian with dates in 1996, 1997, 1998 and 1999;
c)A copy of the eldest daughter’s student Identification card for University of Technology Sydney (UTS) for 2000;
d)A membership card for the applicant husband from the PDI issued on 6 September 1999 stating that he is “Kristen”, his membership number is also provided with the last numbers being /IX/99;
e)An original of a ministry certificate for the wife; and
f)Two translated documents from the Bethel Church of Indonesia, the first dated in July 1994 saying that a Prayer fellowship group is to be established called “Narwastu” and the second dated in March 2000 which states that the “Narwastu” fellowship was discontinued “by mutual consent” on 1 January 1995 “In my view of the situation at that time which no longer made it possible”. It also states that the fellowship had been going since 1985.
The applicants are nationals of Indonesia. The applicant husband is of Indonesian ethnicity and was born a Muslim. The applicant wife is a Christian of Chinese ethnicity. The applicant claimed persecution for a Convention reason because he had married a woman of Chinese ethnicity and had converted to Christianity. He also claimed to fear persecution because he had changed political allegiance from the Golkar Party to the PDI Party.
In its assessment of the applicant wife and daughter’s evidence the Tribunal found that, on the whole, they were not credible witnesses because their evidence was inconsistent with independent country information and evidence from the applicant husband. The Tribunal made reference to some of the exaggerated evidence at page 121 of the Court Book and noted that he had made appropriate concessions. The Tribunal however accepted the evidence of the elder son.
The Tribunal accepted on the evidence that the applicant husband had been subject to adverse comment in Indonesia on infrequent occasions in relation to their race and religion and that the applicant wife was yelled at and had stones thrown at her at the house where she conducted a prayer group. However, the Tribunal concluded that these occasional instances of harassment were not of a sufficient seriousness to amount to persecution within the meaning of the Convention. This finding was supported by independent country information which suggested that the practice of Christianity was recognised in Indonesia and that there had been an improvement in race relations.
No claim was advanced before the Tribunal about the violence in 1998 directed towards ethnic Chinese. However the Tribunal considered country information on this topic. The Tribunal accepted that ethnic Chinese and minority religious groups had faced difficulties and that, in particular, the May 1998 riots involved serious property damage and attacks upon ethnic Chinese people. In the absence of any claim by the applicants in relation to the May 1998 riots, and taking into account evidence of the subsequent change in circumstances, the Tribunal found that the applicants did not have a well founded fear of persecution within the meaning of the Convention. The finding was supported by the concession of the applicant husband in that most of the problems which had occurred, no longer existed.
The Tribunal accepted that the applicant husband was attacked by members of the Golkar Party in 1997 but found that this was a single incident which could not be considered to be persecution for the purposes of the Convention. The Tribunal noted that the applicant had joined the PDI Party which was in government at the time of the Tribunal decision and that there was no reason to think that he would be denied protection from the authorities if required.
The Tribunal was satisfied that there would be adequate state protection available to the applicants if they were to return to Indonesia and found that the claims of discrimination differed among the applicants.
Although the applicants do not raise the question of compliance with s.424A of the Act it is appropriate given that the applicants are self-represented that I consider this issue as it arose in the SAAP (supra). The Tribunal made adverse credibility findings in relation to the applicant wife and daughter. Those findings were in relation to inconsistencies between the evidence of the applicant husband and the evidence of the wife and daughter. Those inconsistencies were put to the wife and daughter but there is no evidence of any document being provided in accordance with ss.424A and 441A of the Act. In SAAP the High Court considered ss.424A and 441A as they stood after 10 August 2001 at which time the amendments pursuant to the Migration Legislation (Electronic Transactions and Methods of Notification) Act No. 58 of 2001 (SAAP, at [86], [113]). At the time of the Tribunal decision relating to this case it was subject to ss.424A and 441A as they stood before those amendments came into effect. This does not provide a basis to distinguish SAAP because ss.424A and 441A as applicable to the Tribunal decision also required that the relevant information must be provided in documentary form. Sackville J said in SZDQL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 769 at [55] that s.424A(1) requires identification of the reason for affirming the decision under review. However, this is a case where SAAP should be distinguished because the information in this case was provided to each of the applicant for the purposes of each of the applicants before the Tribunal and accordingly fell within the exception provisions of s.424A(3)(b) of the Act as construed by the Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamry (2001) 110 FCR 27 at [17]-[18], [35]-[41]; M55 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 131 at [22]-[25], per Gray J; SZFCN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 858 at [18], per Barnes FM and in contrast NAZY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 744, per Jacobson; MZWMQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1263 at [24], per Marshall J because in this case the applicants made combined applications for review which is regulated by regulation 4.31A of the Migration Regulations 1994 (Cth). The inconsistent information was provided by the applicants for the purpose of each of their applications, as a family unit, for review by the Tribunal. Evidence from the applicant husband was received as part of his request to participate in a hearing. Evidence from the applicant wife and daughter was received because they wished to give evidence before the Tribunal.
I am not satisfied that the Tribunal decision is affected by jurisdictional error. The findings were findings of fact and were reasonably open to the Tribunal on the evidence it had before it. Moreover, those findings were supported by appropriate evidence. The applicants have failed to particularise either of the two grounds. In my view they have rather attempted to bring about a re-examination of the merits of the case. It is well established that this Court is precluded from such review.
In any event given the delay between the dismissal by Emmett J on 20 February 2004 and the commencement of these proceedings on 6 January 2005 I am of the view that relief should be refused on discretionary grounds (SAAP at [80], Per McHugh J, [211], per Hayne J; The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Limited (1949) 78 CLR 389 at [400]; Re Commonwealth; Ex parte Marks (2000) 177 ALR 491 at [16]) and I note that his Honour at [29] in Applicant S1174 (supra) said delay following refusal of orders nisi would remain relevant. In any event the applicants both in their written material and oral submissions have not particularised jurisdictional error or any other error that would warrant interference in the Tribunal decision and failing identification of jurisdictional error the Court cannot grant relief on a discretionary basis.
Accordingly, as no jurisdictional error is apparent it is appropriate that the application be dismissed with costs.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Pascoe CFM

Legal Associate: Peter Smith

Date: 19 December 2005