SZHVO v Minister for Immigration and Citizenship

[2008] FCA 808

FEDERAL COURT OF AUSTRALIA

SZHVO v Minister for Immigration and Citizenship [2008] FCA 808

SZHVO v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 13 OF 2008

DOWSETT J
12 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 13 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZHVO
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWSETT J
DATE OF ORDER:	12 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.the appeal be dismissed; and

2.the appellant pay the first respondent’s costs of the appeal, fixed in the sum of $3,000.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 13 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZHVO
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWSETT J
DATE:	12 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of Indonesia who arrived in Australia on 27 July 1997.  On 9 September 1997 he lodged an application for a protection visa.  A delegate of the Minister declined the application.  The appellant applied to the Refugee Review Tribunal for review of that decision.  That application was unsuccessful.  The appellant was notified of the decision on 26 October 2000.  On 15 December 2005 he applied to the Federal Magistrates Court for review of that decision.  On 18 December 2007 that application for review was dismissed.  This is an appeal from that decision. 

2. At the outset, I must say that the reasons of the Refugee Review Tribunal are particularly brief.  I do not criticize them on that ground alone.  However, in order that the magistrate could give a reasonable account of the decision, it was necessary that he make reference to the transcript of proceedings in the Tribunal.  This is an unsatisfactory position.  It creates risk of the perception that the decision on the merits is the magistrate’s, based upon his or her view of the evidence, rather than that of the Tribunal which is, of course, the body entrusted by statute with that decision-making responsibility.  On the other hand, it is appropriate for a reviewing court to have regard to the transcript of proceedings before the relevant tribunal in order to identify the range of issues which were in contest between the parties or, more accurately in the case of this Tribunal, to identify the way in which the applicant put the case.  The latter course was that adopted by the magistrate in this case.

3. In the end, the issues between the parties upon which the Tribunal made its decision were quite narrow.  To some extent, that may explain the brevity of the Tribunal’s reasons.  The appellant’s case has not always been clearly stated.  There seem to have been two themes, the first being fear of persecution for religious reasons, and the second being fear of persecution for reason of political belief. 

4. In October 1996 there were religious riots in Situbondo in East Java where the appellant was teaching in an Islamic school.  As the result of an unsuccessful prosecution for blaspheming and insulting the prophet Mohammed, the Muslim population – or part of it – rioted, causing damage to Christian churches.  The appellant denied any involvement in such riots and said that his approach as a teacher was always to encourage understanding of other people’s beliefs.  He understood the riots to have been provoked by government action.  However members of the Muslim population were blamed, he being one of them.  He was arrested and detained for about two weeks but released after signing a statement of apology to, and sympathy for, the innocent victims of the violence. 

5. The appellant had also been politically active in opposition to the Golkar party which supported former President Suharto.  In early 1997, teachers and students at the school at which the appellant taught became active in opposition to the re-election of President Suharto in an election scheduled for 1998.  Following a general election in May 1997, many of their leaders were arrested or went missing.  Some, including the appellant, as he claims, were detained.  His family and friends were worried about him.  At some stage, he was released.  He re-located to a village called Mandura in order to avoid any further unfavourable attention from his political enemies.  He claims that as a result of his parents paying substantial amounts, he was eventually able to leave the country on 27 August 1997. 

6. Although the Golkar party lost the 1997 election, the appellant asserts that in his area of the country, Situbondo, supporters of the Golkar party remain.  He says that he has been told by his parents that one member of the police force is still looking for him.  In the course of his oral evidence in the Tribunal he said that in June 1997 a warrant was issued for his arrest because he was an anti-Golkar activist.  He subsequently suggested that it had been issued on 24 July.  There is such a warrant, or a translation of such a warrant, in the material.  It was said to have been issued in order to investigate a crime of which the appellant was suspected, namely the, “Incident of 10^th October 1996” presumably a reference to the religious riots.

7. He said that when this warrant was issued he went to Madura.  While he was in Madura, people approached his relations in Situbondo, trying to locate him.  He told me that a government official also came to Madura looking for him.  Although it is not entirely clear whether that was said in the Tribunal, it may have been.  In the course of the hearing in the Tribunal the appellant asked for an adjournment to produce a letter from the Court.  That turned out to be a document which was translated as a decision of an Indonesian Court finding that he:

   1.Has been proven to have held illegal meetings without the permission of the police or the responsible institutions in Indonesia.

   2.Has contravened the 1945 Constitution.

   3.Aims to overthrow the legal Government.

   4.Possesses a pistol and sharp weapons and the like.

   5.Has stirred up and made propaganda to divide the unity of the nation and people of Indonesia.

   6.Has harmed the economy of Indonesia.

   7.Has been involved with Islamic Militant members and has destroyed places of prayer (churches) and has obstructed [sic] the cause of Political Parties of an Islamic militant nature.

   The document asserted that he had been sentenced to ten years’ imprisonment and fined. 

