SZGWP v Minister for Immigration
[2006] FMCA 1445
•26 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGWP v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1445 |
| MIGRATION – Refugee Review Tribunal decision – Indonesian Christian of Chinese ethnicity – Department file lost – what was actual claim of Applicant – Court not satisfied that Applicant claimed Chinese ethnicity – Application dismissed. |
| Migration Act1958 (Cth) |
| Applicant: | SZGWP |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2045 of 2005 |
| Judgment of: | Baumann FM |
| Hearing date: | 25 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 26 September 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jenkins |
| Counsel for the Respondent: | Mr McInerney |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The Application be dismissed.
The applicant is to pay a contribution to the costs of the first respondent to be fixed in the sum of $5000 within 90 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2045 of 2005
| SZGWP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(settled from the ex tempore reasons)
Background
The Applicant, a citizen of Indonesia, arrived in Australia on 18 March 2001, and on 17 April 2001 he lodged an application for a protection visa (class XA) with the Department. The application was lodged with the assistance of a migration agent Ms Mimi Wong, of Golden Star Consulting and Marketing Services.
On 31 May 2001 a delegate of the Minister, Mr Terry Lew refused to grant a protection visa and on 22 June 2001 the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for review. The Application for review (at CB1-4) was also prepared with the assistance of
Ms Wong’s firm, and when asked at section D to “please tell us why you disagree with the department’s decision” the Application states:
“The social and economic situation in Indonesia is getting worse, the instability in the society has caused hostility against the ethnic group. I am afraid that the anti-Chinese violence will occur again. There are many riots and unrests in Indonesia. Therefore I would like to seek protection here.”
On 12 November 2001 the Tribunal wrote to the Applicant and after indicating that it was not prepared to make a favourable decision on the material alone the Applicant was invited to come to a hearing on
13 December 2001, “to give oral evidence and present arguments in support of your claims”. In a response dated 18 November 2001, the Applicant indicated he wanted to come to a hearing, and requested an interpreter. The Applicant claims that document (page 21 CB) “was prepared by one of Mimi Wong’s staff whose name I can no longer recall”.
The applicant did not attend the hearing and pursuant to s.426A of the Migration Act1958 Cth, (“the Act”) the Tribunal proceeded to make a decision on the review on the papers. Reasons were delivered on
16 January 2002, again in the absence of the Applicant.
Application for review
The Amended Application for review filed 5 September 2006 contends that the Tribunal “failed to consider the case for protection asserted by the Applicant” and particularised that ground as follows:
“The case asserted by the Applicant was that he was a Christian from Indonesia who was ethnically Chinese and that he feared persecution based upon his religious belief and his racial origins. The Refugee Review Tribunal decided the case on the basis that the applicant was asserting that he was a Christian who was ethnically Indonesian.”
In support of the Application, the Applicant relies on an Affidavit sworn 5 September 2006 which relevantly deposes that:
“(2)I am not ethnically Indonesian. I am ethnically Chinese. My family changed its Chinese name to an Indonesian one.
(3)The claims I made in my Application for a protection visa were that I was a Chinese Christian from Indonesia, and I feared harm based upon both my race and religion should I return to Indonesia.
I allowed the applicant to rely upon the said affidavit, on the basis that the respondent be permitted to cross-examine him if desired.
Mr McInerney, on behalf of the Minister, did so, and for completeness I incorporate parts of the relevant transcript in my judgment as follows:
MR MCINERNEY: Do you have any recollection of the words that you caused to be written on the protection visa Application form in 2001?
THE INTERPRETER: What do you mean, sir?
MR MCINERNEY: My question is do you have any recollection of the words that you caused to be written on the protection visa Application form in 2001?
THE INTERPRETER: Not in detail in the outline, yes.
MR MCINERNEY: What is the outline of that which you say was written on the protection visa application form back in 2001.
THE INTERPRETER: That I was a Chinese Christian who suffered from heavy pressures in Indonesia – under heavy pressures, heavy pressures in Indonesia, very frightening.
MR MINERNEY: I want to suggest to you that in truth you had no actual recollection of making a claim that you were a Chinese Christian Indonesian in your protection visa.
THE INTERPRETER: What do you mean?
MR MCINERNEY: What I am suggesting to you is that when you made your initial protection visa application in 2001, you did not make a claim that you were a Chinese Christian Indonesian but only that you were a Christian Indonesian.
THE INTERPRETER: I said to Mimi Wong that I was a Christian Chinese, maybe because after passport she decided to put that I was from Indonesia.
And further:
MR MCINERNEY: Is it the position that sitting here now you are not sure whether any claim was made in your protection visa application that you are a Chinese Christian Indonesian, but that only the claim was made that you are a Christian Indonesian.
