SZGIQ v Minister for Immigration
[2007] FMCA 1430
•3 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGIQ & ORS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1430 |
| MIGRATION – Visa protection visa Refugee Review Tribunal application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa – applicants are citizens of Indonesia claiming fear of persecution on account of her religion – no reviewable error. PRACTICE & PROCEDURE – Litigation guardian – second and third applicants are minors – no separate claims – first applicant appointed litigation guardian. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 425, 474 |
| SZEPZ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 107 Minister for Immigration & Multicultural & Indigenous Affairs v S152/2003 (2004) 221 CLR 1 |
| First Applicant: | SZGIQ |
| Second Applicant: | SZGIR |
| Third Applicant: | SZGIS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 274 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 26 June 2007 |
| Date of last submission: | 26 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 3 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gibian |
| Solicitors for the Applicant: | Michaela Byers Solicitor |
| Counsel for the Respondent: | Mr Smith |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The Application is dismissed.
The Firs Applicant is to pay the First Respondent’s costs fixed in the sum of $5,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 274 OF 2007
| SZGIQ |
First Applicant
| SZGIR |
Second Applicant
| SZGIS |
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal. The Tribunal signed its decision on 4th December 2006 and handed the decision on 4th January 2007, affirming the decision of a delegate of the Minister not to grant protection visas to the three Applicants. The Applicants, by means of an application and an affidavit in support filed on 30th January 2007, seek judicial review of the Tribunal’s decision.
I note that the Second and Third Applicants are both children.
I dispense with the requirement to appoint a litigation guardian as the Second and Third Applicants have no separate claim but rely on the claim of the First Applicant, their mother. The First Applicant will be referred to as “the Applicant”.
Background
The background to this matter is that the Applicants, the mother and two sons, are citizens of the Republic of Indonesia and they arrived in Australia on 23rd July 2001 and applied to the Department of Immigration & Multicultural Affairs, as it then was, for a Protection (Class XA) Visas on 13th August 2001.
A delegate of the Minister refused to grant visas on 12th September in that year and the Applicant sought a review of that decision from the Refugee Review Tribunal. The Tribunal, differently constituted, affirmed the delegate’s decision on 31st October 2002 and the Applicant sought review of that decision from the Federal Magistrates Court. On 3rd August 2006, the Court made orders by consent setting the decision aside and remitting the matter to the Tribunal for determination according to law.
The Tribunal invited the Applicant to attend a hearing and the Applicant attended on 26th October 2006. The Applicants produced their Indonesian passports to the Tribunal. The Applicant also asked the Tribunal to take evidence from a witness.
The relevant claim is that the Applicant is a Muslim by faith and ran her own business in a town in Indonesia called Lamongan. She claimed to be a devotee and follower of Islam Jamaah since she was at high school. She married another follower of that particular sect in 1990 and they started a small business selling groceries. However, in 1998, because of pressure imposed on the Applicant and her husband because of their adherence to Islam Jamaah, the business was forced to close.
The Applicant claimed that she was targeted specifically because of her religious beliefs. She claimed that she was harassed by other Indonesians and rubbish was placed in front of her business and obnoxious acts were directed at her shop. She reported the behaviour to local police but they either did nothing or their attempts were useless. Eventually, she was forced to close the business in 1998. She claimed that she could not relocate because she would be exposed to the same type of harassment, intimidation and violence. She claimed to the Department that she did not know where her husband was. She had come to Australia in 2001.
The Applicant gave evidence at the first Tribunal hearing on 18th June 2002 and the Tribunal decision set out a detailed summary of that evidence which appears at pages 244 through to 246 of the Court Book. The Applicant’s evidence to the Tribunal in respect to the decision under review can be found at pages 246 through to 250.
The Tribunal asked the Applicant a number of questions about her case and the Applicant told the Tribunal that because she had been threatened, whilst she did not stop her own personal practice, she had stopped teaching and proselytising because she had two children and a business to run and she decided to put the children first.
