SZIUM v Minister for Immigration
[2006] FMCA 1645
•26 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIUM & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1645 |
| MIGRATION – RRT decision – Indonesian family of Catholic religion and Chinese ethnicity – long period of residence in Australia – fears of extortion by reason of perceived wealth – Tribunal did not fail to address claim of membership of particular social group – findings in relation to State protection did not reveal error – application dismissed. |
Migration Act 1958 (Cth), ss.48A, 474(1), 476, 476(1)
Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1, 78 ALJR 678
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
SZDWR & Anor v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 149 FCR 550
| First Applicant: | SZIUM |
| Second Applicant: | SZIUN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1308 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 26 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 26 October 2006 |
REPRESENTATION
| Counsel for the Applicants: | Ms V McWilliam |
| Counsel for the First Respondent: | Mr A Markus |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The second applicant must pay the first respondent’s costs in the sum of $4,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1308 of 2006
| SZIUM |
First Applicant
| SZIUN |
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 8 May 2006 under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 23 March 2006 and handed down on 4 April 2006. The Tribunal affirmed separate decisions of a delegate dated 12 December 2005 in relation to each of the applicants, which refused their applications for protection visas.
Under s.476(1) the Court has “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but its powers are confined by s.474(1) so that I do not have power to send the matter back to the Tribunal unless I am satisfied that its decision was affected by jurisdictional error. I do not have power myself to decide whether the applicants’ refugee claims should be accepted, nor whether they qualify for protection visas. I also do not have power to decide whether they should be allowed to stay in Australia for humanitarian reasons.
The two applicants are a father and his son, who are members of a family which includes the mother and a daughter. The family’s migration history dates back to 1993 when the mother commenced making a series of visits to Australia. From 1994, the father also made visits. They last arrived in Australia in 1997, and their son was born in Australia in January 1998. He was included in the wife’s Indonesian passport, but has never resided in Indonesia, which is the country of the nationality of all of the members of the family.
Separate applications for protection visas were made in 1998 by the wife, and in 1999 by the daughter. The husband and son were named as members of the family unit in the wife’s application, and it appears that they did not put forward separate refugee claims. In 2005 the family were taken into immigration detention, after they had exhausted all merits and judicial review avenues following the refusal of the protection visa applications of the wife and daughter. However, a decision was then made that, by reason of transitional provisions, the father and son were not prevented by the provisions of s.48A of the Migration Act from making second applications for protection visas.
Such applications were made on 11 November 2005. The application forms, which were completed without any apparent assistance, described the father’s concern:
40Why did you leave that country?
I left the country to join my wife who at the time was already living in Sydney.
In 1998 after my son, [name] was born, there were a lot of tension and political unrest that lead to riots targeting Chinese and Christian in Indonesia. I feared if my wife and I brought [my son] home to Indonesia it wouldn’t be safe.
Even more these days, after [my son] is 7 years old, all his life he has spent here in Australia, never know what life in Indonesia would be like. He doesn’t even speak the language. All he know about Indonesia is from the news on television where bombs explode every now and then and lots of innocent people died because of it.
…
42Who do you think may harm/mistreat you if you go back?
–Unemployed individual targeted who ever came from overseas
–Being Christian is an easy target and scapegoat from the majority Muslim in Indonesia whenever anything goes wrong
–The corrupt government official who will charge more fee for any transaction like application, whenever they see overseas born birth certificate
–Afraid can’t practise my religious belief peacefully
–Poverty and unemployment.
43Why do you think this will happen to you if you go back?
–Because people always think that whoever came and live from overseas they must be wealthy and have lots of money
–There has been proven time to time, how Christian being target. Either church being burnt or force to close, Christian being killed / persecuted
–The increasing number of un‑employment makes me worry especially over there, as it would be difficult for me to find employment because of my age. I am afraid it will be difficult for me to support my family and raise my children.
That application was withdrawn in favour of a second application, which was lodged on 29 November 2005 with the assistance of the Refugee Advice and Casework Service (Aust) Inc (“RACS”), but its contents were placed before the Tribunal.