THE INTERPRETER: I do not doubt today that I am a Christian of Chinese background.
MR MCINERNEY: My question is not directed to whether you are a Christian of Chinese background. My question was directed to whether sitting here today, whether or not you are sure that a claim was made in your protection visa application that you are a Chinese Christian Indonesian.
THE INTERPRETER: I am Chinese and I am a Christian.
And finally:
MR MCINERNEY: So, to avoid any doubt, what I am suggesting to you is that you were quite mistaken to suggest that you have any recollection of what was contained in your protection visa application back in 2001.
THE INTERPRETER: I remember that I said I am a Christian of Chinese background.
MR MCINERNEY: And I am suggesting to you that in your initial protection visa application all that was mentioned is that you are a Christian from Indonesia, and that there was no mention made that you are a Chinese Christian from Indonesia.
THE INTERPRETER: I cannot recollection in detail what was put by Mimi Wong in that application, but I am a Christian of Chinese background.
The file is missing
The case is made a little more difficult for the inability of the Department to find the relevant file which of course would contain, one would assume, the original Application for visa. Mr Todd Mills, an administrative officer with the Department with the responsibility for locating files, opines that despite having conducted every search available to him the Department file has been lost and is not likely to be found. It is clear from the memorandum at CB 47 that the Department file was returned to the Department on 17 January 2002.
The applicant says he “was not given copies of the application filed with the department” and further that “Ms Wong has left Australia so I cannot get copies of my documents from her”.
By Affidavit filed 22 September 2006 Mr Terry Lew (the delegate) attached a copy of a draft decision which he had retrieved from his personal directory on the H-drive on his computer. He says, “The “TG.INDIGCHRIST.0501.doc” reflects the way he personally records such documents, and that:
“I use the letters “INDIGCHRIST” to indicate to me that the applicant’s claims were as an indigenous Indonesian who was a Christian. He quite fairly in my view observed that as this was a word document, it did not contain my signature, which would have indicated the actual reasons for decision. As the decision was made in 2001 I do not have an independent recollection to say that this document is an accurate representation of my reasons for decision.”
The document attached says, under the heading Assessment of Protection Obligations, inter alia that:
“(1)The applicant’s claims are made at folios 1-19. The following is a summary of the Applicant’s claims:
- The Applicant is an ethnic Indonesian and Christian.
- The Applicant fears harm from ethnic and religious conflicts in Indonesia because he is a Christian.
Principles
It is common ground that the decision of the Tribunal is a privative clause decision incapable of review, unless jurisdictional error can be detected. In the second ground relied upon by the Respondent, the Minister says if jurisdictional error is found then the court would dismiss the Application in the exercise of its discretion for delay.
The Tribunal decision
The Tribunal had before it the Department file which included the protection visa application and recorded that:
“The Applicant is a 42-year-old married Christian man of Indonesian ethnicity. His wife and nine-year-old son continue to reside in Indonesia, as do his mother, brother and sister. The applicant speaks, reads, and writes Indonesian. He completed approximately 14 years of education. He has held the same job since 1980. Since 1990 he has lived at the one address in Semarang.”
“The Applicant feared generalised religious violence in Indonesia. He states that 85 per cent of the population are Muslim. He claims that over the past few years they have non-stop conflict over religion in Indonesia. He also states that Indonesia is in political turmoil. He claims that native Indonesians are anti-Chinese, anti-Christian, and anti-Buddhist. He claims that as a Christian in Indonesia, his life and property are in danger. He claims that Muslim extremists have burned churches and protested even in Jakarta. He claims that the government and police in Indonesia are Muslims and native Indonesians and are very corrupt.”
The learned member dealt extensively with the “independent information” and no challenge has been raised before me about the way in which the member distilled from the country information (at CB 48-263 of the Court Book) the summary contained in the reasons for decision. In such summary the member frequently refers to issues involving “anti-Chinese” actions and “occasional localised attacks against Chinese Christian communities.”
In the reasons the member makes the following relevant findings:-
“The Applicant has made no specific claims of past persecution. He simply claims to fear generalised religious tensions and instability in Indonesia. The Tribunal accepts that the Applicant feels apprehensive about returning to Indonesia because of the continued economic, social and political unease which that country has experienced over the past few years. While the Tribunal acknowledges the Applicant’s general apprehension and his fear of the future, especially from an economic perspective, the Tribunal is not satisfied that he has a well founded fear of persecution in Indonesia for reason of his religion, nor for any other Convention reason. This will be discussed further below.
