SZGRZ v Minister for Immigration

[2007] FMCA 284

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGRZ & ORS v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 284

MIGRATION – RRT decision – Indonesian applicants of Chinese ethnicity and Christian religion – entered Australia before 1998 riots – Tribunal found no real chance of persecution if returned in 2001 – no entitlement to relief found.

Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.474, 483A, Pt.8

Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), Sch.1 cl.8(2)(b)

Applicant S1174 of 2000 v Refugee Review Tribunal [2004] FCA 289

Applicants S1573 of 2003 v Minister for Immigration & Anor [2005] FMCA 47

Muin v Refugee Review Tribunal & Ors; Lie v Refugee Review Tribunal & Ors (2002) 190 ALR 601

SZAWW v Minister for Immigration [2003] FMCA 479
SZDLR v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 144 FCR 368
SZDZV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 416

First Applicant: SZGRZ

Second Applicant: SZGSA

Third Applicant: SZGSB

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1794 of 2005

Judgment of: Smith FM

Hearing date: 26 February 2007

Delivered at: Sydney

Delivered on: 26 February 2007

REPRESENTATION

Counsel for the Applicants: Second applicant wife in person

Counsel for the First Respondent: Mr D Godwin

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed. 

2. The first and second applicants must pay the first respondent’s costs in the sum of $5,000. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1794 of 2005

SZGRZ

First Applicant

SZGSA

Second Applicant

SZGSB

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 8 July 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 2 March 2001 and handed down on 28 March 2001. The Tribunal affirmed a decision of a delegate made on 11 May 1998, which refused to grant protection visas to the applicants.

2. Section 483A has been repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8).

3. The Tribunal’s decision was made before the 2001 Act which inserted the privative provisions in Pt.8 of the Migration Act. I am told from the Bar table by the Minister’s counsel that, following the Tribunal’s decision, the applicants were joined as represented parties to either the Muin or the Lie proceedings in the High Court, and that it is reasonable to assume that this occurred before the commencement of the 2001 Act.  The present proceedings are therefore not subject to the privative provisions (see Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), Sch.1 cl.8(2)(b), and SZAWW v Minister for Immigration [2003] FMCA 479 at [4], Applicants S1573 of 2003 v Minister for Immigration & Anor [2005] FMCA 47 at [4]‑[8], SZDZV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 416 at [12], and SZDLR v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 144 FCR 368 at [33]). My present jurisdiction under s.483A is therefore the jurisdiction of the Federal Court under s.39B of the Judiciary Act 1903 (Cth) unaffected by s.474 of the Migration Act.

4. I am also told from the Bar table that the applicant’s Muin and Lie involvement gave rise to a separate proceeding on their part, which was remitted by the High Court to the Federal Court and was ultimately the subject of a decision of Emmett J published as Applicant S1174 of 2000 v Refugee Review Tribunal [2004] FCA 289 on 20 February 2004, in which his Honour refused orders nisi to these applicants and numerous other applicants in a similar position.  I was not informed whether these applicants were joined in the application for leave to appeal from Emmett J’s appeal which was subsequently refused by Jacobson J.  If it was not, there was then a delay of some 17 months before the present proceedings commenced in this Court.  The Minister argues that this unexplained period constitutes unwarranted delay which should cause the refusal of relief in the Court’s discretion.  As will appear, I do not need to address that issue due to my failure to be satisfied that the applicants have made out substantive grounds for any relief. 

5. The applicants are a family with Indonesian nationality.  The first applicant, the husband, arrived in Australia in December 1994 and the other two applicants, his wife and son, arrived in September 1995.  They overstayed their visitors’ visas, and on 28 January 1998 they first claimed protection in Australia under the Refugees Convention.  The applicant husband explained this delay to the Tribunal: 

   … he had been misled for years by friends who had told him that he had needed many thousands of dollars for this.  In 1998 he had gone [to] Adrian Joel and Co. and asked them what to do about legalising the family’s status in Australia: the applicants’ visitors’ visas had run out some months after coming to Australia.  The adviser had advised the applicants that the situation in Indonesia was such that they could apply for protection visas to stay in Australia. 

