SZFRS v Minister for Immigration

Case •

[2006] FMCA 1306

•

28 June 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFRS v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1306

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of Indonesia – Chinese ethnicity – Christian religion – whether Tribunal failed to put adverse information to applicant for comment – whether Tribunal breached Migration Act 1958 (Cth) s.429 – whether Tribunal hearing was in private – whether Tribunal failed to deal with a material claim – whether Tribunal failed to comply with Migration Act 1958 s.424A – whether information provided to a seminar for the Refugee Review Tribunal but not available to the general public is independent country information.

PRACTICE & PROCEDURE – Delay – where total delay exceeds two years – no explanation except for application to the Minister under Migration Act 1958 s.417 – discretion – where discretion to grant relief refused.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss. 417,422B, 424A, 429, 474, 475A

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Kioa v West (1986) 60 ALJR 113
Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [200] HCA 72
Minister for Immigration & Multicultural & Indigenous Affairs v SZAYW [2005] FCAFC 154
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 219 ALR 27
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
R v Australian Broadcasting Tribunal and Others; Ex parte Fowler and Others (1980) 31 ALR 565
Kioa v West (1985) 159 CLR 550
NARV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 99

Applicant S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289

Applicant: SZFRS
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File No: SYG 344 of 2006
Delivered on: 28 June 2006
Delivered at: Sydney
Hearing date: 24 April 2006
Judgment of: Scarlett FM

REPRESENTATION

Solicitor for the Applicant: Mr Dobbie
Solicitors for the Applicant: Parish Patience Immigration Lawyers
Counsel for the Respondent: Ms Wong
Solicitors for the Respondent: Clayton Utz

ORDERS

  1. The title of the First Respondent is changed to Minister for Immigration and Multicultural Affairs.

  2. The Application is dismissed.

  3. The Applicant is to pay the First Respondent’s costs fixed in the sum of $6,250.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 344 of 2005

SZFRS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on after a hearing that took place on 25th January 2000. The Refugee Review Tribunal made its decision on 2nd March 2000.

  2. The Tribunal affirmed the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs not to grant a protection visa to the Applicant.

  3. The Applicant now seeks writs of certiorari, mandamus and prohibition, and a declaration that the decision of the Refugee Review Tribunal is null and void.

Background

  1. The Applicant is a citizen of Indonesia who arrived in Australia on


    4th February 1998. She applied for a protection visa on 24th July 1998 but it was refused on 6th October 1998.

  2. The Applicant applied to the Refugee Review Tribunal for a review of that decision on 22nd October 1998.

Application for RRT review

  1. The Tribunal wrote to the Applicant on 23rd November 1999 to invite her to attend a hearing at 11:30am on 25th January 2000.


    The Applicant, through her solicitor, replied on 29th December 1999 that she wished to attend the hearing and give evidence with the aid of an interpreter in the Bahasa Indonesia language. She also indicated that she wanted her brother to be a witness at the hearing.

  2. On 15th January 2000 the Applicant’s solicitor wrote to the Tribunal again, asking that the interpreter should be Chinese Indonesian. The solicitor told the Tribunal that the Applicant did not feel that they could openly discuss their case with the Member through a pribumi[1] interpreter. The Applicant’s solicitor also forwarded a written submission to the Tribunal dated 7th January 2000, setting out the Applicant’s claims that she feared persecution as an ethnic Chinese Indonesian of Christian faith.

    [1] Ethnic Indonesian

  3. The Applicant attended the hearing and gave evidence. Her brother also gave evidence, confirming how he had been terrified by the anti-Chinese riots in May 1998 and how he feared for his sister’s safety as well as his own. He believed that she was in added danger from rape.

  4. The Tribunal consulted a considerable amount of independent country information about the situation in Indonesia. The evidence is set out on pages 87 to 98 of the Court Book under the headings “Religion”, “Discrimination towards Chinese in Indonesia”, “Ethnic Violence”, “Post-Soeharto Indonesia”, “Situation of Chinese Indonesian women”, “Chinese Indonesian participation in politics” and “recent regional and sectarian unrest”

Findings and Reasons

  1. The Tribunal’s findings and reasons are set out on pages 98 to 101 of the Court Book. The Tribunal noted that the Applicant claimed that she feared persecution in Indonesia both for reason of religion and for reason of race, and addressed each of those claims.