The later application was supported by typed statements indicating the concerns of both the son and the father, if they were required to leave Australia and live in Indonesia. The son indicated concerns about harms arising from the ethnicity of his mother who is Chinese, and of himself being half Chinese. He expressed concerns about having to go to a special Catholic school, being ill treated by Muslim Indonesians, and being “picked on by other kids because I can’t speak Indonesian and I have a funny voice and also because I come from Australia”. The father expressed fears of harms because of his religion as a Catholic, and because of his relationship to a Chinese wife. There were also concerns by both family members as to hardships they would face in Indonesia compared with their life in Australia.
When the matter reached the Tribunal, the applicants attended a hearing to which they were invited on 28 February 2006. The Tribunal interviewed them and also the mother. Their advisor was present.
A transcript of the hearing is not in evidence, although the Tribunal makes some reference to what was said. Since the grounds of review which I will address concern only how the Tribunal dealt with one element in the claims by the father, it is unnecessary for me to further elaborate how the claims of the son were put to the Tribunal and dealt with by it.
The Tribunal summarised the evidence of the father:
The applicant essentially repeated the claims provided to the Department as summarised above. He stated he feared that he and his son risked harm in Indonesia because of their religion and ethnicity. He stated the government did not seek to protect Christians or ethnic Chinese in Indonesia. The applicant claimed that those communities were increasingly targeted by radical Muslims. He claimed that the Chinese community was also targeted by poor Indonesians because they were perceived to be wealthy.
The Tribunal discussed with the applicant his background. He stated he lived in Jakarta before he came to Australia. He was asked if he or members of his family were targeted by either Muslims or any other group/individual in Indonesia. The applicant stated they were not personally attacked or targeted but he feared that they may be in the future. He stated his sister’s husband was working in Bali and they had fears for his safety since the recent bombings. The applicant stated that bombs had exploded in churches and he feared that he and members of his family may suffer such an attack while participating in peaceful religious activities. He stated the violence and discrimination against Chinese Christians in Indonesia had gone from “bad to worse” in recent years.
There is no reference in the Tribunal’s description of the hearing to the applicant giving evidence of fears arising from perceptions related to his period of residence in Australia, but a submission presented after the hearing by RACS contained a reference to this. The submission contained separate discussion of “Fears relating to Chinese ethnicity” and “Fears relating to religion”. At the end of the discussion in relation to ethnicity, the submission said:
We note the Tribunal’s comments at the Hearing that recent government initiatives have seen an improvement in the situation for Chinese people. However, country information continues to suggest that despite such apparent attempts the government is unable to control the perpetrators of ethnic Chinese or Christian persecution (often inter‑linked). Nor has it removed the discriminatory laws and practices. We also note that it is in times of economic, civil or political unrest that anti‑Chinese sentiment is heightened. During the current period of economic hardship, where unemployment remains high, Indonesia is at a politically and economically sensitive time as the world turns its attention to Indonesia’s post‑disaster recovery as well as peace negotiations with Islamic and separatist groups. The devastation caused by the tsunami and recent economic depression and oil spikes, and the continuing widespread poverty and deprivation, have all deepened the resentment against Chinese who are perceived to enjoy relative wealth. If the Applicants returned after a long period in a Western country there is real chance that they would be perceived as being wealthy which would make them a particular target for attack. (emphasis added)
General country information concerning the situation of ethnic and religious minorities in Indonesia was referred to and extracted by the Tribunal. It indicated that this material was discussed with the applicants. This included a US Citizenship and Immigration Service Report, to which the Tribunal referred:
The Tribunal commented that the US Citizenship and Immigration Service examined whether the authorities were willing to protect minority groups such as ethnic Chinese and Christians in Jakarta, the city where [the applicant father] lived before and where he may live with his family in the future:
In regard to whether police and/or other government authorities in Indonesia have improved their efforts to protect Chinese Christians in Jakarta, Indonesia specialists at the U.S. Department of State and at Boston University both told the RIC in telephone interviews that the police in Jakarta have made a significant attempt over the past two years to improve protection of Chinese Christians in Jakarta. Both referenced past incidents in Jakarta involving Chinese Christians but stated that Chinese Christians in Jakarta are not affected necessarily by current violence against Christians elsewhere in Indonesia …
Indonesian police have greatly improved their efforts to protect ordinary citizens and have become more assertive in their efforts to curb activities of criminal gangs who operated under the garb of Islamist activists. He feels there is “discrimination” against Christians in Jakarta, but not “systematic persecution” and that the situation has “significantly improved” over the last year partly due to improvements in the Indonesian police force. The professor indicated that the situation in the Moluccas and Sulawesi, where there has been real ethno‑religious violence involving Muslims and Christians (although not typically Chinese Christians), is very different from the situation in Jakarta, and that he is not seeing systematized mistreatment of Chinese Christians in Jakarta (Professor 30 Oct 2003). (US Citizenship and Immigration Service 2003, Indonesia: Information on Attacks by Muslims Against a Chinese Christian Neighborhood in Jakarta in September 2002, and Police Protection of Chinese Christians in Jakarta, 14 November. – Accessed 2 December 2005).