6. The application for protection visas was lodged by Adrian Joel and Co on 28 January 1998.  It did not include any sworn statement of facts, but Mr Joel described his instructions in a covering letter: 

   The applicant had a printing business and he also made small garments at [address].  He did not have a registered business and it was just an open market-type situation.  From 1981 to 1986 he did his very best to try to maintain himself in his own business however, being consistently subjected to such types of significant discrimination, served as the catalyst for the ultimate closure of the business.  He sought to establish another business from 1990 to 1993 and this business was also closed down.  From 1986 to 1990 he worked for his sister, T, before coming to Australia. 

   The applicant believed that, as a result of the fact he was consistently subject to such bribery and standover tactics, by virtue of his ethnicity it was virtually impossible to have the same benefits and opportunities which could be ascribed to other Indonesian citizens.  The applicant emphasises on a repetitive basis Government officials would simply come in and demand payment.  This situation was continuous from 1981 during his attempts to establish a business.  Sometimes it would happen every month; on other occasions it would happen even more.  This was the reason why he had to close down his business in the fiercely competitive environment.  It was very hard to have a normal business because of the natural hostility, aggression and suspicion demonstrated by the indigenous Indonesians. 

   The applicant could not complain to the police because they would also see it as an opportunity to take money and also focus attention upon his business.  Simply because the applicant was Chinese he was subject to such intimidatory, significant and compelling discrimination. 

   Government officials would come and say he had to pay money or else they would close his business.  They tried to destroy his market produce unless he paid the money.  The applicant does not know the names of any of these people; he could not identify.  He cannot go back because he feels that this type of mounting government pressure and corruption will be duplicated and expose him to the type of arbitrary intimidation that comprises the principal foundation of this application.  The applicant feels sure the government authorities will not be able to appropriately protect him, notwithstanding whether or not he pays money. 

   This situation is significantly exacerbated by virtue of his religion – Chinese Christian – however he does not specifically rely upon religious persecution.  The applicant cannot relocate to another part of Indonesia because the same type of attitude prevails. 

   I earnestly seek to maintain that, under the circumstances, my client can rely upon a ‘sur place’ situation whereby there can be seen to be a demonstrable worsening of the circumstances that he sought to rely upon even since his arrival in Australia.  This has, of course, been precipitated by the social, economic and political collapse which is currently taking place in Indonesia. 

7. The applicants presented no corroborative evidence of their claims to the Department nor to the Tribunal, but attended two hearings held by the Tribunal on 3 March 2000 and again on 23 February 2001.  According to the documents before the Court, the second hearing was required as a result of the termination of the appointment of the person who first constituted the Tribunal before he or she could make a decision.  The second hearing was held by the member reconstituting the Tribunal.  An account of that hearing is given in the Tribunal’s statement of reasons.  A transcript of the hearing is not in evidence and I have no reason not to accept the description given by the Tribunal. 

8. The applicants confirmed the history given in Mr Joel’s letter.  The Tribunal noted that they made “no mention of facing difficulties over their religion”.  Their account of difficulties faced in Indonesia was: 

   They said only that, due to the fact of owning their own business and being Chinese, they had faced constant demands for money from Indonesian government officials such as tax inspectors, and that this was an all‑too‑common experience.  For example, they used to get a favourable tax concession for using fewer than 10 sewing machines for their garments business.  But they had had problems with two bureaucrats [tax inspectors?] who used to accuse them of using more than 10 machines, and then demand bribes in return for not imposing fines or closing the business down for alleged contravention of the law.  In his own words, the applicant husband’s desire to stay in Australia was expressed as follows: 

   My life [in Indonesia] was stable but I didn’t feel safe.  People kept wanting me to give them money.  Here, I felt that this country was a stable one.  Here there is no bribery.  In Indonesia I would have to pay money because I’m Chinese. 

   The applicant husband said he had not been physically harmed in Indonesia but his wife reminded him that once he had been hit by a man who had robbed him.  The applicant husband then added that if one paid gangs, one was not attacked by them. 

9. The applicants expressed concern to the Tribunal at returning to Indonesia, where at that time Mr Wahid had become President.  The applicants had concerns arising from their ethnic background and the May 1998 rioting.  The Tribunal said that it put to them independent evidence concerning the then current situation in Indonesia in relation to ethnic Chinese and Christians. 

10. Under the heading “Findings and Reasons”, the Tribunal discussed the situation that the applicants would face if they returned to Indonesia, with reference to numerous sources of information.  The Tribunal made a finding that “ethnic Chinese in Indonesia such as the applicants do not face discrimination amounting to persecution over their ethnicity”.  It also found that “independent evidence shows that Christians are not persecuted in Indonesia in terms of being prevented from practising their religion freely”. 

