SZFPX v Minister for Immigration

[2006] FMCA 1468

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFPX & ORS v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1468

MIGRATION – Refugee – findings on credibility are a matter for the Tribunal – adequate state protection available to the applicant – no guarantee of absolute state protection – it is for an applicant to make out their case – the weight given to information is a matter for the Tribunal – the Tribunal applied the real chance test as it applied to a well founded fear of persecution for a Convention reason – the Tribunal’s findings were open to it on the material before it – application dismissed.

Migration Act 1958, s.91R(1)(c)
Federal Magistrates Court Rules 2001, Rule 13.03A(e)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18
Abebe v The Commonwealth (1999) 197 CLR 510
Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1998) 169 CLR 379

Applicant: SZFPX & ORS

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 264 of 2005

Judgment of: Nicholls FM

Hearing date: 25 September 2006

Date of Last Submission: 25 September 2006

Delivered at: Sydney

Delivered on: 6 October 2006

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondents: Ms. T. Wong

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The Refugee Review Tribunal is joined as the second respondent in these proceedings.

2. The name of the first respondent be amended to read “Minister for Immigration & Multicultural Affairs”.

3. The application is dismissed.

4. The applicant husband and wife pay the first respondent’s costs set in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 264 of 2005

SZFPX & ORS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed in this Court on 1 February 2005 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 16 January 1998 to affirm the decision of the delegate of the respondent Minister made on 25 February 1997 to refuse a protection visa to the applicants. The Tribunal is joined as the second respondent in these proceedings.

2. The applicants are husband, wife and their child, who are citizens of Indonesia. They arrived in Australia on 3 June 1996. On 6 September 1996 the applicants lodged an application for protection visas with the first respondent’s Department which was refused on 25 February 1997. The applicants were notified by letter on that date and applied for review of that decision on 21 March 1997.

3. Their claims to protection can be found in their application for a protection visa (reproduced at Court Book (“CB”) 1 to CB 32, particularly in an attached statement, prepared by their then representatives Adrian Joel & Co., at CB 1 to CB 5) and in their application for review to the Tribunal (reproduced at CB 49 to CB 51 and particularly in an attached statement at CB 45 to 48).

4. The applicants’ claims to protection were based on the claims of the applicant husband (“the applicant”). The applicant’s claims were based on treatment he received in Indonesia because of his Chinese ethnicity. He claimed that during his “student days”, among other things, his property was vandalised. He further claimed that in the course of his business life he was “discriminated against racially” in that he had difficulty obtaining a “certificate of business”, and was required to pay a greater sum of money (to obtain it). He further claimed that other monies were demanded by government officials in the course of conducting his business. He claimed that he was targeted because he was perceived as a “cash cow”, and that “native Indonesians” were not subject to such treatment. Further, the applicant claimed that his fear had a political dimension as he had been accused of having “Communist links” based on his Chinese ethnicity. He claimed that he participated in Indonesian Democratic Party (“PDI”) rallies, and joined this group before he left for Australia.

5. The Tribunal found:

   1)That the applicant and his wife were “broadly credible witnesses”. The Tribunal was prepared to accept the “facts” as stated by them, which were consistent with the independent country information before it (CB 69.2).

   2)In relation to claims arising from “race and religion”:

   a)It referred to independent country information and found that there was “no question” that “Chinese in Indonesia have been subject to periodic episodes of violence over a long span of time” (CB 69.5).

   b)With reference to relevant authorities, that it was not enough for the applicants to show that there are anti-Chinese riots and other “blameworthy conduct by Indonesians”, but it was necessary to show the Indonesian authorities do not, or cannot, provide a reasonable level of protection (CB 72.8).

   c)It referred to independent country information (CB 72.9), and found on the evidence before it, while acknowledging “the very real threats under which many Chinese in Indonesia evidently live” (CB 74.9), that the Indonesian government was willing and able to offer protection to Chinese (CB 75.2).

   d)That Chinese who face harassment in one part of Indonesia generally have the option to relocate to another part (CB 75.3).

   In this regard the Tribunal:

   (i)Noted that the applicant had been quite successful in Indonesia, having established his own business and completed 12 years of education (CB 75.6).

   (ii)Did not accept the applicant’s claims to financial hardship as he was able to travel for holidays to Australia, USA, Japan, Taiwan and Malaysia on different occasions and noted that he returned to Indonesia on each occasion which further indicated an absence of a fear of persecution (CB 75.7).