8. There seems to be inconsistency inherent in alleging involvement in the activities of an Islamic militant organisation and obstructing the cause of political parties of an Islamic militant nature.  In any event the Tribunal was unpersuaded as to the authenticity of that document and no basis has been demonstrated for upsetting that decision. 

9. The Tribunal rejected the appellant’s application for review.  It was obviously not persuaded as to his reliability as a witness.  It said:

   I did not find the applicant to be a convincing or impressive witness.  He was generally evasive and seemed ready to alter his evidence to accommodate anything put to him.

10. However the Tribunal appears to have accepted his evidence as to the circumstances of the 1996 religious riots, that he was arrested and that he apologised to the members of those churches which were damaged.  It noted his evidence concerning the warrant for his arrest in 1997 which, as he claimed,  had been politically motivated, but it said nothing about whether or not it accepted that evidence.  It was not satisfied that he had been wrongly convicted of charges because of his religious and political convictions and, as I have said, it was not convinced as to the authenticity of the court judgment.  The Tribunal also noted that the applicant’s political problems had been experienced at the hands of the Golkar party which had since lost power.  The Tribunal noted that the applicant asserted that the Golkar party still controlled his local area.  However it considered that he had failed to provide any convincing or coherent reason why such persons would pursue him if he moved to another part of Indonesia.  It also considered that there was no evidence that any such pursuit would be successful.  As a result it was not satisfied that it would be unreasonable for him to relocate within Indonesia, or that he would be at risk of persecution should he relocate.  The Tribunal concluded that it was not satisfied that he had a well-founded fear of persecution. 

11. The federal magistrate identified two potential factual errors in the Tribunal’s reasons.  The first was that a significant aspect of the evidence given in the Tribunal concerned the question of whether or not the appellant had given evidence in the proceedings to which the court decision related.  This line of questioning was prompted by a statement in the decision that the Court had heard evidence from the plaintiff and the plaintiff’s witnesses.  The Tribunal seems to have assumed that this meant that the appellant had given evidence.  However the relevant prosecuting authority was the plaintiff.  The appellant was the defendant.  Nonetheless, the appellant agreed that he had given evidence.  This caused some difficulty for him because of inconsistency with various dates.  I need not go into detail but, as the magistrate pointed out, although the line of inquiry may have been prompted by a misunderstanding of the court decision, the appellant conceded that he had given evidence.  The various inconsistencies were therefore real and relevant. 

12. The magistrate also referred to the following passage in the Tribunal’s reasons:

    His problems following the riots seemed to have been solved.  He was released on condition that he apologise.  His problems with Golkar should not be insurmountable following Golkar’s defeat.

13. The magistrate observed:

    I think, with respect to the Tribunal, that it may well have missed the point in this finding.  True it is that the applicant was released following the riots but then he claims he was arrested again and was the subject of the charge.  It would also appear that the Tribunal did not deal with the question of the applicant’s return to his own city because it was satisfied that he could relocate.

14. I am not entirely sure that the Tribunal was, in fact, in error.  It may be that it simply conflated the two grounds.  However the magistrate was correct in observing that the matter had, in any event, been disposed of upon the basis of relocation.

15. As I have observed, the appellant appears to have claimed fear of persecution for both religious and political reasons.  However there appears to have been no complaint about religious persecution other than in connection with the events which occurred in 1996.  Assuming that the attribution to the Muslim community of blame for the riots may constitute persecution for reason of religion, the matter seems to have been resolved at that time.  It is true that the 1997 warrant referred to the 1996 events, but the appellant attributed the issue of the warrant to political motivation, not religious motivation.  Notwithstanding his claim to fear religious persecution, it would be very difficult for him to make it out. 

16. In any event, and whatever his fears, the Tribunal’s decision appears to have been based upon the possibility of his relocating.  It is particularly unfortunate that the Tribunal did not pay a little more attention to outlining its understanding of what he could do in order to avoid feared persecution.  However the brevity of the Tribunal’s reasons probably reflected the very specific nature of the appellant’s claims.  As I have observed, his family had told him that there was one policeman who was actually pursing him.  This, of itself, substantially weakened his case.  The appellant said that the policeman had many supporters.  That may be true.  The case must, nonetheless, be seen in that light.  It seems also to have weighed heavily with the Tribunal that the Golkar party had lost the election and was no longer in power.  All of this must be seen in the context of a hearing, which occurred in the year 2000, relating to events which had occurred in 1996 and 1997.

17. It seems that the Tribunal was unpersuaded that a person whose activities had been of the kind described by the appellant would be pursued were he simply to move away from his previous location.  I find myself unable to disagree with the logic of that proposition.  In the circumstances, I cannot see that the magistrate erred in upholding the Tribunal’s decision.  The appellant’s other submissions went to the merits of his claim.

18. The appeal should be dismissed.  I order that the appellant pay the respondent’s costs fixed in the sum of $3000.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:        29 May 2008

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the First Respondent:	Ms L Klegg
Solicitor for the First Respondent:	Sparke Helmore
Counsel for the Second Respondent:	The Second Respondent did not appear

Date of Hearing:	12 May 2008
Date of Judgment:	12 May 2008