SZGUH v Minister for Immigration
[2006] FMCA 723
•23 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGUH v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 723 |
| MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – failure by the Tribunal to apply correct test in respect of sporadic and random incidents by requiring systematic conduct of persecution – delay of more than 6 years between notification of Tribunal’s decision and seeking review unjustified – applicant claimed delay because looking for solicitor – delay unjustified – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A(1); 424A(3)(a); 477(1A); 474; 483 |
| NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 SZBNQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1033 Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1 SZHJR v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 203 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 R v Commonwealth Court of Conciliation and Arbitration Ex parte Ozone Theatres (Aust.) Ltd (1949) 78 CLR 389 Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 |
| Applicant: | SZGUH |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG1901 of 2005 |
| Judgment of: | Emmett FM |
| Hearing date: | 3 May 2006 |
| Date of last submission: | 3 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 23 May 2006 |
REPRESENTATION
| Applicant appearing on his own behalf |
| Solicitors for the Respondent: | Mr A. Cox, Phillips Fox Lawyers |
ORDERS
The application before this Court is dismissed.
That the applicant pay the First Respondent’s costs in an amount of $3,250.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1901 of 2005
| SZGUH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) decided on 16 October 1998 to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection visa to the applicants.
The applicant is a 32 year old male who claims to be a citizen of Indonesia and of Chinese ethnicity and Buddhist faith (“the Applicant”).
The Applicant claims that prior to arriving in Australia he was unemployed. The Applicant claimed that he was unable to secure employment from late 1993 until his departure to Australia in 1995.
The Applicant arrived in Australia on 11 July 1995, having legally departed from Jakarta on a passport issued in his own name.
On 29 April 1997, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
The Applicant claimed that he feared persecution by native Indonesians by reason of his Chinese ethnicity.
On 17 May 1997, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 17 June 1997, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. On 16 October 1998, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 19 July 2005, the Applicant filed an application and affidavit in this Court seeking judicial review of the Tribunal’s decision.
The tribunal proceeding
The Applicant gave oral evidence at the Tribunal hearing on 20 March 1998.
The Applicant’s claims and the decision of the Tribunal are accurately summarised in the First Respondent’s written outline of submissions as follows:
“7. The applicant is a citizen of Indonesia who claimed persecution for reasons of his Chinese ethnicity. His claims were summarised by the RRT as follows: [at AB 67.4 – 68.6]
7.1 He was subjected to verbal abuse since childhood by non Chinese Indonesians. He was also physically harassed and threatened with violence. He was beaten at school and asked for money.
7.2 He was unable to obtain employment because he was Chinese. The poor economic situation in Indonesia caused anger and jealousy towards the Chinese because they were seen as rich.
7.3 He was required to pay corrupt officials to obtain an identity card and a passport.
8. The applicant’s agent provided a submission which (in short) outlined instances of discrimination against ethnic Chinese in Indonesia and submitted that the riots in which ethnic Chinese were killed were indicative of systematic persecution [summarised by the RRT at AB 67.9 – 68.6].
The decision of the Tribunal
9. The RRT accepted that ethnic Chinese were a particular social group in Indonesia and that the applicant was a member of that social group. [AB 70.2]
10. The RRT found that the applicant became unemployed due to the failure of his father’s business (at which he was previously employed), and not because of discrimination against him as an ethnic Chinese. [AB 70]
11. The RRT accepted that the applicant was verbally abused and assaulted at school, but found that the verbal abuse and assaults were random and isolated events. [AB 70.8]
12. In relation to the applicant’s claims that he had to bribe government officials, the RRT accepted that corruption involving discrimination did occur, and that ethnic Chinese did suffer from threats to their safety, acts of violence and destruction of property in anti Chinese riots. [CB 70.9] The RRT then found, that such events were both indicative of racial tension and sporadic, random events. [CB 71.2]
13. The RRT noted that the Indonesian authorities did not encourage such events and generally moved to restore law and order. [AB 71.2]
14. The RRT noted that the Applicant’s advisor acknowledged that acts of violence against ethnic Chinese and the destruction of their property were of a arbitrary and random nature. [AB 71.6]”
The proceeding before this court
The Applicant was unrepresented at the hearing before this Court, although he had the assistance of an interpreter.