   (iii)Noted that the applicant registered with the “Indonesian Embassy in Sydney” shortly after his arrival and that this also indicated a lack of fear of the Indonesian authorities (CB 75.8).

   e)Concluded that the applicant and his wife did not face a real chance of being persecuted in Indonesia by reason of race (CB 75.9).

   3)In relation to the claims based on the applicant’s political opinion and activity, that:

   a)The applicant’s involvement with PDI was “obviously minimal and low profile” (CB 76.1).

   b)With reference to certain independent country information about PDI (CB 76.3), apart from specific (an in context distinguishable) instances mentioned in this information, there was no reference to “organised”, “consistent” or “officially sanctioned direct discrimination, persecution or harassment of PDI members/supporters” (CB 79.7).

   c)Having regard to the applicant’s “extremely low profile and minimal involvement with the PDI”, and with reference to the independent country information, there was not a real chance that the applicant would be persecuted in Indonesia because of his political opinion (CB 80.1).

   4)That even when the claims were considered “cumulatively” that the applicant and his wife did not have a well founded fear of persecution in Indonesia at the time of its decision, or in the foreseeable future, for any Convention reason.

6. In their application filed in this Court on 1 February 2005, the applicants complained that:

   “1. We believe that we are a Refugee because we believe we met the requirement of the protocol of Refugee Status under Convention Article 1A(2) so we doubt from DIMIA or RRT to refused our application for protection visa were correct.”

   This is particularised as follows:

   “We believe we are refugee we met the 4 keys element under Convention:

   1.We are outside our home country.

   2.     We fear being persecuted because one of Convention reasons: Race and Religion (See attachment “E”)

   3.   Our fear are objective not a subjective (See attachment “E”) [Appears to be country information downloaded from the internet]

   4.    The authority of our home country they were not able to protect us (See attachment “E”) so

   5.    We don’t want to avail ourselves under my home Country Authority protection.”

7. At the first Court date in this matter on 14 February 2005 the applicants were represented by solicitors (who subsequently filed a Notice of Ceasing to Act). Amongst orders made (by consent) by a Registrar of this Court (including the appointment of the applicant as the litigation guardian of the third applicant) the matter was set down for final hearing on 8 June 2006. This was later rescheduled to 26 June 2006 at 2:15 p.m.

8. On that date by facsimile transmission (sent 12.17 p.m.) the applicant sent the following to the Court (with a copy to the respondent’s solicitors):

   “I am sorry, I am not able to come for hearing on 26 June 2006 at 2:15 p.m. because I don't feel well.

   Enclosed Dr certificate copy.

   Thank you very much for your kind attention.”

   A copy of a Doctor's certificate dated 26 June 2006 was attached which stated that the applicant:

   “Is suffering from viral infection and is unable to attend work from 26/6/2006 to 27/6 2006.”

9. In all the circumstances the respondent’s solicitors agreed to taking this as a request for an adjournment, and consented to the Court granting an adjournment of the hearing until 25 September 2006 at 2.15 p.m. (the next suitable vacancy in the Court’s list). The applicants were duly notified.

10. On that date, and approximately one hour before the scheduled hearing, the Court received a facsimile from the applicant in the following terms:

    “I am sorry, I am not able to come for hearing on 25 September 2006 at 2:15 p.m. because I don't feel well.

    I enclosed Dr certificate copy and submissions

    Thank you very much for your kind attention.”

    The copy of the Doctor’s certificate from the same medical practice (it appeared to be the same Doctor) stated that the applicant:

    “Is suffering from viral infection and is unable to attend work from 25/9/2006 only.”

11. At the hearing Ms. Wong appeared for the respondents. None of the applicants appeared. Ms. Wong submitted that in light of the medical certificate presented by the applicant, she was instructed to oppose any adjournment on the basis that this was the second occasion upon which the applicant had given very late notice of an inability to attend the hearing, and further that the evidence in support of this application (even giving the applicant the benefit of doubt) was “scant”. Ms. Wong submitted that there was no direct reference to the Court proceedings and given the late notice, the respondent had not been able to undertake any enquiries, for example by calling the applicant’s Doctor to obtain further details. If it could be said that this communication constituted a request for an adjournment, then I agreed with Ms. Wong’s submissions and I would have, in all the circumstances, proceeded to a final hearing pursuant to Rule 13.03A(e) of the Federal Magistrates Court Rules 2001 (“the Rules”) on the basis that the applicant, and to the extent that he is the litigation guardian for the third applicant, provided written submissions to the Court such as to address (to an extent) any prejudice that the applicant may have otherwise suffered. The absence of the second applicant (that is, the applicant wife) remains totally unexplained before the Court. In all therefore, if this were a request for an adjournment on the part of the first and third applicants, then no adjournment should be granted for the reasons set out above.

