SZGAX v Minister for Immigration
[2006] FMCA 1438
•13 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGAX v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1438 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 413, 422B, 424A, 483A |
| Applicant VEAL of 2002 v Minister for Immigration (2005) 222 ALR 411 Yo Han Chung v University of Sydney & Ors [2002] FCA 186 Minister for Immigration v Savvin (2000) 98 FCR 168 Refugee Review Tribunal v Muin; Refugee Review Tribunal v Lie [2002] HCA 30 SAAP v Minister for Immigration [2005] HCA 24 |
| Applicant: | SZGAX |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG858 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 13 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 13 October 2006 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of an Indonesian interpreter |
| Counsel for the Respondents: | Mr M Izzo |
| Solicitors for the Respondents: | Sparke Helmore Solicitors |
ORDERS
The Refugee Review Tribunal is joined as the second respondent.
The name of the first respondent be amended to read ‘Minister for Immigration and Multicultural Affairs’.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG858 of 2005
| SZGAX |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 7 April 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 18 July 1995 affirming a decision of the delegate of the first respondent made on 1 February 1993, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZGAX”.
The applicant has not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].
Background
The Tribunal decision of Ms R Layton, reference BN94/06402, provides the following background information. The applicant arrived in Australia from Indonesia on 13 January 1981. He sought protection as a refugee on 28 August 1990. On 1 February 1993, a delegate of the Minister refused the application and a deemed application for a Domestic Protection (Temporary) Entry Permit (DPTEP).
The applicant applied for review of the decision to the Refugee Status Review Committee. That body ceased to exist from 1 July 1993 and under s.413 of the Act the application for review came to be determined by the Refugee Review Tribunal.(CB 105)
Subsequent to the Tribunal decision the applicant joined the Herijanto class action on 31 July 1998. On 25 September 2001, that class action was consolidated with the Muin and Lie class action: Refugee Review Tribunal v Muin; Refugee Review Tribunal v Lie [2002] HCA 30.
On 20 June 2003, pursuant to orders made by Gaudron J on
25 November 2002, the applicant filed an application in the High Court of Australia. The application was remitted to the Federal Court of Australia and dismissed on 20 February 2004.
Applicant’s claims before the Tribunal
A convenient summary of the applicant’s claims is contained in the written submissions prepared by Mr Izzo and I adopt paragraphs 4 to 12 of those submissions for the purposes of this judgment:
4.The applicant was a 41 year old single man from Kupang, Timor, in Indonesia. He claimed he would suffer persecution in Indonesia by reason of the fact that he was of Chinese descent and because he was a Christian. He claimed he would suffer from lack of availability of adequate employment, lack of assistance from government bodies and the government in general, and general persecution and discrimination in virtually every area and strata of society. [CB 106.4-106.6].
5.The applicant claimed that his father had started a milk-bar business in the 1970’s. He claimed that in 1984, after he came to Australia, the building in which his family ran their milk-bar business and in which they lived was burnt in anti-Chinese riots in Kupang. He said the family did not complain to the police about the burning because the police already knew of it. [CB107.9-108.1] The applicant said that the family subsequently established a new milk-bar business. [CB 108.3] He claimed that after the burning of the family building the family were poorer and feared something might happen because they heard news of anti-Chinese riots in the media. [CB109.3]
6.The applicant claimed to have completed twelve years of school and then trained as a tailor and a chef. In Australia, in worked in restaurants and was an assistant chef. [CB 108.4]
7.The Applicant said he was a Catholic who went to mass weekly. He said that he and his family had not faced problems in practising the Catholic religion in Indonesia, but generally, he had seen reports of problems, for instance, Muslims burning down churches or paying Protestants to go into Catholic churches and provoke the congregation. [CB108.5-108.6]
8.The applicant also claimed that, when he was at school, he and other Chinese students were punched once or twice by Muslim students on the way to a rally. [CB 108.7]
9.The applicant claimed it was hard for Chinese people to get permits to run a business and get business finance. He said that his family had got the business permits they needed and his father got the loan he needed, though he had to pay a higher rate of interest. [CB 108.8] The applicant also said it was harder for Chinese people to go to university. When the Tribunal pointed out that his uncle and sibling had attended university and that the country information indicated that Chinese were not prohibited from attending university, the applicant responded that his sister attended a Catholic university, and that the number of Chinese people at university was decreasing. [CB 108.9-109.1]