By consent, the Applicant was granted leave to rely on a document headed “My Application Grounds of Reviews” and filed in this Court on the day of the hearing. The application is in the following terms:
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 evidences 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 also tell as a real systematical (sic) discrimination.
c/ In fact the political game use Chinese as a scape goats because alway happen between 10 to 15 years seems the Authority never ever tried to stopped that supposed they have to do their duty to protect all the people.
They came after everything being destroyed.
d/ The Tribunal they made an error of Law not to consider that I feared persecuted by the reason as a Chinese (race) why they didn’t considered to be “well founded fear” While the Authority never ever tried to stop Chinese woman being rape or killed or by late 1960’s the R.P.K.A.D. The elite Army Commandos they killed and stabbed so many innocence Chinese people in Jakarta Kota (Chinese Business Centre) not even in news.
e/ The Tribunal made a jurisdictional error in failing to examine all other sources of Available Country Information and other evidence.
f/ The Tribunal made a jurisdictional error in failing to consider weather (sic) or not the applicant could have a “well founded fear” not withstanding the fact that the applicant might have not suffered any actual serious harm.
g/ The Tribunal failed to apply the real change (sic) test instead opting for believing of probality (sic) test”
On 13 December 2005, the First Respondent filed a notice of objection to competency on the basis that the Applicant’s application to this Court was made some 6 years and 9 months after notification of the Tribunal decision. The Applicant was notified of the Tribunal’s decision by a letter dated 19 October 1998. The Applicant filed an application for judicial review of that decision in this Court on 19 July 2005.
The filing of the application in this Court was plainly well outside the 28 days provided for by s.477(1A) of the Act. However, s.477(1A) of the Act relates only to privative clause decisions. If the Tribunal decision is affected by jurisdictional error, then the Court must consider whether or not the discretionary relief sought by the Applicant ought to be granted, in all the circumstances, having particular regard to the delay by the Applicant in seeking such relief.
In considering whether the Tribunal decision is affected by jurisdictional error I have regard to the Applicant’s grounds as follows.
Ground (a)
This ground purports to complain that the Tribunal failed to consider other evidence and material in relation to other Chinese Indonesians who claim to have suffered persecution by reason of their ethnicity. There are no particulars provided in respect of this ground. The ground would appear to be misconceived in that the Tribunal is obliged to consider the particular circumstances affecting the Applicant in considering whether the Applicant has a fear of persecution for a Convention reason. It is a matter for the Tribunal as to any other material to which it has regard, that is not material particularly about the Applicant.
The First Respondent submitted that this ground appeared to be focusing on the credibility of the Applicant. If that were the case, in any event, no adverse finding in respect of credibility was made by the Tribunal.
Accordingly, this ground is not made out.
Ground (c)
This ground appears to go to the merits of the Applicant’s application before the Tribunal and otherwise discloses no reviewable error.
Ground (d)
This ground appears to be misconceived in that the Tribunal did in fact accept that the Applicant feared persecution because he was an ethnic Chinese in Indonesia. Otherwise, this ground appears to seek merits review and otherwise discloses no reviewable error.
Ground (e)
This ground appears to be a complaint that the Tribunal failed to consider all other sources of available country information and other evidence, without providing any particulars to identify what sources or other evidence that were relevant. Pursuant to s.424A(3)(a) of the Act, independent country information is excluded from the obligations of s.424A(1) of the Act. Moreover, it is a matter for the Tribunal as to the independent country information to which it has regard and the weight it gives to that information. (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] (“NAHI”); QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [26]; SZBNQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1033 at [16].)
This ground otherwise discloses no reviewable error.
Ground (b), (f) & (g)
These grounds on their face disclose no reviewable error in that no particulars are provided. However, to the extent that the ground appears to be a complaint about the failure of the Tribunal to recognise ethnic Chinese in Indonesia as a particular social group, the ground is misconceived because the Tribunal accepted that ethnic Chinese are a particular social group in Indonesia within the meaning of the Convention and that the Applicant is a member of that social group.