  2. On the question of persecution for reason of religion, the Tribunal was prepared to accept the Applicant’s evidence that she felt persecuted as a member of Indonesia’s Christian minority. The Tribunal noted, however, that the independent evidence showed that the rights of Christians in Indonesia are constitutionally guaranteed and that there was ample evidence of Christians in Indonesia holding positions of influence and authority.

  3. The Tribunal also relied on the independent information to show that, whilst there had been social unrest in recent times, sometimes directed by Muslims at Christians, the Indonesian government had acted swiftly to put an end to sectarian rights and prosecute the perpetrators.

  4. On the basis of the independent evidence, the Tribunal was not satisfied on the evidence before it that the Applicant had a well-founded fear of persecution for reason of religion.

  5. The Tribunal then turned to the consideration of whether the Applicant had a well-founded fear of persecution for reason of race. The Tribunal accepted that the Applicant had a subjective fear of harm as a Chinese Indonesian.

  6. The Tribunal also accepted that Chinese Indonesians faced discrimination and were the targets of verbal harassment. Whilst the Tribunal did not accept that generalised feelings of ill-will directed towards Chinese Indonesians were not sufficient to constitute persecution for the purposes of the Refugees Convention, the Tribunal accepted that the (then) recent ethnic unrest and riots in Indonesia, particularly the events of 1998, involved the threat of serious harm.

  7. The Tribunal went to consider whether the apprehension felt by Indonesians of Chinese descent, including the Applicant, was well-founded, by asking whether there was a real chance or merely a remote chance of harm occurring. The Tribunal took the view that the riots in Indonesia were “random and sporadic in nature” and, because of the vast size of Indonesia and its population of 200 million, of whom about 5 million were Chinese Indonesians, the relative numbers of Chinese Indonesians actually harmed or whose property was destroyed remained extremely small.

  8. The Tribunal found from the independent evidence that the chance of the Applicant being harmed in a riot in the reasonably foreseeable future was remote. The Tribunal also found that adequate state protection was available to Chinese Indonesians in situations of civil disturbance.

  9. Consequently, the Tribunal was not satisfied that the Applicant had a well-founded fear of persecution within the meaning of the Refugees Convention and affirmed the delegate’s decision.

Application for Judicial Review

  1. The Applicant filed her application for review on 8th February 2005, seeking writs of certiorari, mandamus and prohibition. She filed an affidavit that same day, in which she set out matters relating to her litigation history. She had joined a class action through another solicitor to the one currently on the record, and that application was dismissed by the Federal Court on 20th February 2004.

  2. The Applicant then made a request to the Minister under the provisions of s.417 of the Migration Act. This request was made on 15th March 2004 but, unfortunately for the Applicant, the Minister refused the request on 21st December 2004.

  3. The Applicant filed a Further Amended Application on 11th April 2006, setting out these grounds:

    a)Ground A1. The Refugee Review Tribunal failed to accord the Applicant procedural fairness by failing to put to the Applicant the adverse information that it relied on in affirming the decision under review.

    b)Ground A2(1) The Refugee Review Tribunal failed to accord the Applicant procedural fairness by failing to put to the Applicant for comment that General Benny Moerdani and Kwik Kian Gie are Christians.

    c)Ground A2(2) The Tribunal failed to inform the Applicant that it was going to rely, in part, on a paper which the Presiding Member had co-authored, and was adverse to the Applicant. That paper was: Gerry Van Klinken, “Recent anti-Chinese violence in Indonesia”, Paper for the Refugee Review Tribunal, 20 February 1998.

    d)Ground C(i) The Tribunal failed to deal with a material claim that she feared persecution because she is a Christian of Chinese ethnicity.

    e)Ground C(ii) The Refugee Review Tribunal failed to deal with a material claim, being that she feared persecution because of her ethnicity.

    f)Ground C(iii) The Refugee Review Tribunal failed to deal with a material claim, being that she feared persecution for reason of her religion.

    g)Ground C(iv) The Refugee Review Tribunal failed to deal with a material claim, being that the Applicant feared returning to Indonesia as she had read that Lt General Prabowo would be returning to Indonesia and that President Wahid would appoint him as an army advisor, TNI.

    h)Ground D (i-ix) The Refugee Review Tribunal breached s.424A of the Act by failing to give the requisite written notice in relation to a number of pieces of documentary information, including the Gerry Van Klinken paper.