12. I took the view however, that the communication from the first applicant was not in all the circumstances a request for a further adjournment. On reflection, Ms. Wong agreed. In my view the applicant's submission of the medical certificate on this occasion was different in one important particular to that on the previous occasion. On this occasion, the applicant provided written submissions. In my view, and clearly there is no express request before the Court for an adjournment of the hearing or that the hearing not continue as scheduled, I saw the provision of the medical certificate as being an explanation by the first applicant (and to the extent of that he speaks for the third applicant) as to his inability to attend Court today. However, I took the provision of the written submissions as indicating that the applicant sought to press his application. Given that Ms. Wong did not oppose leave being granted for the written submissions to be filed at this time, I could not see any reason to postpone the hearing further. The applicant explained his inability to attend, made no express request for any further adjournment or postponement, and significantly provided written submissions which, in all the circumstances, and particularly given the timing of these submissions, were for the purpose and method by which he sought to press his case before the Court today. The position of the second applicant, as I said earlier, remains totally unexplained and in all the circumstances, and for the reasons set out above, it was appropriate that the hearing proceeded pursuant to Rule 13.03A(e) of the Rules.

13. I note paragraph 17 of the respondents written submissions, which I accept and reproduce for the purposes of this Judgement:

    “Part 8 of the Act does not apply to this application for judicial review, because of the Applicant’s participation in the Lie class action and the handing-down of the decision under review prior to the commencement of the Migration Legislation Amendment (Judicial Review) Act 2001 (No.134 of 2001) on 2 October 2001: see SZDZV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 416 at [12]. In these circumstances, the Federal Magistrates Court has the same jurisdiction as the Federal Court to review the RRT’s decision “according to the general principles applicable to the granting of administrative law remedies”: S1781 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 1038 at [6].”

14. The applicants now complain about a Tribunal decision made on
    16 January 1998. I cannot see that what is asserted in the application rises above a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). The applicant’s reference to “attachment E” at item 3 in the application is clearly a reference to the four pages of printed material attached to the application which appears on its face to be material obtained from the Internet, dated 12 May 2004, which shows that at the time relevant to the Tribunal's decision there was violent unrest in Indonesia and that it impacted on the ethnic Chinese community.
    This appears to be part of a US State Department report on human rights in Indonesia. I note that a US Department of State Indonesia Report on Human Rights Practices for 1996 was before the Tribunal at the time it made its decision (reproduced at CB 137 to CB 165). It does not appear that the extracts of this report, provided by the applicants as an attachment to their application to the Court, come from the same annual version of the US State report (there is a reference to 1998 on one of the extracted documents provided by the applicants). But in any event, if the applicants are seeking to assert, by way of these extracts (and in particular with reference to those parts marked with “E”), that the Tribunal failed to take into account this information then this complaint cannot be made out. Even putting to one side the issues of the weight to be accorded to information and findings of fact being for the decision maker, it is clear that the Tribunal did not reject that violence had been visited on the Chinese community in Indonesia.
    At CB 69.4 the Tribunal states:

    “There is no question that Chinese in Indonesia have been subject to periodic episodes of violence over a long span of time.”

    Further, in relation to religion, the Tribunal made specific reference to information on this issue obtained from independent country reports (see CB 73 and CB 74). In all the circumstances, I cannot see that if what the applicants are complaining of is that the Tribunal did not accept that there were some difficulties for Chinese in Indonesia (both for ethnicity and religion), the applicants could succeed with any such complaint, given how the Tribunal approached these issues in its analysis and consideration. 

15. The applicants’ submissions complain that:

    “A. The tribunal made jurisdictional error in as much as it focused its attention to the issue of credibility and failed to take properly into account. Other evidences and materials in relation to the plight of many Chinese-Indonesian who had suffered persecution by reason of ethnicity.”

    Findings of fact, including findings on credibility, are a matter for the Tribunal (Re Minister for Immigration and Multicultural Affairs;
    Ex parte Durairajasingham [2000] HCA 1). In any event, while the Tribunal made reference to the issue of credibility (CB 69.1) it found that “the applicant and his wife were broadly credible witnesses”.

