SZIML v Minister for Immigration
[2007] FMCA 1126
•16 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIML v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1126 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal properly considered the applicant’s claims. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91R(1)(b); 91S; 474; pt.8 div.2 |
| Applicant: | SZIML |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG663 of 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 16 July 2007 |
| Date of last submission: | 16 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 16 July 2007 |
REPRESENTATION
| Applicant appearing on her own behalf |
| Counsel for the Respondent: | Mr S. Lloyd |
| Solicitors for the Respondent: | Mr I. Muthalib, Blake Dawson Waldron |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG663 of 2007
| SZIML |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 7 January 2007 and handed down on 25 January 2007.
The Applicant was born on 23 February 1966 and claims to be from Indonesia and of Chinese ethnicity and Catholic faith (“the Applicant”).
On 25 August 2005, the Applicant arrived in Australia, having legally departed from Indonesia on a passport issued in her own name and a visa issued on 12 August 2005.
On 30 September 2005, 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.
In her protection visa application, the Applicant claimed that she feared persecution due to her Chinese ethnicity and Christian religion. The Applicant claimed that her “house in Jakarta had been looted and burnt down to ashes” and that she was “often sexually harassed by the native Indonesian men at work and in the neighbourhood.” The Applicant claimed that there was no security for her in Indonesia and she referred to riots that took place in Jakarta in May 1998 where she claimed that buildings and shops owned by ethnic Chinese Indonesians were burnt and looted. The Applicant further claimed that there was rising tension between Muslims and Christians and that she was afraid that she may be killed if she were to return to Indonesia by the “mob” who painted “Pribumi Muslim, Kill Chinese” on road corners in Jakarta. The Applicant further claimed that there was a rumour of “ethnic cleansing” of Chinese ethnic people in Indonesia and that the authorities had not provided any protection.
On 23 September 2005, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 18 November 2005, the Applicant lodged an application for review of the Delegate’s decision by an earlier constituted Refugee Review Tribunal. The Applicant provided no further material in support of the review application. On 18 January 2006, the earlier constituted Refugee Review Tribunal affirmed the decision of the Delegate not to grant a protection visa.
The Applicant sought judicial review of that decision in this Court and, on 14 September 2006, the matter was remitted to the Refugee Review Tribunal for redetermination according to law.
On 25 January 2007, the Tribunal, differently constituted, affirmed the decision of the Delegate not to grant a protection visa. This is the decision currently under review.
On 26 February 2007, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceeding
On 19 October 2006, the Tribunal wrote to the Applicant, advising the Applicant that her matter had been remitted to the Tribunal and inviting the Applicant to provide any documents or written arguments, that she had not already provided to the Tribunal and that she wished the Tribunal to consider.
On 25 October 2006, the Tribunal invited the Applicant to come to a hearing on 29 November 2006. The Applicant attended that hearing and gave oral evidence, as well as providing further documents, including originals or copies of the documents in Indonesian which she had previously provided translations of and newspaper reports showing attacks on the Church of St Joseph in Pemangkat.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and the earlier constituted Refugee Review Tribunal’s file.
The Applicant gave oral evidence before the Tribunal in which the Applicant expanded upon her written claims. The Applicant claimed a fear of persecution by reason of her Chinese ethnicity, her Catholic religion, her membership of a particular social group and combinations of all. Whilst the Tribunal largely accepted her factual assertions, it did not accept that she had a well founded fear of persecution for a Convention related reason. The Tribunal had particular regard to independent country information that suggested that there is no targeting for persecution in Indonesia of ethnic Chinese or Christians and that the Indonesian government promoted racial and ethnic tolerance. It also found that there was no discrimination or harassment amounting to serious harm, as required by s.91R of the Act, by reason of membership of particular social groups that encompassed the Applicant’s claims, in particular, “gender based racial harassment”.
