SZHYD v Minister for Immigration
[2007] FMCA 333
•15 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHYD & ORS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 333 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicants claiming religious persecution in Indonesia – whether the Tribunal properly dealt with the issue of relocation considered – no reviewable error found – application dismissed. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.424A Migration Litigation (Reform) Act 2005 (Cth) |
| Re Minister for Immigration; Ex parte Applicant S154/2002 (2003) 201 ALR 437 |
| First Applicant: | SZHYD |
| Second Applicant: | SZHYE |
| Third Applicant: | SZHYF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3803 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 15 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 15 March 2007 |
REPRESENTATION
The Applicants appeared in person
| Counsel for the Respondents: | Mr P Carr |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The Court directs that the title of the first respondent be amended to the Minister for Immigration and Citizenship.
For the purposes of Part 11 of the Federal Magistrates Court Rules 2001 (Cth), SZHYD is appointed litigation guardian of SZHYF and SZHYD is relieved of the obligation of filing an affidavit of consent or of notifying the respondents of her appointment.
The Court directs that the names of the applicants are not to appear on the transcript of proceeding.
The application is dismissed.
The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3803 of 2005
| SZHYD |
First Applicant
SZHYE
Second Applicant
SZHYF
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 13 June 2001. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicants protection visas. There are three applicants, a mother and two children. The second applicant, the applicant son, is now an adult. The third applicant, the applicant daughter, is currently aged 16. I appointed the applicant mother the litigation guardian for the third applicant with the mother’s consent.
The applicants are from Indonesia and have made claims of religious persecution. The background facts relating to the applicant’s protection visa claims and the Tribunal’s decision on them are set out in the Minister’s written submissions filed on 9 March 2007. I adopt as background for the purposes of this judgment, with necessary amendments, paragraph 2 to 22 of those written submissions:
The applicants are all citizens of Indonesia[1] who arrived in Australia on 28 May 2000[2].
[1] court book (CB) 106.
[2] CB104.
On 13 June 2000 the Applicants lodged applications for protection visas[3].
[3] CB104.
On 20 June 2000 a delegate of the Minister for Immigration and Multicultural Affairs refused to grant the protection visas[4].
[4] CB45-54.
On 21 July 2000 the applicants applied for review of the delegate’s decision[5].
[5] CB56-59.
On 1 March 2001 the Tribunal wrote to the applicants inviting them to attend the hearing on 4 May 2001[6].
[6] CB90.
8 March 2001 the Tribunal received the applicants’ response to the hearing invitation[7].
[7] CB95.
Subsequent to the appointment of the hearing the applicants appointed an authorised migration agent[8].
[8] CB98.
On 4 May 2001 the Tribunal conducted a hearing where Erik Ijahaja represented the Applicants[9].
[9] CB104.
On 23 May 2001 the Tribunal affirmed the delegate’s decision[10].
[10] CB103.
On 13 June 2001 the Tribunal handed down its decision[11].
[11] CB100.
On 22 December 2005 the applicants filed an application under the Migration Act 1958 (Cth) (“the Migration Act”)[12].
[12] See application under Migration Act filed 22 December 2005.
The Tribunal’s decision
On 1 March 2001 the Tribunal enclosed with its hearing invitation information regarding the situation of Christians in Indonesia, which the Tribunal may rely upon in reaching its decision. The material identified was relevant to the possibility of relocation in an area in Indonesia without a history of anti-Christian disturbances such as Bali[13].
The Tribunal accepted that a Christian living in Ambon might face a real chance of harm amounting to persecution[14].
The Tribunal also accepted there had been serious and ongoing religious violence in Ambon in which many Christians had been killed[15].
The Tribunal also accepted that in April 1999 the applicant mother left Ambon because of the situation there and returned to Jakarta[16].
The Tribunal also accepted that if the applicant mother were to return to Ambon she might suffer real difficulties by reason of her religion. However the Tribunal also noted that it had to consider the situation in relation to Indonesia as a whole and whether the applicant mother was at a continuing risk of persecution in Indonesia generally rather than in a particular part of the country[17].
The Tribunal was not satisfied that there was a real chance that on return to Jakarta the applicant mother would be persecuted by reason of their religion and would be unable to secure reasonably available protection by the authorities[18].
The Tribunal noted and put to the applicant mother at the hearing that although it might not be safe for her to return to Ambon she could return to live in Jakarta.
The Tribunal also raised with the applicants in its letter of 24 January 2001 (an earlier invitation to the same Tribunal hearing) the possibility of relocation to an area of Indonesia such as Bali[19].
After noting that the applicant mother had previously lived and worked in Jakarta in 1999 without any apparent difficulty the Tribunal was satisfied that it was reasonable for the applicant to avoid the unsettled situation in Ambon by living in Jakarta.
The Tribunal went on to consider the situation elsewhere in Indonesia. The Tribunal noted the practical difficulties accompanying any relocation were mitigated by the absence of a language barrier, the applicant mother’s possession of professional nursing qualifications and extensive nursing experience and the presence of an existing Christian community in Bali where the majority were non-Muslim[20]. The Tribunal was therefore satisfied that the applicant mother could avoid any perceived difficulties in Jakarta by relocating to live in Bali.