    
    

    What the Tribunal did not accept was that the applicant’s circumstances could be said to impute a particular profile, as opposed to a wholesale rejection of their credibility. I cannot see in all the circumstances that the Tribunal “focussed its attention to the issue of credibility”. Simply, the Tribunal accepted, in relation to its consideration of claims based on “race and religion” that Chinese in Indonesia had been subject to periodic episodes of violence (CB 69.3). The Tribunal found however that State protection was available. In relation to “political opinion and activity” the Tribunal found, based on independent country information available to it and on its finding that the applicant had an “extremely low profile and minimal involvement with the PDI” (CB 79.9 to CB 80.1) that there was no real chance that he would be persecuted in Indonesia for reason of his political opinion. All these findings were open to it on what was before it.

    “B.The Tribunal made jurisdictional error regarding for the Chinese people because the discrimination against the Chinese people can also tell as a real systematical discrimination.”

    To the extent that this complaint, clearly drafted some years after the Tribunal's actual decision, echoes the phrase “systematic discrimination” as it appears now in s.91R(1)(c) then this section became operational on 10 October 2001 and does not apply to the circumstances of the applicants’ case. To the extent however that the complaint is that the discrimination against the Chinese people in Indonesia was such, in its severity and repetition, as could be said to be raised to the level of systematic conduct which could amount to persecution, a plain reading of the Tribunal's decision record reveals that the Tribunal did address the issue of discrimination as it was said to affect Chinese in Indonesia and turned its mind to independent country information available to it. It acknowledged that discrimination did exist and while it accepted (at CB 74 and CB 75) that there are “very real threats under which many Chinese in Indonesia evidently live”, it found that there was adequate State protection available to people of Chinese ethnicity from the Indonesian government. As such it could be said that irrespective of the threats and level of discrimination visited on people of Chinese ethnicity, the Indonesian government provided adequate State protection. This complaint also does not succeed.

    “C.In fact the political game use Chinese as a scapegoats because always happen between 10 to 15 years seems the Authority never even tried to stopped that supposed they had to do their duty to protect all the people. They came after everything being destroyed.”

    This appears to be a complaint challenging the Tribunal’s finding that the Indonesian government does provide adequate State protection to people of Chinese ethnicity in Indonesia. Clearly, based on the independent country information before the Tribunal (to which it made specific reference in its decision record at CB 73 to CB 74), the applicant’s claim that the authorities “never even tried to stop” the discrimination of Chinese people of Chinese ethnicity is not sustainable. The Tribunal was clearly focused on the issue of the necessary level of protection that should be afforded by the State such as to satisfy the requirement that there is no well founded fear of persecution where a State offers an adequate level of protection to all its citizens (CB 69 to CB 74). That the Tribunal found that there was an adequate level of State protection available in all the relevant circumstances is a matter for the Tribunal. Mr. Wong submitted, with a reference to NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11], that findings as to country information are a matter for the Tribunal. There is of course no guarantee of absolute protection (Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18). In all therefore this ground of complaint also does not succeed.

    “D.The Tribunal they made an error of Law not to consider that I feared persecution by the reason as a Chinese (race) why they didn't consider to the “well founded fear”. While the authority never even tried to stop Chinese woman being rape or killed. Or by late 1960’s the R.P.K.A.D elite Army commanders they killed and stabbed so many innocent Chinese people in Jakarta Kota (Chinese Business Centre) not even on news. May 1998: A lot of Chinese woman being raped and some people being killed, no one try to help and stop these actions. Who is behind this? Some of strong Government officers. The innocent Chinese people became the victim worse than war.”

    To the extent that the applicants’ complaint now refers to events said to have occurred in May 1998, then this post-dates the Tribunal's decision which was made in January 1998. Clearly this information could not have been before the Tribunal such as it could be said that the Tribunal failed to take into account a relevant consideration as to reveal error on its part. Further, given that the Tribunal made its decision in January 1998, it appears that the independent country information on which it focused (not unreasonably) was information available to it in the 1990s leading up to January 1998. Further, to the extent that the applicants make reference to the 1960s, the Tribunal clearly made some reference to information before it from that period (CB 69.7), where the Tribunal referred to a report of November 1992 which looked at the historical elements of ethnic violence in Indonesia. The information made reference to violence in 1959 and 1960 and that in October 1965, “ethnic Chinese were among the hundreds of thousands of victims of violence”. In all the circumstances the applicants’ complaint now does not rise above the complaint that the Tribunal was not entitled to reach the ultimate finding that adequate State protection was available to the applicants in January 1998 and in the reasonably foreseeable future. Such a complaint, for all the reasons stated above, cannot succeed.