The decision of the Tribunal is accurately summarised by the First Respondent in his written submissions as follows:
“10.On 25 January 2007, the Tribunal (differently constituted) affirmed the decision not to grant a protection visa. It made the following significant findings:
a)Much has changed in Indonesia since the 1998 riots in Jakarta. Indonesia is now a democracy and there is no suggestion in the country information that the Indonesian Government is behind any inter-ethnic violence.
b)The Tribunal found it difficult to accept that the harassment the applicant claims to have suffered in Singkawang were for reasons of her race given that the area is 60 percent ethnic Chinese.
c)Given the relative success of her and her husband’s business in Indonesia (which is continuing), the Tribunal did not accept that the problems that the applicant and her husband encountered as ethnic Chinese business-owners in running their business amounted to persecution involving ‘serious harm’ as required by s 91R(1)(b) of the Migration Act.
d)Evidence suggests that the ethnic Chinese in Kalimantan have not been targeted in the context of the violence between the Dayaks and Madurese.
e)The tribunal did not accept that there was a real chance that, if the applicant returned to her home in Singkawang now or in the reasonably foreseeable future, that she would be caught up in ethnic riots of the sort that occurred in Jakarta in 1998.
f)The Tribunal did not accept that any discrimination encountered by the ethnic Chinese community in Singkawang (where they are in a majority) is so serious or so detrimental in its effect as to amount to persecution involving ‘serious harm’ as required by s 91R(1)(b) of the Migration Act.
g)Evidence indicated that the Indonesian Government generally respects freedom of religion and that the Indonesian authorities would not fail to protect Christians who are threatened with violence.
h)The Tribunal did not accept that there is a real chance that the applicant will be persecuted for reasons of her religion or that, in particular, she will be prevented from practising her religion freely, if he returns to her home in Singkawang now or in the reasonably foreseeable future.
i)It was difficult to accept the applicant’s claim that she had been sexually harassed by native Indonesians, and that the fire which had destroyed her shop had been deliberately lit and that she was scared that her house would be similarly destroyed by fire.
j)The tribunal did not accept that the applicant genuinely believes that Mr Syafei was behind their shop being burned down, that this was an attempt to intimidate her so that she would marry him, or that her home too might be destroyed by fire.
k)The tribunal did not accept that there was a real chance that the applicant will be forced to marry a Muslim man because she is an ethnic Chinese or Christian woman.
l)There is not a real chance that the applicant will be targeted by people trafficking women for the purposes of prostitution in Singkawang.
m)The conduct which the applicant claimed amounted to sexual harassment by the native Indonesians was not sufficiently serious to amount to persecution involving ‘serious harm’ as required by s 91R(1)(b) of the Migration Act.
n)The Tribunal did not accept that the applicant genuinely fears that she will be sexually assaulted or otherwise persecuted for reasons of her race, religion, gender or a combination of these factors if she returns to Indonesia now or in the reasonably foreseeable future. This was in part premised upon the fact that the applicant had left her daughter in her home region and the mother did not believe that she was at risk of harm.
o)The Tribunal did not accept that, if the applicant returned to her home in Singkawang now or in the reasonably foreseeable future, there is a real chance that she will be persecuted for reasons of her race (ethnic Chinese), her religion (Catholic) or her membership of any particular social group such as women in Indonesia, ethnic Chinese women in Indonesia, Christian women in Indonesia or ethnic Chinese Christian women in Indonesia.”
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of an interpreter.
The Applicant confirmed that she relied upon the ground identified by her in the amended application filed on 11 May 2007. That ground is as follows:
“The decision did not take into account that the applicant, would be placed in danger if she returned to Indonesia.
I came to Australia to seek protection as my house in Jakarta had been looted and burned down in ashes.
Some of my female relatives living in Jakarta were raped by the local. I was often sexually harassed by the native Indonesian at work and in the neighbourhood.
Derogatory comments were often made by them towards the Chinese. Many Chinese people and non-Islam people were tortured before 1997, however at present time Islam people killed each other.
The problems seemed worse and worse with some rumours that the elite political ruler played an important role behind the massacre and ethnic tension.
I’m afraid to go back as the possibility of being killed by the mob. They painted “Pribumi Muslim kill Chinese” on every corners of the road in the district of Jakarta. Now I am begging to the authorised person, please let me come and stay in Australia for the rest of my life because concerns to my whole life and safety.”
The last four paragraphs of the ground referred to above are statements lifted verbatim from a statement provided by the Applicant in support of her application for review by the Refugee Review Tribunal and received on 18 November 2005.
It is unclear to me whether the Applicant is seeking to allege that the Tribunal failed to take into account those matters or whether they are simply matters identified by the Applicant to support the assertion made by her in the ground that she would be placed in danger if she were to return to Indonesia.