To the extent that these grounds disclose a contention that the Tribunal erred in finding that acts of discrimination against ethnic Chinese in Indonesia are “sporadic and random events” and are not part of “systematic campaign against ethnic Chinese”, and therefore do not satisfy the requirements of the Refugees Convention as amended by the Refugees Protocol, such contention is addressed below.
The relevant passage from the Tribunal’s decision is as follows:
“The Tribunal accepts that the applicant was verbally abused and was assaulted at school, however, apart from the general assertions, the applicant did not provide information of a systematic series of acts of this kind against him. On the applicant’s own evidence the verbal abuse and assaults are random and isolated events. The Tribunal is satisfied that random abuse and assaults occur on individual Indonesians, who may be perceived to be Chinese, but it is not satisfied, on the evidence, that the occasional assaults that the applicant claimed constitute a systematic campaign against the applicant as an ethic (sic) Chinese…..The events described in the US State Department Report and the Far Eastern Economic Review cited above are indicative of racial tension within Indonesia and discrimination against ethnic Chinese but they are sporadic and random events; they are not part of a systematic campaign against ethnic Chinese; they are not encouraged by the Indonesian authorities and these authorities generally move to restore law and order. The independent evidence indicates that discrimination against Chinese is not evenly spread in Indonesia, that ethnic Chinese play a significant role in the Indonesian economy and are supported by government, that anti Chinese feeling arises from local grievances involving perceptions by other Indonesians about inequalities…in their economic circumstances. In a submission on behalf of the applicant, his adviser acknowledged the arbitrary and random nature of acts of violence against ethnic Chinese and destruction of their property, although noting that the situation had worsened in recent times.”
For those reasons, the Tribunal concluded that the Applicant does not face a real chance of persecution by reason of his ethnicity if he were to return to Indonesia and, therefore, the Applicant does not have a well founded fear of persecution by reason of his membership of a particular social group of ethnic Chinese in Indonesia.
The First Respondent submits that it was critical to the Tribunal’s findings that the Applicant, on his own evidence, stated that the instances of verbal abuse and assault were random and isolated events.
To the extent that the Tribunal stated that the Applicant did not provide information of a systematic series of acts of verbal abuse and assault at school, the First Respondent submits that the Tribunal was using the words “systematic series of acts” in the same way “systematic conduct” has been referred to in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429-430 (“Chan”) and Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1 at 30 (“Ibrahim”). The use of those words was considered by Sackville J in SZHJR v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 203 at [25] – [27], as follows:
“25. The notion of ‘systematic conduct’ was referred to in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, at 429-430, per McHugh J. As McHugh J observed in Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1, at [95], the use of this expression proved somewhat unfortunate in that some RRT decisions read it as meaning that there can be no persecution for the purposes of the Convention unless there has been a systematic course of conduct by the oppressor. McHugh J made it clear in Ibrahim that that had not been his meaning. Rather, he intended the expression to be a synonym for ‘non-random’. McHugh also said this (at [99]):
‘It is an error to suggest that the use of the expression “systematic conduct” in…Chan was intended to require, as a matter of law, that an applicant had to fear organised or methodical conduct, akin to the atrocities committed by the Nazis in the Second World War. Selective harassment, which discriminates against a person for a Convention reason, is inherent in the notion of persecution. Unsystematic or random acts are non-selective. It is therefore not a prerequisite to obtaining refugee status that a person fears being persecuted on a number of occasions or “must show a series of coordinated acts directed at him or her which can be said to be not isolated but systematic”. The fear of a single act of harm done for a Convention reason will satisfy the Convention definition of persecution if it is so oppressive that the individual cannot be expected to tolerate it so that refusal to return to the country of the applicant’s nationality is the understandable choice of that person.’ [Citations omitted.]
26. In the present case, the RRT used the expression ‘a course of systematic conduct’, or its equivalent, on three separate occasions. On each occasion, the RRT cited the observations of McHugh J in Chan. Of course, the RRT’s decision in the present case was handed down long before the clarification of the law in Ibrahim.