  4. The Applicant submits that the Tribunal did not send any correspondence to the Applicant about the country information or explaining the substance of that information. The Applicant submits that she was denied procedural fairness because the Tribunal did not give her the essence of the country information at the hearing. It was submitted that the Tribunal should have disclosed to the applicant that the Tribunal Member’s comments made at the seminar where Dr Van Klinken gave his paper.

  5. The Applicant submits that the Tribunal should have put to her for comment the information that General Moerdani and Kwik Kian Gie were questions, as the Tribunal relied on this information at least in part to find that the Applicant did not have a well founded fear of persecution.

  6. The Tribunal, it is submitted, had an obligation to put to the Applicant the fact that the Tribunal Member had co-authored Dr Van Klinken’s paper. The applicant referred the court to Kioa v West (1986) 60 ALJR 113 at [140]-[144] and Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72.

  7. The Applicant also submitted that the Tribunal failed to give the Applicant a private hearing, in breach of s.429 of the Act, by having her brother remain throughout the hearing. The Applicant did concede, however, that the Court is bound to follow the decision of the Full Court of the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v SZAYW [2005] FCAFC 154. That decision is binding on the Court.

  8. The Applicant submitted that the Tribunal failed to deal with a material claim that the Applicant feared persecution because she is a Chinese of Christian ethnicity. The submission is that it is a claim distinct from that of fearing persecution because of race or religion, as it is a merger of both, and that therefore the Applicant had an increased risk of persecution.

  9. The Applicant further claims that the Tribunal failed to deal with a material claim, that she feared persecution for reason of her ethnicity. The Applicant claims that the Tribunal only made findings in relation to whether or not she had a well-founded fear for reason of her ethnicity in the context riots or civil disturbance.

  10. Similarly, the Applicant claims that the Tribunal failed to deal with her claim that she feared persecution for reason of her religion, because the Tribunal only considered her claim in the context of riots or situations of civil disturbance.

  11. The Applicant further claimed that the Tribunal failed to deal with a material claim, being her fear of returning to Indonesia because Lt General Prabowo would be appointed an Army advisor. This claim was relevant to her fear of raped or persecuted for reason of religion, race or a combination of the two. The failure to consider a material claim constitutes a jurisdictional error (see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 219 ALR 27).

  12. Again, the Applicant claims that the Tribunal breached s.424A of the Migration Act by failing to give the requisite written notice of nine different articles about Indonesia. Again, there is the claim that the Tribunal did not give the applicant written notice of the paper which the Tribunal member co-authored with Dr Van Klinken.

  13. Counsel for the First Respondent submitted that the substance of the information referred to was either put to the Applicant at the hearing or was not relied upon by the Tribunal in making its decision. She also submitted that the Applicant’s brother was present at the hearing at the request of the Applicant. Further, it was submitted that the Tribunal did not fail to deal with a material claim, nor did it breach the provisions of s.424A of the Migration Act.

  14. Counsel for the First Respondent raised the question of delay by the Applicant in bringing her application. She submitted that the Applicant has delayed her application to the court for over two years and that the Court should therefore decline to exercise its discretion to grant relief (see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [56], [149] and [172]; R v Australian Broadcasting Tribunal and Others; Ex parte Fowler and Others (1980) 31 ALR 565).

Conclusions

  1. This is a case where the Tribunal decision was made on 2nd March 2000. Section 422B had not come into force but s.424A had. Section 422B commenced operation on 4th July 2002.

  2. Dealing first of all with Ground 1, I accept that the principle for determining where there has been a breach of procedural fairness is that:

    An opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made (see Kioa v West (1985) 159 CLR 550 at [629] per Brennan J). 

  3. Where the Tribunal relies upon independent country information in arriving at an adverse decision, it is sufficient if the substance of the information is conveyed, so that the Applicant may put arguments about its relevance or adduce whatever competing material is available (see NARV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 99 at [33]).

  4. In my view, the information referred to was either put to the Applicant during the hearing for her comment, or was not relied upon by the Tribunal in its findings and reasons. There are two papers which call for comment. They are:

    a)The paper for the Refugee Review Tribunal by Gerry Van Klinken, Recent Anti-Chinese violence in Indonesia, (20 February 1998); and

    b)A paper for a seminar of the Refugee Review Tribunal by Prof. Arief Budiman, The May Riots in Indonesia (29th May 1998).