The Applicant was invited to make submissions in support of her application before this Court. However, the Applicant declined to say anything at all.
If the Applicant was intending to assert that the Tribunal did not take account of the assertions made by her in the statement received by the Refugee Review Tribunal 18 November 2005, then those assertions are dealt with below.
a) Applicant came to Australia to seek protection as her house in Jakarta had been looted and burnt down to ashes.
The Tribunal noted that the Applicant confirmed in oral evidence before it her claim that the shop she owned with her husband had been burnt down during the 1998 riots in Jakarta, prompting the Applicant and her family to move to SingKawang.
The Tribunal noted the Applicant’s evidence that their new shop in Singkawang was also burnt on 2004. Following this incident, she and her husband rented premises in Pemangkat, being only half an hour from where she and her family lived in Singkawang. The Tribunal noted that the Applicant confirmed that her husband and daughter continued to live in the same house in Singkawang. Further, the Tribunal noted that it put to the Applicant that, in those circumstances, “this made it a little difficult to accept that she had a real cause to fear for her safety”.
The Tribunal also noted that the Applicant agreed with independent country information that suggested that ethnic Chinese were not the specific target of any violence arising from the dispute between the Dyacs and Madurese in 1999.
The Tribunal noted independent country information that suggest that “racially-motivated attacks against ethnic Chinese Indonesians had dropped sharply since 1998 and that there had been no significant outbreaks of anti-Chinese rioting in any major city since Soeharto had fallen from power”. The Tribunal noted that the Applicant agreed there had not been any large scale riots against the Chinese but that there was “always discrimination”. The Tribunal put to the Applicant that her husband was now running a very successful business that enabled them to send their son to study in Australia.
The Tribunal also noted, in accordance with independent country information, that the Applicant agreed that Singkawang was around 60 percent ethnic Chinese.
The Tribunal also noted the Applicant’s agreement that there had been no large riots in Singkawang itself.
In accordance with independent country information, the Tribunal found that Indonesia is now a democracy and that there was no suggestion that the Indonesian Government is behind any inter-ethnic violence. The Tribunal found that racially motivated attacks against ethnic Chinese Indonesians had dropped sharply since 1998 and that there have been no significant outbreaks of anti-Chinese rioting in any major city since Soeharto fell from power.
The Tribunal found that whatever problems the Applicant and her husband may have encountered as ethnic Chinese small business owners in Singkawang or Pemangkat did not prevent them from running a “relatively successful business” that allowed them to send their son to study in Australia.
The Tribunal found that any such problems encountered did not amount to persecution involving “serious harm” as required by s.91R(1)(b) of the Act.
The Tribunal found the Indonesian Government officially promoted racial and ethnic tolerance and that the Indonesian authorities protected Christians who were threatened with violence.
The Tribunal found that there was not a real chance that if the Applicant returned to her home in Singkawang that she would be caught up in ethnic riots of the sort that occurred in Jakarta in May 1998 or that she would be prevented from practicing her religion freely now or in the foreseeable future.
It is clear that the Tribunal considered in detail the Applicant’s claims of a fear of persecution arising out of the looting and burning of her house in Jakarta in 2004.
Moreover, the Tribunal made findings of fact in respect of the Applicant’s claims that were open to it on the evidence and material before it and for which it provided reasons.
b) Applicant’s female relatives were raped in Jakarta and the Applicant was sexually harassed by a native Indonesian at work and in the neighbourhood.
The Tribunal accepted that the Applicant and her husband and children had moved to Singkawang in June 1998 after of the riots in Jakarta in May 1998 when their house and shop were set on fire. It was during these riots that women were raped. However, as referred to above in these reasons, having considered all of the evidence before it, the Tribunal found that the Applicant’s fear of persecution of events similar to the 1998 riots was not well founded based on the independent country information before it that there have been “no significant outbreaks of anti-Chinese rioting in any major city since Soeharto fell from power”.
The Tribunal rejected that the Applicant had a reasonable fear of sexual assault by reasons of her race, religion or gender or the combination of all those factors if she were to return to Indonesia now or in the reasonably foreseeable future. In support of that finding, the Tribunal found it significant that the Applicant did not believe that her daughter is at risk of being persecuted for those reasons in Singkawang as otherwise she would not have left her daughter behind when she came to Australia.