The Applicant asked the Tribunal to hear evidence from another lady of Indonesian background who gave evidence that in 2001 she had met the Applicant when they were both studying the Qu’ran. She had known the Applicant because the Applicant was a good teacher and the witness’s children were very fond of the Applicant. However, when the Applicant was not teaching her religion, she was a very weak person, as if she was traumatised. The witness said that the Applicant had said that she had had a very gloomy past in Indonesia because of spreading her religion there. The witness had left Indonesia in 1998 and was now a permanent resident.
The Tribunal considered Independent country information relating to the Islam Jamaah movement in Indonesia, and that is set out on pages 250 through to 253 of the Court Book.
The Tribunal’s Findings and Reasons
The Tribunal’s findings and reasons are set out on pages 253 through to 258 of the Court Book. The Tribunal is satisfied that the Applicants were nationals of Indonesia and I note that the Applicants produced their Indonesian passports. The Tribunal noted the Applicant’s claim of a fear of persecution for a Convention reason because the Applicant claims that if she returns to Indonesia, she is at risk of verbal abuse or harm because of her association with the religion, Islam Jamaah.
The Tribunal Member was not satisfied that the Tribunal could establish with any degree of certainty what the events were that led the Applicant to leave Indonesia in 2001, although the Tribunal was satisfied that, as the Applicant claimed that her husband was in Australia, that the Applicant wished to be reunited with him.
The Applicant claimed that her oldest son was assaulted in 1996 when he was five, but she did not claim that her sons were harmed in any way because of the family’s religious profile. The Tribunal noted that the Applicant had resiled from a number of claims made in written submissions to the first Tribunal.
The Tribunal accepted that, at times, up to her departure from Lamongan in 2001, the Applicant was intimidated and subjected to some harassment directed at her market stall and incidents of ill-will directed towards adherence of her religious sect. The Tribunal was satisfied that, although she complained to the police, the culprits were not arrested. The Tribunal felt that it was apparent from the Applicant’s evidence that the Applicant did not know and the police did not know the identities of those people responsible and it was apparent that the Applicant did not know why the police may have been reluctant to assist her or if, indeed, they were reluctant to assist her at all.
The Tribunal considers that, whilst the Applicant may have faced some harassment directed at her market stall in the 1990’s, the Applicant had exaggerated the extent of the difficulties that she was facing at the time and was not satisfied that the Applicant was subjected to treatment amounting to persecution in 2001.
The Tribunal accepted that Islam Jamaah was banned in 1971, but Independent evidence set out in the decision indicates that one manifestation of that sect, or the LDII, is a legal organisation and that ordinary members of LDII can practise their faith in safety. The Tribunal considered it significant that reports of problems of people associated with LDII or Islam Jamaah were very rare indeed.
The Tribunal was also satisfied that, in the light of the absence of recent reports of incidents of harassment or threats by local Muslims, basing that on Independent country information, that there have been no serious incidents of harm directed at adherence of Islam Jamaah or LDII because of their religion during 2005 and 2006. The Tribunal found:
For these reasons, in my view, the chance that the applicant or the applicant children might face serious harm at the hands of local people because of their religious beliefs is, in my view, remote and unsubstantial. I am satisfied that she would be able to return to Lamongan, the area in which she lived and worked for many years before coming to Australia, and would be able to continue to be involved in LDII activities as she was in the past, without incurring harm amounting to persecution.[1]
[1] See Court Book at page 255
The Tribunal was satisfied that the Applicant had been involved in teaching about her religious beliefs since arriving in Australia but found:
Given that the authorities had no interest in her because of religious activities before her departure from Indonesia, I am not satisfied that they would have any interest in her if she returned there merely because she was involved in religious activities in Australia.[2]
[2] See Court Book at page 256
The Tribunal found that the Applicants did not have a well-founded fear of persecution in Indonesia and affirmed the decision not to grant the Applicants protection visas.
Application for Judicial Review
An amended application was filed on 25th May 2007, the Applicants seek:
i)A declaration that the Tribunal decision be declared void.
ii)That the Court order that the application for review be remitted to the Refugee Review Tribunal differently constituted for further consideration according to law.
iii)An order for costs.