[13] CB90.
[14] CB110.6.
[15] CB110.8.
[16] CB110.
[17] CB110.
[18] CB112.
[19] CB112. The letter is reproduced at CB62-63
[20] CB 113.
The applicants rely on their show cause application filed on 22 December 2005. The applicants assert notification of the Tribunal decision on 13 June 2001. Pursuant to item 42 of schedule 1 to the Migration Litigation (Reform) Act 2005 (Cth) the applicants are taken to have been actually notified of the Tribunal decision on 1 December 2005. Accordingly, I find that the application was filed within time. The application was listed for a final hearing by a registrar of the Court.
The application sets out four grounds of review. These are accurately set out in paragraph 23 of the Minister’s submissions which I adopt for the purposes of this judgment:
In the application the following grounds are identified:
(1)The applicants were not given a chance to answer questions about relocating to other areas in Indonesia.
(2)The applicants were not given the chance to answer questions about the protection given by the Indonesian government to Christians.
(3)The applicants were not given a chance to answer questions about protection of Christians in other parts of Indonesia.
(4)The applicants were not given a fair opportunity at the hearing.
I invited oral submissions from the applicants and from Mr Carr, for the Minister. On the basis of those submissions and the available material I accept the Minister’s submissions concerning procedural fairness.
The first applicant does not dispute that at the Tribunal hearing she was asked questions about relocating within Indonesia. It is clear from the record of the Tribunal decision that issues about harm experienced by Indonesian Christians or threatening against them was also discussed. I reject the assertion that the applicants were not given a fair opportunity at the hearing. There is no persuasive evidence of a want of procedural fairness under the general law. I agree with and adopt paragraphs 24 to 28 of the Minister’s written submissions:
The applicants assert they were not given the opportunity to answer questions about relocating, effective state protection and a fair opportunity at the hearing.
The applicants were properly put on notice of the following issues at the hearing:
· The possibility of relocating away from Ambon having regard to the fact that the applicant mother had already lived in Jakarta[21].
· Relocating elsewhere in Indonesia including Bali[22].
· The situation of Christians in Indonesia and that Indonesian authorities offered reasonable protection[23].
In addition to the matters identified above, the Tribunal also enclosed for the applicants’ consideration country information relevant to Christians in Indonesia and the possibility of relocating within that country[24].
The Tribunal put to the applicants key factors and critical issues on which the decision was ultimately based. The Tribunal was not obliged to put to the applicants the conclusions drawn from those facts or its reasoning[25].
The Tribunal complied with the relevant procedural requirements by conducting a hearing at which the applicant mother gave evidence, made submissions about her claims and was afforded the opportunity to respond to matters the Tribunal raised with the applicant mother about Christians in Indonesia and relocation.
[21] CB 110.
[22] CB 110.
[23] CB 109.
[24] CB 93.
[25] Re Minister for Immigration; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [54] per Gummow and Heydon JJ and at [85]-[86] per Kirby J.
Although no breach of s.424A of the Migration Act is asserted by the applicants the Minister’s submissions also deal briefly with that issue. I agree with those submissions that the Tribunal decision turned on information given by the first applicant to the Tribunal at the hearing conducted by it. Accordingly, no issue of a breach of s.424A(1) arises.
The remaining issue is whether the Tribunal met its legal obligations in considering the issue of relocation. The Tribunal accepted the first applicant’s factual assertions about harm she had experienced on the island of Ambon. The Tribunal must be taken to have accepted that the first applicant and through her, her children had a well-founded fear of persecution should they return to Ambon. The issue of whether Australia owed protection obligations to the applicants therefore turned on the question of relocation within Indonesia. In considering that question the Tribunal took into account country information as well as information provided by the first applicant at the Tribunal hearing. The Tribunal also considered practical difficulties that might be experienced by the first applicant. The Tribunal concluded that there was no language barrier and that the applicant possessed a readily transportable skill as a nurse.
The Tribunal found that the applicants could relocate safely to Jakarta where the first applicant had lived and worked previously. The Tribunal also found that if the applicant did not wish to live in Jakarta she and her children could relocate to Bali. The first applicant points out that the Tribunal decision was made prior to the bombings in Bali in October 2002. She maintains that she is afraid to return to any part of Indonesia. Those are matters that might properly be taken into account by the Minister should he be willing to entertain an application for ministerial intervention. That is beyond the scope of this proceeding. In my view the Tribunal did not fall into jurisdictional error in considering the issue of relocation.
I find that the Tribunal decision is free from jurisdictional error. It is, therefore, a privative clause decision and the application must be dismissed. I so order.
I will also direct that the title of the Minister be amended to the Minister for Immigration and Citizenship.
Costs should follow the event in this case. The Minister seeks an order for costs fixed in the sum of $5,000. That is the amount prescribed under the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) for a migration hearing at a final hearing. The Minister seeks as costs order against the first and second applicants only. The first and second applicants asked questions about payment of costs and liability as between the first two applicants but they did not otherwise seek to be heard. I accept that costs of not less than $5,000 have been properly and reasonably incurred on behalf of the Minister.
I will order that the first and second applicants pay the Minister’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of Part 2 to schedule 1 to the Federal Magistrates Court Rules.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 21 March 2007
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