Under the heading “Findings and Reasons”, the Tribunal summarised the claims of the father in a manner which was not criticised by counsel for the applicants:
[The applicant father] claims he will suffer circumstances amounting to persecution in Indonesia because he is a Catholic. He claims he will be targeted by indigenous Indonesians and other groups because his wife and children are ethnic Chinese. He claims there is no State protection for Catholics or ethnic Chinese in Indonesia and for that reason the authorities will not protect him or members of his family from the harm they anticipate. The applicant claims that violence, harassment, and discrimination against ethnic and religious minorities in Indonesia has increased in recent years and the government has not been able or willing to provide meaningful protection for those minority groups. He claims he will be denied employment and income earning opportunities in Indonesia, because of his religion and his wife’s ethnic background, and his family will be forced to live in poverty. [The applicant father] fears that “people” in Indonesia will assume he is wealthy (folio 4) and subject him to extortion because he has lived in Australia for many years. He fears that the government will not protect him and claims that rogue elements in government, particularly the military, will be the perpetrators of the persecution.(emphasis added)
The Tribunal then identified the fears of the claims of the son, and made general findings concerning the situation of Catholics and of ethnic Chinese, including:
The Tribunal has formed the view, after considering the above information from external sources, that violence against Catholics and ethnic Chinese [is] not widespread or common in Indonesia. [The applicant husband] and his wife lived in Jakarta before they came to Australia and may return there in the future. The Tribunal accepts information referred to above that ethnic Chinese Catholics in Jakarta are not targeted by either indigenous Indonesians, Muslims, rogue elements in government, or any other group or individual, because of religion or ethnic background. The Tribunal has noted that ethnic Chinese in Indonesia are perceived to be a wealthy group, and indeed many are wealthy relative to the entire population, and they have been the victims of crime because of their perceived wealth. The Tribunal finds however, that “government authorities in Indonesia have improved their efforts to protect Chinese Christians in Jakarta” and “the police in Jakarta have made a significant attempt over the past two years to improve protection of Chinese Christians in Jakarta”. The Tribunal also accepts the above information that the “Indonesian police have greatly improved their efforts to protect ordinary citizens and have become more assertive in their efforts to curb activities of criminal gangs who operated under the garb of Islamist activists” (US Citizenship and Immigration Service 2003, Indonesia: Information on Attacks by Muslims Against a Chinese Christian Neighborhood in Jakarta in September 2002, and Police Protection of Chinese Christians in Jakarta, 14 November).
…
The Tribunal accepts that discrimination against Christians and ethnic Chinese exists in Indonesia. However, it finds after considering the above information from external sources, regarding the circumstances of ethnic Chinese and Christians in Indonesia, that these minority groups are not subjected to discrimination amounting to persecution. The applicants claim they will suffer economic disadvantage in Indonesia and be denied access to services, opportunities, and protection, commonly available to indigenous Muslim Indonesians. However, the Tribunal is satisfied by evidence from external sources summarised above that the applicants will not be subjected to discrimination in Indonesia amounting to persecution for reasons of religion or race. The Tribunal finds that they will have the same economic opportunities, access to services, and protection, commonly available to all citizens of Indonesia.