I have previously indicated a reliance on the decision of the Full Court of the Federal Court in SZEPZ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 107 at [30] that I have serious doubts that the Court has the power, even if it made an order remitting the matter to the Tribunal, to make any orders as to the constitution of the Refugee Review Tribunal. In any event, that is putting the cart before the horse, as, unless the Court is satisfied that the decision is affected by jurisdictional error, no order will be made quashing the decision.
The amended application contained four grounds. The grounds upon which the Applicant relies are:
i)The Tribunal acted without and in excess of jurisdiction in failing to accord procedural fairness to the Applicant and/or failing to comply with s.425(1) of the Migration Act 1958 by failing to give the Applicant the opportunity to attend a hearing and given evidence and present arguments relating to the issues arising in relation to the decision under review.
ii)The Tribunal acted without and in excess of jurisdiction in making findings that were supported by no evidence and in failing to consider the Applicant’s claims to have suffered persecution.
iii)The Tribunal acted without and in excess of jurisdiction by asking itself the wrong question in determining whether the Applicant had a well-founded fear of persecution and in failing to consider the Applicant’s claims to have suffered persecution.
iv)The Tribunal acted without and in excess of jurisdiction in failing to comply with section 424A of the Migration Act 1958 in that it did not provide give to the Applicant particulars of any information that the Tribunal considered would be the reasons, or part of the reason, for affirming the decision that is under review and it failed to ensure, as far as is reasonably practicable that the Applicant understands why it is relevant to the review.
At the hearing, counsel for the Applicants, Mr Gibian, told the Court that the first ground was not pressed and that only grounds 2, 3 and 4 would be pressed.
Ground 2
The first Tribunal failed to consider the claims made by the Applicant or misconstrued those claims. It is submitted the First Applicant’s claim was plainly that she was subject to persecution and threats of persecution by members of the community in which she was living on the grounds of religion and that the authorities refused to investigate or act upon complaints made by her also because of her religion.
The Applicant, in her written submissions, said that she went to the police station but the police would not act on her complaint and the Applicant “believed that the police did nothing because they knew that she was involved in teaching and spreading of the Islam Jamaah”. It is submitted the Tribunal ignored the Applicant’s claims. Police had exhibit indifference to her claims because of her religion and erroneously stated that “it was apparent that she did not know why the police may have been reluctant to assist her or, indeed, if they were reluctant to assist her”.
It is submitted that failure of a state to protect a person for a Convention-related reason may constitute a sufficient reason for a person to be unwilling to avail himself or herself of the protection of his or her country of nationality. By not considering this aspect of the First Applicant’s claims, it is submitted the Tribunal failed to consider whether the First Applicant had demonstrated a well-founded fear of persecution for a Convention reason. In the alternative, it is submitted that the Tribunal made a finding in the absence of any probative evidence or failed to consider relevant consideration that the First Applicant’s claims of being denied assistance and protection by the police on the ground of her religion.
In reply to this, it is submitted by counsel for the First Respondent, Minister, Mr Smith that the Tribunal did consider the First Applicant’s claims but rejected them. She feared harm at the hands of local people and it was the local people who had abused her, left rubbish outside her shop and attacked and robbed her shop during the riots in 1998. The Tribunal found that the chance of the First Applicant and her children might face serious harm from local people was “remote and insubstantial” and one of the bases for this was the protection that would be afforded by the state. The Tribunal considered and rejected the proposition that there was a general policy-driven discrimination.
The availability of protection from the state is not only relevant of an applicant’s willingness to avail herself of diplomatic protection, it is also relevant to whether or not any fear of harm is well-founded. (See Minister for Immigration & Multicultural & Indigenous Affairs v S152/2003 (2004) 221 CLR 1 at [9]).
Ground 3
The Applicant’s third ground is that the Tribunal asked itself the wrong question in determining whether the Applicant had a well-founded fear of persecution.