27. On the first occasion that RRT used the expression ‘a course of systematic conduct’, it seems to me clear enough that it intended to distinguish between random acts which are not directed to any particular racial or ethnic group, such as attempts to extract money from suitable victims, and selective harassment based upon the race or ethnicity of a particular person or group of persons. This involved no error by the RRT.”
The First Respondent submits that the Tribunal referred to Chan where it stated:
“Not every threat of harm or interference with a person’s rights for a Convention reason constitutes “being persecuted”. Mason CJ referred to persecution as requiring “some serious punishment or penalty or some significant detriment or disadvantage” (Chan at 388). Harm or threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group which is subjected to such harassment, amounts to persecution if done for a Convention reason…The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.”
The Tribunal went on to state that the persecution must be found to be for one or more of the Convention reasons, being “race, religion, nationality, membership of a particular social group or political opinion.” The First Respondent submits that this passage by the Tribunal accurately reflects the applicable law.
The First Respondent submits that, in the passage quoted above, the reference by the Tribunal to “selective harassment”, is a reference to the passage of McHugh J, quoted above in SZHJR, that being the correct test. The First Respondent submits, that by referring, albeit obliquely, to that passage, the Tribunal was using the term “systematic series of acts” merely as away of emphasising that the claim made by the Applicant was in respect of “random and isolated events”.
Plainly, had the “occasional assaults” that the Applicant claimed to have suffered, been found to be part of a systematic campaign against the Applicant, as an ethnic Chinese, then persecution for a Convention reason would be established. The First Respondent submits, however, that the Tribunal was not requiring that that was the only way in which the Applicant could have established that he had a well founded fear of persecution for a Convention reason. Rather, the Tribunal was identifying that this Applicant’s claims were in respect of random and isolated events. That is a finding of fact that the First Respondent contends was open to the Tribunal on the evidence and material before it.
Having found that the incidents about which the Applicant complains, were “sporadic and random events”, the Tribunal stated that they were not part of a “systematic campaign against ethnic Chinese” and they were not “encouraged by the Indonesians authorities” and, further, that the authorities “generally move to restore law and order.”
The analysis by the Tribunal, in the proceeding before this Court, appears to be on all fours with the reasoning of the tribunal in SZHJR, where that tribunal referred to a “a course of systematic conduct”, or similar words, on 3 occasions. Sackville J found that the Tribunal’s use of “a course of systematic conduct” in the first instance was intended to distinguish between random acts which were not directed to any particular social or ethnic group, such as attempts to extract money from victims and selective harassment based upon race or ethnicity of a particular person or group of persons.
However, in the proceeding before this Court, the random acts referred to by the Tribunal were the verbal abuse and assaults at school as well as payment of bribes demanded by officials. The Tribunal considered that the verbal abuse and beatings at school were not persecution because they were random and isolated events, rather than because they were not directed to any particular racial or social or ethnic group.
The Tribunal accepted that ethnic Chinese Indonesians suffered “official and societal discrimination and harassment” but that such incidents are indicative of racial tension within Indonesia and were not part of “a systematic campaign against ethnic Chinese.
Again, Sackville J, in SZHJR, found that the tribunal in that case used the expression, “a course of systematic conduct”, to “import a requirement of organised or methodical conduct”. Sackville J found that when addressing the question of violence, the Tribunal fell into error in requiring a course of systematic conduct to have been established.
Sackville J, in SZHJR, went on to find that “even if the conduct complained of by the appellant had been persecutory in nature, the government of Indonesia neither encouraged nor condoned the outbreaks and taken ‘reasonable and effective steps to address the problem of these outbreaks of rioting’.” (SZHJR at [31]) For those reasons the tribunal concluded the appellant did not have a well founded fear of persecution by way of outbreaks of sporadic violence because of his Chinese ethnicity. Sackville J found that such reasoning was an independent basis for the conclusion it ultimately reached in that, “if the appellant feared a repeat of mob violence directed at people of Chinese ethnicity, the Government of Indonesia was willing and able to take effective steps to prevent the violence or to minimise the consequences of it.”(SZHJR at [32])
In the case before this Court, similar words are used by the Tribunal in finding that the sporadic and random events are “not encouraged by the Indonesian authorities and these authorities generally move to restore law and order.”