10.The Tribunal discussed with the applicant country information indicating that the government takes steps to quell anti-Chinese riots which occur from time to time and to punish perpetrators of violence in the riots. The applicant responded that the police and army wait until the riots are over then pretend to take action. [CB 109.5]
11.The applicant also stated that he had lost his Indonesian nationality and that he was stateless. [CB 107.7, CB 121.3] The Tribunal discussed with the applicant country information indicating that he could regain his nationality by compliance with a formality. [CB 109.6]
12.The applicant also claimed that the Tribunal should consider his application on humanitarian grounds. [CB 107.6]
Tribunal’s findings and reasons
The Tribunal’s reasons are contained in the respondents’ written submissions and I adopt paragraphs 13 to 20 of those submissions:
13.The Tribunal dealt first with the applicant’s claim to have suffered persecution on the ground of his race. It referred to country information, and noted that although the information indicated that there was a government policy of assimilation which discouraged the exercise of many Chinese rights, there was no evidence before the Tribunal that in the case of the applicant or generally, this disadvantage amounted to persecution in a Convention sense. Nor was there evidence before it that the applicant, or the Chinese population as a whole in Indonesia, suffered discrimination amounting to persecution in a Convention sense. [CB 115.6-115.8]
14.The Tribunal also found that the applicant had not been denied the basic right to education and/or work in Indonesia, nor had members of his immediate family in Indonesia. It found that the country information indicated there are restrictions, though not prohibitions, on Chinese students studying at university in Indonesia. [CB 116.3-116.4] It referred to the applicant’s evidence in relation to his education and employment, and the employment and university degrees obtained by members of his family. It also referred to the applicant’s evidence in relation to his family’s ability to obtain business permits and loans. [CB116.5]
15.The Tribunal accepted that there was anti-Chinese sentiment in Indonesia and that at times this erupted into violence against ethnic Chinese, but found that the damage to the applicant’s family’s property in 1984 did not amount to persecution within the Convention because the harm did not emanate from the state, and there was no evidence that it was condoned or tolerated by the state or that the state refused or was unable to offer protection. Despite the applicant’s claims that the police and army refused to take action after the riots, the Tribunal found on the basis of the material available that the government did not condone violence against Chinese ethnic origin Indonesians and is prepared to take action against racial violence when it occurs. [CB 116.6-116.9] It found that although Chinese in Indonesia are subject to discrimination, in general this does not amount to persecution. [CB 116.9-117.1]
16.The Tribunal dealt next with the claim to persecution on religious grounds. It referred to country information and found that religious tension did exist in Indonesia between Muslims and Christians and that this sometimes involved attacks on churches. However, it found that this did not amount to persecution since the attacks did not emanate from the government, the government did not condone the attacks, and the Indonesian government had been vigilant in prosecuting those responsible for religious extremism and religiously motivated violence. [CB 120.6-120.7]
17.The Tribunal also considered the cumulative effect of the applicant’s evidence, and found that, if he returned to Indonesia, he would not face a real chance of persecution on Convention related grounds. [CB 121.1]
18.The Tribunal addressed the applicant’s claim that humanitarian grounds should be considered, and noted that humanitarian considerations that do not relate to the Convention are outside the jurisdiction of the Tribunal. [CB 121.2]
19.The Tribunal considered the applicant’s claim to be stateless. It noted, on the basis of country information, that if the applicant had lost his Indonesian nationality, he could regain it by a mere formality. [CB 123.6-123.7] On this basis, it concluded that applicant was not stateless. In any event, it said that statelessness does not give rise on its own to a claim to refugee status. It said that the country against which a person who is stateless is to be assessed for refugee status is the person’s country of former habitual residence, and here that was Indonesia. [CB 124.1-124.4]
20.The Tribunal concluded that the applicant did not face a real chance of persecution on a Convention ground if he returned to Indonesia [CB 124.5]
Application for review of the Tribunal’s decision
On 7 April 2005, the applicant filed an application for review in this Court under s.39B of the Judiciary Act. On 7 September 2006, the applicant filed an amended application which contains the following grounds:
1.The Tribunal erred in its consideration of whether the applicant had a well founded fear of persecution for reason of his religion.