11. The Tribunal noted, in relation to the history presented by the applicants: 

    The applicants’ evidence does not demonstrate that they came to Australia for the purpose of escaping persecution over their religion and ethnicity (or for any other Convention ground).  The applicant husband said that he came here to find better work, and it would appear that he brought his family over simply so that the family as a whole could find a more comfortable life in this country, the desire of all immigrants. 

12. The Tribunal considered the one incident where the family suffered physical harm, when the husband had been bashed by a robber.  It was not satisfied that this was motivated by the applicant husband’s race or religion. 

13. The Tribunal considered the applicants’ claims of being victims of extortion by government officials and others.  It noted evidence at that time that “extortionary demands are made on people in general who depend on government favour, and people in general pay bribes to gain advantages from officials or colleagues”.  The Tribunal concluded:  

    I accept that extortion can occur for a Convention reason.  However, I am not satisfied that this is such a case.  It was put to the applicants, and not disputed, that anyone wanting to do business in Indonesia, ethnic Chinese or not, had reluctantly to subject themselves to some degree of extortion and that this was a fact well acknowledged by, for example, Australian firms seeking a foothold in Indonesia. 

14. The Tribunal thought that the applicants had been targeted “because their level of income … led to them being perceived as suitable subjects for extortion”.  It also suggested that the applicant “might have needed a favour from government officials” due to tax difficulties.  It thought that they had “exaggerated the extent of the extortionary demands made upon them” and concluded: 

    I am not satisfied that the extortionary demands made on the applicants were so harsh as to have deprived them of their livelihood in Indonesia.  Nor, for reasons given earlier, am I satisfied that the extortion they suffered was for a Convention reason. 

15. The Tribunal then turned to consider their claim that the rioting which occurred in Indonesia in 1998 gave rise to a foundation for fears against return.  It addressed the applicants’ claim that as ethnic Chinese and as Christians they had claims to protection under the Convention in Australia as a result of these events.  The Tribunal said: 

    I am, however, not satisfied that the 1998 riots provides cause for the applicants to genuinely argue that they face a “real chance” of being persecuted as ethnic Chinese. 

16. The Tribunal pointed to evidence that the violence had been “random and non‑purposive in nature” and that proportionally few ethnic Chinese suffered harm.  It said “more importantly” the independent evidence did not “promote a conclusion that the Indonesian authorities promote, condone or permit persecution of Christians in Indonesia or withhold reasonable protection”, and it referred to actions by the then President promoting religious and ethnic tolerance.  It said: 

    The Tribunal is satisfied that when rioting or other civil disturbances do occur, including those which target Christian churches, the Indonesian authorities do act firmly and in force to suppress violence and to protect those targeted. 

17. The Tribunal noted that there was a risk of future riots, but accepted advice that “the authorities have learned from the mistakes of 1998 and are now better able to respond to riots”.  It concluded generally: 

    The Tribunal is satisfied that on return to Indonesia the applicants would not face harm or mistreatment amounting to persecution by reason of their religion or ethnicity in relation to which reasonable and effective protection would be denied by the authorities of Indonesia.  The Tribunal finds, therefore, that Australia is not obliged to give the applicants protection under the Convention. 

    The applicants’ adviser has suggested that the applicants have sur place claims to protection.  I note that the applicants’ evidence does not suggest any reason why they might have sur place claims.  It is pertinent to re‑state that independence evidence does not demonstrate that ethnic Chinese returning to Indonesia from abroad have particular reasons to fear persecution for a Convention ground (CX35282). 

    I accept that the applicants, on return to Indonesia, will experience the political and economic uncertainty that exists in varying degrees among the population of that country.  I am not satisfied, both on their own evidence and the general independent evidence, that they have a greater likelihood of experiencing any harm from socio‑economic change than others in Indonesia, whether ethnic Chinese and Christians or not. 

    In sum, the Tribunal is not satisfied that the applicants have a well‑founded fear of Convention‑related persecution in Indonesia such that Australia is obliged, as a Convention signatory, to give them protection in this country. 

