SZIML v Minister for Immigration and Citizenship

[2007] FCA 1641

FEDERAL COURT OF AUSTRALIA

SZIML v Minister for Immigration and Citizenship [2007] FCA 1641

SZIML v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1511 OF 2007

MIDDLETON J
29 OCTOBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1511 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIML
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MIDDLETON J
DATE OF ORDER:	29 OCTOBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.  The appeal be dismissed with costs.

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 1511 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIML
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MIDDLETON J
DATE:	29 OCTOBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BACKGROUND

1. This is an appeal against a judgment of a Federal Magistrate of 16 July 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) signed on 7 January 2007 and handed down on 25 January 2007. 

2. The appellant is a citizen of Indonesia who arrived in Australia on 25 August 2005.  The appellant lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs (as it was then known) and a delegate of the first respondent refused the application on 23 September 2005.  On 18 November 2005 the appellant applied to the Tribunal for a review of that decision, and on 18 January 2006 the Tribunal affirmed the delegate’s decision not to grant a protection visa. The applicant then made an application in the Federal Magistrates Court for judicial review of the Tribunal’s decision, as a result of which the matter was remitted to the Tribunal for redetermination. The Tribunal, differently constituted, affirmed the delegate’s decision. The applicant then applied to the Federal Magistrates Court for judicial review of the Tribunal’s second decision, which application was dismissed on 16 July 2007. It is that decision which is the subject of the current appeal.

   THE TRIBUNAL’S DECISION

3. In her application for a protection visa, the appellant claimed to have well-founded fear of persecution based on her Chinese ethnicity, her Catholic religion and her gender.  The appellant claimed that her house-shop in Jakarta had been looted and burned.  The appellant also claimed that while living in Jakarta she had been sexually harassed and her female friends had been raped, and she feared being forced into prostitution or marriage with a Muslim.   The appellant claimed that during riots in 1998 or 1999 she had seen people behind a mosque near her house with knives shouting words to the effect ‘burn the mosques, kill the Chinese’.  The appellant and her family hid from the rioters and she fears the mob may kill her if she returns to Indonesia.  The appellant claimed the mob had painted ‘Pribumi Muslim, kill Chinese’ on every corner and that rumours of ‘ethnic cleansing’ had terrified everyone.  The appellant also claimed that unless her and her husband paid a ‘security bond’ every day to ‘local gangsters,’ and to police and other authorities, she would be threatened. 

4. The Tribunal accepted the claims of the appellant but was not satisfied that the appellant had a well-founded fear of persecution. Independent country information showed that threats of violence to Chinese minorities had reduced sharply due to the rise of democracy in Indonesia. The Tribunal also found that, given her husband’s ability to carry on a successful business in Indonesia, the problems they encountered did not amount to persecution involving ‘serious harm’ under s 91R(1)(b) of the Migration Act 1958 (Cth) (‘the Act’).

5. In relation to the appellant’s religion, the Tribunal noted that authorities had increased security to ward off threats of terrorist attacks on churches, and therefore found that there was no longer a real chance the appellant would be persecuted for practising her religion.

6. In relation to the appellant’s claims of ‘gender based racial harassment’ the Tribunal also found there was not a real chance that the appellant would be targeted for forced prostitution or marriage, and that the harassment did not constitute ‘serious harm’ under the Act. The Tribunal did not accept that the appellant had a genuine fear of being sexually assaulted.

   THE FEDERAL MAGISTRATE’S DECISION

7. On 26 February 2007 the appellant sought judicial review in the Federal Magistrates Court.  Before the Federal Magistrate the appellant raised only one substantive ground in her amended application:  failure to adequately consider that the appellant would be put into danger if returned to Indonesia.  The remainder of the grounds are a reassertion of the appellant’s factual claims.

8. It was unclear to the Federal Magistrate whether the appellant sought to allege that the Tribunal failed to take into account matters relating to her fear of persecution or whether she was simply reasserting those matters.  The Federal Magistrate noted that the appellant failed to make any submissions, declining to say anything at all.

9. The Federal Magistrate then addressed each of the factual matters raised in the appellant’s grounds, and found that the Tribunal considered in detail each of the appellant’s claims and that the Tribunal’s findings were open on the evidence and material before it.

10. The Federal Magistrate found no jurisdictional error and dismissed the appeal.

    GROUNDS OF APPEAL

11. In the notice of appeal filed on 3 August 2007 in this Court, the appellant raised three grounds of appeal: that the Tribunal failed to consider adequately the appellant’s claims relating to her racial discrimination, that the Tribunal was or appeared biased, and that the Tribunal acted improperly in the exercise of its statutory powers.  None of these grounds appeared to have been argued before the Federal Magistrates Court.

12. At the hearing of the appeal before me the appellant made no further submissions. 

13. The Minister contends that leave should not be granted to the appellant to raise these new grounds.  No explanation for their not having been raised below has been provided.

14. In any event, it was contended by the Minister that each of the new grounds has no merit.  I agree.

15. The first ground asserts that the Tribunal failed to adequately take into consideration her claims that she and her family had been discriminated against in the past by the local Indonesians by reason of their race.

16. These claims were expressly dealt with by the Tribunal.

17. The second ground of appeal alleges bias.  No basis for any such claim is suggested and nothing arises from the material before me to support such a claim.

18. The third ground alleges an improper exercise of power but no particulars of such a ground are provided, and I can see no basis on the materials before me for finding any improper exercise of power on the part of the Tribunal.

19. In my opinion, the approach of the Federal Magistrate and her Honour's conclusion were correct and no jurisdictional error was shown to have occurred. 

20. Accordingly, the appeal should be dismissed.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

Associate:

Dated:        31 October 2007

Counsel for the Appellant:	Self-represented
Counsel for the First Respondent:	S. Lloyd
Solicitor for the First Respondent:	Blake Dawson Waldron
Date of Hearing:	29 October 2007
Date of Judgment:	29 October 2007