Whilst the Tribunal accepted that the Applicant may have been sexually harassed by native Indonesians by touching her on the shoulder and making inappropriate comments, the Tribunal found that such conduct was not sufficiently serious in itself to amount to persecution involving serious harm.
The Tribunal also considered the Applicant’s claim of a fear of persecution from a particular Muslim Indonesian native whom she alleged was responsible for burning her shop in 2004 as an attempt to intimidate the Applicant into marrying him. The Tribunal rejected the Applicant’s claim of a fear of this man in circumstances where she had left her daughter at the same address where she lived at the time her shop was burnt down in 2004.
The Tribunal found that there was no evidence to suggest that ethnic Chinese or Christian women were forced to marry Muslims and therefore found that there was not a real chance that the Applicant would be forced to marry a Muslim man because of her race or religion.
Although not the subject of a specific claim by the Applicant, the Tribunal considered and rejected that the Applicant was at risk of being involved in trafficking for the purposes of prostitution.
The Tribunal found that there was not a real chance that the Applicant would be persecuted if she were to return to Singkawang now or in the reasonably foreseeable future by reason of being a member of a particular social group of women in Indonesia, ethnic Chinese women in Indonesia, Christian women in Indonesia or ethnic Chinese Christian women in Indonesia.
It is clear that the Tribunal considered in detail the Applicant’s claims of a fear of persecution arising out of sexual harassment by native Indonesians or of a fear of a particular native Indonesian in her neighbourhood. The Tribunal also had regard to the raping that occurred in the 1998 riots.
The findings made by the Tribunal were opened to it on the evidence of the material before it and for which it provided reasons.
c) Derogatory remarks were often made by native Indonesians towards Chinese.
This assertion by the Applicant is dealt with above in these reasons where the Tribunal considered and rejected that the Applicant had been sexually harassed by native Indonesians involving serious harm in terms of s.91R(1)(b) of the Act.
d) Applicant fears possibility of being killed by the mob if she were to return to Indonesia.
This issue has been addressed above in these reasons.
The Tribunal found that there was not a real chance that the Applicant would be caught up in ethnic riots of the sort that occurred in Jakarta in 1998 if she were to return to Singkawang now or in the reasonably foreseeable future. The Tribunal also found that evidence before it indicated that Indonesian authorities would protect Christians threatened with violence.
A fair reading of the Tribunal’s decision makes it clear that the Tribunal considered in detail the Applicant’s claims of a fear of persecution arising out of being “killed by the mob” and rejected them, largely based in independent country information before it that did not support the Applicant’s claims that her fear was well founded.
As stated above in these reasons, the findings made by the Tribunal were open to it on the evidence of the material before it and for which it provided reasons.
Applicant’s claim that Tribunal did not take into account that she would be placed in danger if she were to return to Indonesia
If the Applicant is alleging in her ground in the amended application that the Tribunal did not consider that she would be placed in danger if she returned to Indonesia, a fair reading of the decision makes it clear that the Tribunal considered in great detail the claims made by the Applicant as they were developed before the Tribunal. The Tribunal made comprehensive findings of facts in respect of those claims and those findings were open to it on the evidence and material before it and for which it gave reasons.
Further, a fair reading makes clear that, based on those findings, the Tribunal rejected the Applicant’s claims of a well founded fair of persecution now or in the reasonable foreseeable future if she were to return to Singkawang for reasons of her Chinese race, her Catholic religion or her membership of particular social groups identified as women in Indonesia, ethnic Chinese women in Indonesia, Christian women in Indonesia or ethnic Chinese Christian women in Indonesia, for the purposed of the Convention.
The Tribunal’s conclusion that, based on the evidence and material before it, there is not a real chance that the Applicant will be persecuted for a Convention related reason if she were to return to Singkawang now or in the reasonably foreseeable future was a conclusion that was open to the Tribunal to make and for which it provided detailed and comprehensive reasons. Those findings and conclusions are dealt with in more detail above in these reasons.
Accordingly the ground identified by the Applicant in her amended Application is not made out.
Conclusion
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed with costs.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 16 July 2007
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