18. I have carefully considered the Tribunal’s reasons and, in my opinion, it sufficiently identified the claims the applicants had made for protection under the Refugees Convention.  It addressed their claims with findings which, in my opinion, were open to it on the material that was before the Tribunal.  I am unable to identify error in the Tribunal’s procedures or reasoning which would support the issue of writs of certiorari to quash the Tribunal’s decision and of mandamus to require a reconsideration of their 1998 application for protection. 

19. The applicants have not been represented in their proceeding in this Court.  Their original application expressed only their belief that they are refugees, and does not identify grounds supporting the relief sought from this Court. 

20. A written submission filed on 24 November 2005 has the following grounds: 

    Applicant Grounds of Review 

    a.The Tribunal made jurisdictional error in as much as it focused its attention the issue of credibility issue and failed to take properly into account other evidence and materials in relation to the plight of many Chinese Indonesia who had suffered persecution by reason of ethnicity. 

    b.The Tribunal made jurisdiction error regarding for the Chinese people because the discrimination against the Chinese people can be tell (found) as a real systematical discrimination. 

    I.The racialism against Chinese being repeated all the time the big one between 10 to 15 years, seem in fact the authority they didn’t tried to protect the victim they supposed to as their duty to protect all the people but they never ever tried to stop it.  They came after everything being destroyed and asked them to work again until enough to be destroyed again. 

    II.The discrimination being set out by the Government such as: 

    i.Only the Chinese they have to change their name (strong advice) to Indonesia name not Arabic or Indian etc they need to change their name.  I wonder which the real Indonesia name. 

    ii.We have been few generation in Indonesia even Indonesian was not bound yet now we have to have a citizenship but not to the other Indonesian. 

    Even these 2 things the brief evidence for the discrimination what so ever reason. 

    c.The Tribunal they made an error of law not to considering that Chinese claimed rise by the applicant at the hearing that he feared persecuted by the reason of his Chinese descent.  Why they didn’t considered to be “well founded fear” by the experienced the authority never tried to protect them even tried to stop the riot due to experience / experience of Chinese people during late 1960 where the elite army commandos they killed and stabbed so many innocent people in Kota (Chinese business centre) but where is the news.  Nothing. 

    d.The Tribunal made a jurisdictional error in failing to examine all other sources of available country information and other evidence. 

    e.The Tribunal made a jurisdictional error in failing to consider whether or not the applicant could have a well‑founded fear notwithstanding the fact that the applicant might have not suffered any actual serious harm. 

    f.The Tribunal failed to apply the real chance test instead opting for balance of probability test. 

1. The applicants have not presented any detailed written or oral arguments explaining the contentions in these grounds.  Essentially, I consider that most of the grounds contain arguments concerning the merits of the Tribunal’s assessments of their risk if they return to Indonesia, rather than identifying legal or jurisdictional flaws in its reasoning.  General assertions of error of law and jurisdictional error are not particularised so as to give them any substance.  

2. The legal error which is alleged in Ground ‘e.’, of failing to consider their real chances of persecution even if they had not previously suffered any “actual serious harm”, is not made out on the reasoning of the Tribunal.  Plainly the Tribunal did, in my opinion, address their future situation, and I am not satisfied that it misconceived the legal question it was required to address. 

3. In relation to Ground ‘f.’, the Tribunal correctly instructed itself as to the “real chance test” in its general discussion of the law at the commencement of its reasons, and at least one point in its reasoning, which I have referred to above, indicates that it addressed that test when considering the future situation of the applicants. 

4. I do not consider that any ground for the issue of relief has been made out, and therefore the application should be dismissed. 

5. The applicants were represented at today’s hearing by the applicant wife.  She had no pertinent submission to make to me.  Her point was that the applicant husband had not deliberately come to Australia “to work”, but had ended up working in Australia to support the family.  She also pointed to their current “problem”, which is that they have a son who was brought to Australia at the age of one year and eight months and who is now 14 and has commenced high school in Australia.  She points out that he would have difficulty speaking Indonesian and fitting into Indonesia if he had to return.  I think there is a humanitarian case here which could be considered by the Minister, at least in relation to the son’s position.  The delay in resolving the status of the Tribunal’s decision is accounted for in significant part by deficiencies in the legislation and court system in relation to review of migration decisions. 

6. However, as I have explained to the applicant wife, it is not the function of the Court to consider whether the applicants have a different basis for being given permission to stay in Australia, and I do not consider that it is appropriate for me to make any recommendations to the Minister in this case. 

7. For the above reasons, I must dismiss the application. 

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  9 March 2007