First, it is submitted that the Tribunal asked itself the wrong question in relation to whether the Applicants would suffer persecution if they returned to Indonesia, basing its conclusion on an assessment that there had been no reports of serious incidents of violence against adherence of Islam Jamaah or LDII. It is submitted that the correct question for the Tribunal was whether there was a real chance of the Applicants suffering persecution if they returned to Indonesia having regard to the fact that the country information relied upon by the Tribunal indicated the government tolerated discrimination against and the abuse of religious groups by private acts and often failed to punish perpetrators.
Second, it was submitted that the Tribunal asked itself the wrong question in relation to the First Applicant’s activities teaching her religion in Australia. The Tribunal accepted the Applicant’s evidence but found since the “authorities had no interest in the Applicant because of her religious activities before her departure from Indonesia, (the Tribunal was) not satisfied that the authorities would have any interest in her if she returned there merely because she was involved in religious activities in Australia”[3]. It is submitted the case advanced by the First Applicant was that she would suffer persecution at the hands of local people in Indonesia as a result of her religious belief rather than persecution directly at the hands of state agents.
[3] Court book page 256
The question for the Tribunal was not whether the Applicant would be of interest to the authorities in Indonesia, but whether the Applicant would suffer persecution at the hands of local people if she engaged in the same activities in Indonesia as she was able to do in Australia. Therefore, it is submitted the Tribunal asked itself the wrong question in its consideration to whether the Applicant would come to the attention of the authorities.
Ground 4
Counsel did not press ground 4 of the application. The counsel for the Respondent Minister submitted that this ground was just a further particularisation of the second ground and submitted that the question posed to the Tribunal was whether the First Applicant was a person to whom Australia had protection obligations under the Refugees Convention. In other words, the Tribunal had to determine whether the Applicant was a refugee within the meaning of Article 1A(2) of the Convention. That question requires the Tribunal to assess the circumstances of an applicant and, in particular, the risk of harm that may befall her upon return to her own country.
Relevant to that assessment is the situation in that county at the time of the decision. The Tribunal did assess that situation and determined the First applicant was not a person to whom Australia had protection obligations. It is submitted then that the Tribunal answered the question posed by the statute and properly exercised its jurisdiction. The Tribunal found that the First Applicant did not have a well-founded fear of persecution from local people, even on the assumption that she would return to her home and “continue to be involved in LDII activities as she was in the past”. It is submitted that there was no jurisdictional error.
In considering the grounds raised by the Applicant, I am satisfied that the Tribunal did consider the Applicant’s claims and rejected them. The Applicant claimed that she would be at harm from the hands of local people but the Tribunal, on considering that claim, found that chance to be remote and insubstantial. The availability of state protection was only one of the basis upon which the Tribunal made that finding. As to the availability of state protection, the Tribunal made it clear that it was apparent from the Applicant’s evidence that she did not know the identities of those people who were responsible for the activities.
The Tribunal also found that it was apparent from the Applicant’s evidence that the Applicant did not know why the police may have been reluctant to assist her or, indeed, if they were reluctant to assist her. In my view, the Tribunal has considered the Applicant’s claim but rejected it.
As to the failure to ask itself the right question, I am of the view that the Tribunal did ask itself the right question; the question was whether the Applicant was a person whom Australia has protection obligation under the Refugees Convention as amended by the Refugees Protocol. The Tribunal had to determine whether the Applicant was a refugee and what the Tribunal had to look at was the risk of harm that the Applicant might face if she were forced to return to Indonesia.
The Tribunal was not satisfied that the Applicant would face other than a remote and insubstantial risk of harm if she were forced to return to Indonesia. Thus, the Applicant was found not to have a well-founded fear of persecution in home country. In my view, this ground fails.
In my view, the Applicant has not made out any case of jurisdictional error. It must follow, that the application must be dismissed because, in the absence of jurisdictional error, the Tribunal’s decision is a privative clause decision as defined by sub‑s.474(2) of the Migration Act, and a privative clause decision is not subject to declaration or orders in the nature of mandamus or certiorari.
The application will be dismissed with costs. The amount claimed by counsel for the Applicant on behalf of the Minister is $5,500.00 and, in my view, that is an appropriate amount.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 21 August 2007
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