  5. I have some misgivings as to whether papers prepared for a seminar for the Refugee Review Tribunal can be described as “independent country information”. In my view, they are not available to the general public because they have been prepared for an “in-house” seminar. Without evidence of their wider publication, it appears that papers prepared for this purpose are not readily accessible by the general public, if they are in fact accessible at all. They are not in the public domain like newspaper articles or material available on the Internet.

  6. In this case, it does not appear that the Tribunal relied on the Van Klinken article. The Tribunal put to the applicant during the hearing the substance of the article by Prof. Budiman.

  7. I am not satisfied that the Applicant has made out any jurisdictional error in respect of Ground 2, an alleged failure to give a private hearing. The Applicant had asked the Tribunal if she and her brother could have separate hearings, to which the Tribunal agreed. The Applicant asked the Tribunal to hear evidence from her brother, to which the Tribunal also agreed. The Applicant did not complain that her brother stayed in the hearing after he gave evidence.

  8. In Ground 3, the Applicant claims that the Tribunal failed to deal with four material claims. The first claim is that the Tribunal did not deal with the Applicant’s claim of fear of persecution because she is both Christian and of Chinese ethnicity. The Tribunal quite clearly dealt with each part of the claim and there is nothing to show that Chinese Christians were exposed to a different form of persecution, as counsel for the Minister has suggested, or a greater degree of persecution, than Chinese or Christians separately. There is no jurisdictional error.

  9. The second claim was that the Tribunal failed to deal with the Applicant’s claims that she had a fear of persecution because of her religion or her Chinese ethnicity, because it only considered those matters in the context of riots or civil disturbance. I agree with the submission that the Tribunal did consider other types of persecution that may be suffered (see page 99 of the Court Book).

  10. It is also the case that the Tribunal noted that the rights of Christians were constitutionally guaranteed and that some Christians, like Gen Moerdani, held positions of power and authority.

  11. The Tribunal took the view that verbal harassment and discrimination directed towards Chinese Indonesians was not sufficient to constitute persecution for the purposes of the Refugees Convention. No jurisdictional error is shown.

  12. The Applicant claims that the Tribunal did not deal with her claim that she feared returning to Indonesia because she had read that Gen Prabowo would return. The Tribunal did consider this evidence (see page 87 of the Court Book). If the Applicant’s claim about Prabowo is to be taken as illustrating her fear of lack of state protection, the Tribunal did make findings about that issue. No jurisdictional error is shown.

  13. The Applicant’s fourth ground alleges a failure by the Tribunal to comply with s.424A of the Act by failing to give written notice of independent country information relied on by the Tribunal in reaching its decision. As counsel for the Minister submitted, independent country information falls within the exception in s.424A(3)(a). Information which is not specifically about the Applicant or another person and is just about a class of persons of which the Applicant or other person is a member (see Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572; [2004] FCAFC 264).

  14. Insofar as the information referred to a class of persons, it fell within the s.424A(3)(a) exemption. As for the two articles referred to in [36] above, the Van Klinken article was not relied upon by the Tribunal in affirming the delegate’s decision. The Budiman article, was referred to in the Tribunal’s findings and reasons (see page 100 of the Court Book), and I have already expressed some misgivings about whether a paper prepared for a (presumably) private seminar for the Refugee Review Tribunal can be regarded as being in the public domain. I find that the Tribunal did not comply with s.424A in regard to that piece of information, and that this is a jurisdictional error.

Delay

  1. The Applicant has not explained the delay in bringing her action so long after the decision was handed down. The Tribunal handed down its decision on 2nd March 2000. The applicant did not join the Muin and Lie class action until 24th April 2001. There is no explanation for this delay.

  2. The Federal Court dismissed the Applicant’s action for interlocutory relief on 20th February 2004 (Applicant S1174 of 2002 v Refugee Review Tribunal [2004] FCA 389). The Applicant did not commence these proceedings until 8th February 2005. The only explanation given by the Applicant, through her solicitor, is that the Applicant made a request to the Minister under s.417 of the Act to substitute for the Tribunal’s decision another more favourable decision. The application was made on 15th March 2004, and the Minister made a decision not to exercise that discretion in favour of the Applicant on 21st December 2004.

  3. It is well established that an applicant who seeks the exercise of Ministerial discretion under s.417 cannot use this fact as an explanation for the delay in bringing Court proceedings. Notwithstanding the fact that a jurisdictional error has been shown, the unexplained delay is to lengthy to warrant exercising the Court’s discretion to grant relief.

  4. The application will be dismissed.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  5 September 2006


Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0