The Tribunal acknowledges that Indonesia went through a period of intense turmoil in 1998 which culminated in the resignation of former president Suharto. After the resignation of Suharto, and particularly since the election of former President Wahid in democratic elections in 1999, a significant change has occurred in Indonesia from the situation which prevailed in the early party of 1998. Further improvements have occurred since the appointment of Megawati Soekarnoputri to the presidency this year. There have been far fewer anti-Chinese and anti-Christian attacks and riots since 1998. Those which have occurred have been either largely localised and isolated (such as those in the Moluccas), part of a one-off political campaign aimed at destabilising the current government (such at the Christmas Eve bombings in 2000), or otherwise random and sporadic. There has been no return to the intense anti-Chinese/anti-Christian riots which occurred in 1998. There is no evidence before the Tribunal which satisfies it that here is a real chance that such violence will return to Indonesia in the reasonably foreseeable future. After considering the Applicant’s claims along with the independent information referred to above, the Tribunal finds that the chance that the Applicant will be affected by anti-Christian violence in his home city of Semarang in the reasonably foreseeable future is remote.
Furthermore, when anti-Christian attacks have occurred sporadically since 1998, the police and other security forces have moved quickly to quell the violence and assist the victims.
This indicates that the Indonesian government does not condone such attacks and is willing and able to provide protection to citizens. On the basis of this independent evidence, coupled with the fact that the Applicant himself has not claimed to have ever suffered any actual past persecution for reason of his religion in Indonesia, the Tribunal is not satisfied that the Applicant has a well-founded fear of persecution in Indonesia in the reasonably foreseeable future for reason of his religion. As the Applicant is of native Indonesian ethnicity and not ethnic Chinese (as the majority of Christians in Indonesia are) he is not easily identifiable as a Christian. This makes the chance that he will be targeted as a Christian even more remote than it would otherwise have been.
The Tribunal is not satisfied, on the evidence before it, that the Applicant has a well founded fear of persecution within the meaning of the Convention” (my underlining to emphasise).
It is clear from the words emphasized above that the member, in a sense invited by the applicant’s review application, considered it appropriate to mention both anti-Chinese and anti-Christian actions.
It is also clear from the findings that the member regarded the applicant as claiming to be “of native Indonesian ethnicity and not Chinese (as the majority of Christians in Indonesia are)”.It is this finding of fact which the applicant relies upon to found his contention that the Tribunal failed to correctly characterise the applicant’s claim and therefore fell into jurisdictional error.
Analysis and discussion
The Applicant’s written submissions, and accompanying oral submissions from his counsel, Mr Jenkins, contends that, inter alia:
“The Tribunal failed to decide a question put to it by the Applicant’s Application, that is, whether the applicant was a member of a social group consisting of ethnic Chinese Christians who had been subject to anti-Chinese/anti-Christian violence.”
In my view it is for the Applicant to persuade me, on the balance of probabilities, that in his Application for a protection visa he claimed to be an ethnic Chinese Christian of Indonesian citizenship. Normally in these matters this would be an issue easily disposed of as the application, at least, would be available and would speak for itself. Furthermore, if there was an error in the application, then he could have taken up the invitation (which he accepted) to attend the hearing before the Tribunal.
The evidence of the Applicant under cross-examination was in my view vague and at times unconvincing. It is entirely consistent with his evidence that he at all times regarded himself without doubt as a “Chinese Christian Indonesian”. However, I am not satisfied on the whole of the evidence that even if he told Ms Wong and/or her staff of his claim, that it was incorporated in his claim for a protection visa. Remarks of the delegate in the draft decision perhaps of themselves carry little weight. However the clear statements by the member, who also had the Department file, that the claim of the Applicant was of Indonesian ethnicity, carries in my view significant weight.
A court should not start from a position that such a clear and unambiguous statement in the member’s reasons is contrary to a clear statement in the Application. It could only be based on the file, the original Application, and the review Application. The assertion by the Applicant in the review application before the Tribunal, of a fear that “the anti-Chinese violence will occur again” could not reasonably be regarded as support of an alleged asserted claim of Chinese ethnicity. It is broadly a further claim of the instability of the “social and economic situation in Indonesia” as claimed by the applicant.
The Applicant has not satisfied me that his protection claim asserted that he was an ethnic Chinese person. Accordingly it could not amount to jurisdictional error for the Tribunal not to consider a claim of Chinese ethnicity which was never made. The basis on which the member concluded that the Applicant, regarded by the Tribunal was a Christian Indonesian, had not satisfied it that he had a well-founded fear of persecution because of his religion was open to the member on the evidence.
I am not required to consider the second argument of the respondent that the application be dismissed for delay. If the applicant had been successful in establishing jurisdictional error, a court should be very cautious in my view in then dismissing the application when a plausible explanation for delay is at least offered, as it was in this case by the applicant.
For the reasons I have given I am bound by law to dismiss the application which I do. I will make the usual order for costs, that is that the applicant pay a contribution to the costs of the first respondent fixed in the sum of $5000 within 90 days.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Baumann FM
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