Even approaching this Tribunal decision with an “eye not keenly attuned to error” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272; Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [15]; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at 641), it is difficult to be confident that the Tribunal properly understood that random and isolated events may be sufficient to amount to persecution in certain circumstances and that it is not necessary to find systematic conduct in order to be satisfied that the Applicant meets the statutory prescribed criteria for a protection visa (s.36(2) and s.65(1) of the Act). The Tribunal appears to have proceeded on the basis that, once it was satisfied that the conduct about which the Applicant complained was isolated and random events, then it was not possible for the Applicant to satisfy the Tribunal that persecution had occurred by reason of his membership of a particular social group in Indonesia.
Moreover, I am not persuaded that the Tribunal, in the way in which it has expressed its decision, was making a positive finding that protection was available to the Applicant.
For those reasons, I shall proceed to consider the issue of the Applicant’s delay in filing in this Court on the basis that the Tribunal’s decision was affected by jurisdictional error and that the Applicant’s application is not incompetent because it was filed more than 28 days after notification of the Tribunal’s decision.
Delay
Despite having been directed on 11 August 2005 to file any evidence in support of his application, the Applicant filed no evidence to explain his delay of 6 years and 9 months between notification of the Tribunal’s decision and filing in this Court
Delay is certainly a ground upon which constitutional writ relief may be refused. (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 (“SAAP”) at [84] and [211]; R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd (1949) 78 CLR 389). McHugh J in SAAP at [80] observed:
“The issuing of writs s 75(v) of the Constitution and s 39B of the Judiciary Act is discretionary. Discretionary relief may be refused under s 39B if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is delay on the part of the applicant or the applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands.”
In considering the delay by the Applicant for 6 years and 9 months in filing an application for judicial review by this Court of the Tribunal’s decision and the importance of finality of administrative decisions, I have regard to the comments of McHugh J in Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 (“Ex parte Marks”) at 495 in which he said the following:
“Where an applicant seeks the issue of constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions. In that respect, the present case, although important to the applicant, is not as important as many other cases.”
By consent, the Applicant was granted leave at the hearing before this Court to give oral evidence of his explanation for the delay. Essentially, that explanation was that during that time he did not know about the law and did not know where to look for assistance. When asked by the Court, what steps he took during that time to look for assistance, he responded that he just worked and didn’t look for a solicitor.
In cross examination, the Applicant agreed that he was represented by a solicitor, who prepared submissions on his behalf when he lodged his protection visa application. He agreed that he was notified about the decision. When asked whether he sought legal advice when he received the Tribunal’s decision, he responded that he was looking for it, that his previous solicitor did not wish to help him and that he was still looking for advice. When it was put to him that he could have approached any other lawyer in the same way he had approached his original adviser, the Applicant agreed but stated that he had tried his old adviser but that he had not wanted to help him. The Applicant stated that once his old adviser had refused to provide him with assistance, he had not approached any other lawyer and had taken no steps to do so since that time.
There is no justified reason contained in this explanation as to why the Applicant delayed for so long. He had managed to access a lawyer in respect of his protection visa application. For those reasons his explanation that he did not know where to look and his failure to take any steps to seek to inform himself, is entirely inadequate and unreasonable in the circumstances.
The nature of constitutional writ relief, as referred to by McHugh J in Ex parte Marks, makes it clear that one must consider the public interest in there being efficacy in public acts, decisions and judgments which cannot be allowed to become “hostage of an applicant’s search for favourable legal advice’’ (Ex parte Marks at 496).
In balancing the interests of justice to the community in having such administrative decision making finalised and the interests of the Applicant in having an opportunity to have his claims heard and considered according to law, I am satisfied that the delay of 6 years and 9 months in seeking constitutional writ relief, occasioned solely by the complete inactivity by the Applicant, is conduct amounting to undue, unreasonable, unwarrantable and unjustified delay and the relief sought should not be granted.
Accordingly the Applicant’s application before this Court is dismissed.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: S.Choo
Date: 22 May 2006
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