Particulars
(a) The Tribunal erroneously considered that attacks on Christians and Christian churches in Indonesia do not amount to persecution because attacks do not emanate from the government, and that the government is “vigilant” in prosecuting offenders.
(b) The Tribunal failed to consider that persecution can emanate from non state agents, in this case from Muslim Indonesians.
(c) The Tribunal failed to consider the adequacy and effectiveness of any protection that the state could offer, and specifically whether prosecution of offenders after religious violence has occurred is adequate.
2.The Tribunal erred in its consideration of whether the applicant had a well founded fear of persecution for reason of his race.
Particulars
(a) The Tribunal erroneously considered that attacks on Chinese Indonesians do not amount to persecution because attacks do not emanate from the government, and that the government is prepared to take action when violence occurs.
(b) The Tribunal failed to consider that persecution can emanate from non state agents, in this case from non Chinese Indonesians.
(c) The Tribunal failed to consider the adequacy and effectiveness of any protection that the state could offer, and specifically whether prosecution of offenders after religious violence has occurred is adequate.
Reasons
The applicant is a self-represented litigant and appears with the assistance of an Indonesian interpreter. When the applicant was invited to address the Court in support of his application, he indicated that he had filed an affidavit dated 12 September 2006 and that he relied on the contents of that affidavit. The affidavit gives a brief history of his previous application seeking a protection visa and the subsequent outcomes, his participation in the Herijanto and Muin and Lie class actions and the subsequent dismissals, his detention for breaching his bridging visa provisions, an application for ministerial intervention and, finally, his application to this Court. When I enquired whether the applicant wished to make any oral submissions in support of his application, he provided a brief summary of his 26 years in Australia and indicated that he had not been guilty of any criminal offences.
He said that he had no debts but if he was returned to Indonesia it would affect him psychologically. I briefly explained to the applicant the nature of the hearing before this Court and the matters that it could take into consideration. In response to a question by the applicant as to whether he would be arrested, I indicated that that was not the function of this Court. The applicant was being given the opportunity to raise claims in respect of any error in the Tribunal’s decision-making process and he was free to make submissions to the Court in that respect. After further clarification that it was the Tribunal decision that was being reviewed, the applicant did say the Tribunal had not been fair, but declined to make any further submissions.
Mr Izzo, in his written submissions, submits that since the Tribunal decision was made before the enactment of ss.422B and 424A of the Act, those provisions do not apply to the conduct of the review.
Any question of compliance with the rules of procedural fairness is to be determined in accordance with the common law: Applicant VEAL of 2002 v Minister for Immigration (2005) 222 ALR 411 at [10] – [11].
Mr Izzo submits that the applicant’s original application for review repeats his claim of a well-founded fear of persecution in Indonesia on account of his race and religion, but does not give particulars of any legal error said to have been committed by the Tribunal. Mr Izzo submits that the Tribunal addressed each of the applicant’s claims.
In respect of the claim of persecution on the grounds of race, the Tribunal accepted the applicant’s evidence in relation to his and his family’s education and employment but found that this provided no basis for a claim of persecution.(CB 116) It also considered the occurrence of anti-Chinese riots in Indonesia and discussed with the applicant country information relating to the Indonesian government’s response to these.(CB 116) The Tribunal found, on the strength of that country information, that the government was prepared to take action when riots occurred.(CB 112-117) Mr Izzo submits that the Tribunal was clearly entitled to find that the applicant faced no real chance of persecution on the grounds of his race.
In respect of the claim of persecution on the grounds of religion, the Tribunal accepted that the applicant’s evidence of religious tension in Indonesia which occasionally leads to attacks on churches.(CB 120)
It disposed of this claim on the basis that the government was able to respond where necessary to religious attacks. Therefore the applicant faced no real chance of persecution on this ground.(CB 120) Mr Izzo submits that this finding was clearly open to the Tribunal on the material before it. The applicant had filed no evidence to support a claim that the country material relied on by the Tribunal in this regard was not disclosed to him. In support of this, Mr Izzo referred the Court to the Tribunal decision under the heading ‘The Evidence at the Hearing’ and the following comment:
The Tribunal discussed with the Applicant the information set out below that indicates that there are anti-Chinese riots in Indonesia from time to time in Indonesia but that the government takes steps to quell the riots and punish perpetrators of violence in the riots. The Applicant responded that the police and army wait until the riots are over, and then ‘pretend to take steps after it is finished’; they are reluctant to take action because ‘those organising the demonstrations might be the children of the police and army’.(CB 109.5)
Mr Izzo submits that the Tribunal committed no error in dealing with the applicant’s claim to be stateless. It proceeded correctly on the basis that statelessness is not itself a basis for the grant of refugee status; rather a stateless person must demonstrate a well-founded fear of persecution for a Convention reason in their country of former habitual residence: Minister for Immigration v Savvin (2000) 98 FCR 168.