    “E.The tribunal made a jurisdictional error in failing to examine all other sources of available country information and other evidence.”

    Ms. Wong submitted that this appears to be a complaint that the Tribunal failed to fully investigate the applicants’ claims in the context of searching, or examining, other sources of country information which presumably the applicants now say would have assisted their case.
    I agree with Ms. Wong, with reference to Abebe v The Commonwealth (1999) 197 CLR 510 at 187, that it is for the applicants to make out their case. Further, the applicants have not said what other available country information may have assisted in the Tribunal's consideration of their claims. The weight that a Tribunal gives to information available to it is a matter for the Tribunal. It is also significant to note that when the Tribunal invited the applicants to a hearing before it, by letter dated 26 November 1997 (CB 52 to CB 53), the Tribunal specifically drew the applicants’ attention to independent country information in relation to the claims made, which it said may be relevant in arriving at a conclusion on their claims to be a refugee. The Tribunal enclosed copies of this material (CB 54 to CB 59) and specifically invited the applicants’ comments on such material, or “any contrary evidence you provide”. The Tribunal specifically stated at CB 53.6:

    “If you wish to make any comments or provide any contrary evidence, please do so in writing before the hearing, or else orally at the hearing.”

    There is nothing before the Court now to show that the applicants put any such contrary independent country information before the Tribunal. In all the circumstances this complaint is not made out.

    “F. The tribunal made a jurisdictional error in failing to consider whether or not the applicant can have a “well founded fear” Not withstanding the fact that the applicant might have not suffered any actual serious harm.”

    It is clear as Ms. Wong submitted that the Tribunal was focused on the issue of whether the applicants (primarily the applicant) had a well founded fear of persecution for a Convention reason. The Tribunal acknowledge and noted Article 1A(2) of the Refugees Convention (CB 65.7) and provided its understanding of the term persecution (CB 65.9 to CB 67.2). It clearly was seized of the need for such persecution to be well founded in the circumstances and this was with reference to Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1998) 169 CLR 379 (“Chan Yee Kin”). Clearly while acts of previous harm suffered by an applicant are relevant in consideration of any well founded fear of persecution upon return to the home country in the reasonably foreseeable future, these may not be determinative. In any event, the Tribunal understood the applicant’s claims to the actual harm that he says he sustained and set these out at CB 67.1 to CB 68.8. A plain reading of the Tribunal's decision record reveals that it dealt with these claims in context. The claims of discrimination and harassment because of ethnicity, and the examples of harassment, were all dealt with under the heading of “Race and Religion”, and the applicant’s claims as they related to the support and participation in the activities of the PDI was similarly dealt with and subsumed in the Tribunal’s finding that he had had an extremely low profile and minimal involvement. This complaint also does not succeed.

    “G. The tribunal faked [sic: failed] to apply the real change [sic: chance] test instead of opting for believing of probably [sic: probability] test.”

    This appears to be a complaint that the Tribunal failed to properly apply the real chance test to the determination of his claims. In all the circumstances however on any plain reading of the Tribunal's decision record (and note in this regard its reference to Chan Yee Kin) the Tribunal clearly did apply the relevant real chance test as it applied to a well founded fear of persecution for a Convention reason.
    This complaint also does not succeed.

1. Further, given the applicants no longer have legal representation I considered whether any other grounds of review can be discerned from the material before me. In this regard I note that:

   1)There is nothing to show that the claims were not fully considered or that relevant material was not taken into consideration.

   2)The applicants (husband and wife) were invited to, and attended, a hearing before the Tribunal. The applicant husband gave evidence. Opportunities were given to submit information in support of their claims. I accept Ms. Wong’s submission that the applicants, in all the circumstances, were afforded “full” procedural fairness. There is nothing to show that there has been any breach of the principles of procedural fairness or, to the extent that they applied at the time, the relevant statutory requirements.

2. Ultimately, the Tribunal considered the claims based on the applicant’s fear of harm because of his Chinese ethnicity and religion.

   
   

   The Tribunal found that adequate State protection was available to the applicant based on the independent country information available.

   
   

   In relation to the applicant’s political opinion, and involvement with the PDI, the Tribunal found that the applicant had an extremely low profile and minimal involvement. The Tribunal also considered the applicant’s claims on a cumulative basis (CB 80.3). It was open to the Tribunal to make the findings that the applicants did not face a real chance of persecution in Indonesia for the purposes of the Refugees Convention. No error can be discerned, and the application is dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate: 

Date:  06 October 2006