Mr Izzo then indicated that he would address the contents of the amended application filed on 7 September 2006 and that he had further submissions addressing the grounds raised in that document.
The decision is broken down into two sections. The first deals with persecution on the grounds of race, the second with persecution on the grounds of religion. Dealing first with persecution on the ground of race, the Tribunal found:
However, the Tribunal finds that the damage to the Applicant’s family’s property in 1984 does not amount to persecution within the Convention, because the harm did not emanate from the state, nor is there any evidence before the Tribunal that the damage was condoned or tolerated by the state, or that the state refused or was unable to offer adequate protection. (CB 116.6)
The Tribunal then went on to reject the claim made by the applicant that the police were notified but failed to do anything. The Tribunal made a more general finding about the preparedness of the Indonesian state to take action against racial violence, when it occurs.(CB 116)
Mr Izzo submits that the first specific finding must be understood in light of it being the only claim that was made by the applicant that Indonesia was unable or unwilling to take action. In a statement attached to the application for refugee status form lodged on 28 August 1990, the applicant stated:
…although the police were notified they simply refused to take any details or actions with regard to this incident.(CB 107.2)
At Court Book 109.4 the Tribunal discussed with the applicant information which indicates that there are anti-Chinese riots from time to time in Indonesia, but that the government takes steps to quell the riots and punish perpetrators of violence: “Four go on trial in connection with Medan riots”, Times Business Publications, 7 June 1994.(CB 114-115) Mr Izzo submits that having regard to all of that material, it is clear that the existence or inadequacy of state protection was addressed by the Tribunal in this context.
In respect of persecution on the grounds of religion, Mr Izzo submits that the Tribunal made the following finding:
However, the Tribunal finds that this does not amount to persecution since the attacks do not emanate from the government, the government does not condone the attacks, and the Indonesian government has been vigilant in prosecuting those responsible for religious extremism and religiously motivated violence.(CB 120.7)
It is submitted that the factual basis for that finding can be found in the paragraph immediately above:
Church Scene, op cit, noted that the Indonesian government had insisted that it would act against the perpetrators of the attacks. It quotes a statement by Southern Baptist Missionary, Edward Sanders:
‘The government has reacted strongly. They have promised to make arrests and have published statements condemning the attacks, saying this is contrary to the state philosophy of freedom of religion. They have worked hard to get on top of this.’(CB 120.5)
Mr Izzo submits that the only claim made by the applicant on this matter was specifically addressed by the Tribunal. Notwithstanding that, the Tribunal proceeded to consider more generally the ability and willingness of the Indonesian state to offer adequate protection and make findings on that matter. He submits that there is no error in the Tribunal decision as raised in the amended application.
Conclusion
The applicant appeared at the hearing as a self-represented litigant appearing with the assistance of an Indonesian interpreter.
I acknowledge that the applicant is faced with great difficulty as he does not fully understand the language or the legal system in which he has brought these proceedings. Although I briefly explained to the applicant the nature and the operation of proceedings of this Court, he clearly did not understand and in fact harboured deep concern as to his possible arrest and detention. I have attempted to dispel these concerns.
Mr Izzo, appearing for the respondents, assisted the Court with written submissions which were supplemented by oral submissions in respect of both the original and amended applications filed in these proceedings. It was apparent that the applicant had no comprehension of the purpose or conduct of these proceedings and therefore of how he was to succeed in his case. This places an obligation on the Court to independently consider whether any argument based on the material could have been made out: Yo Han Chung v University of Sydney & Ors [2002] FCA 186. I am satisfied that the applicant has been given the opportunity to receive independent legal advice through the Court’s sponsored scheme and has filed an amended application. I am satisfied that none of the grounds raised in either of these documents can be sustained. Neither is it apparent that any other ground of review exists which suggests the Tribunal made a jurisdictional error in its decision-making process. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 12 October 2006
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