The Tribunal then acknowledged that the father “may suffer hardship obtaining employment in Indonesia” but found that he would not be “denied employment or income earning opportunities because he is Catholic or because his wife is ethnic Chinese. The Tribunal is satisfied that he will have the same economic opportunities as other citizens of Indonesia”.
The Tribunal then addressed the fear of the applicant that he would be subject to extortion as a result of having lived in Australia for many years. The Tribunal’s discussion of this element in the applicant’s claims was:
The Tribunal has considered [the applicant father’s] fear that “people” in Indonesia will assume he is wealthy and subject him to extortion because he has lived in Australia for many years. He fears that the government will not protect him. He also fears that rogue elements in government, particularly the military, will be the perpetrators of the persecution. After considering the information from external sources summarised above, the Tribunal finds that the applicant will have access to meaningful protection by the State if he is the victim of crime or targeted for extortion. The Tribunal is satisfied that the authorities have greatly improved their ability to protect citizens living in Jakarta, as already indicated above, and it is satisfied that the applicant will have the same access to protection by the State as other citizens of Indonesia. The Tribunal has no meaningful evidence from the applicants to support the claim that they will attract the adverse interest of rogue elements in the military. The Tribunal finds that this claim is mere speculation.
This paragraph was the subject of the contentions of the applicants’ counsel that the Tribunal’s decision revealed jurisdictional error. I shall examine the arguments in this respect below.
The remainder of the Tribunal’s reasons addressed the claims of the son. The Tribunal was satisfied that the son would “not be discriminated against or otherwise harmed by the State or any other individual or group in Indonesia, to the extent amounting to persecution, because of his race and ethnic background”. It accepted he would suffer hardship from having to live in Indonesia, “a country foreign to him”, but it found “that any hardship he suffers will be hardship which any child suffers when they migrate to a new country”. The Tribunal was not satisfied that there was evidence to support his claim that he would “be discriminated against, harassed, differentially treated, and otherwise harmed, by indigenous Indonesians, Muslims, the State, and other children”. It said:
The applicant has stated that he identifies as an Australian. He claims that in Indonesia he will be ostracised and otherwise mistreated because he was born and raised in Australia. The Tribunal is not satisfied by the evidence that the applicant will be harmed by government or society in Indonesia because he was born and raised in Australia. The Tribunal accepts that other children may ostracise him for being different but finds that such ostracism will not amount to persecution. The Tribunal is satisfied that in time the applicant will assimilate into Indonesian society and be regarded an Indonesian.
No challenge is made before me to the comprehensive findings of the Tribunal in relation to the son.
The amended application which is relied upon has one ground of jurisdictional error:
The Tribunal constructively failed to exercise jurisdiction.
Particulars:
It failed to consider the claim that the applicant feared persecution for reason of his membership of a particular social group, namely, Indonesians who have lived overseas for many years.
A written submission by counsel, who also prepared the amended application pursuant to a referral under the free legal advice scheme, explained the ground by reference only to the Tribunal’s reasoning in relation to the father’s claim to fear extortion by reason of perceptions of wealth arising from his period of residence in Australia.
The submissions were:
Grounds of Review
6.The Tribunal’s error is revealed by its failure to make findings in respect of the following:
(a)whether Indonesians who have lived overseas for many years are part of an identifiable social group;
(b)whether applicant SZIUN feared he would be the victim of targeted extortion;
(c)whether the targeted extortion feared by applicant SZIUN amounted to persecution under the Convention;
(d)whether applicant SZIUN’s fear in relation to the targeted extortion was ‘well‑founded’.
7.The applicants submit that those findings were critical to answering the question whether applicant SZIUN had a well‑founded fear of persecution for a Convention reason, and because of that fear was unable or unwilling to avail himself of the protection of the State. The failure to address those factual matters amounts to jurisdictional error because it demonstrates a failure to properly address a claim by applicant SZIUN that was material to the Tribunal’s decision.
Failure to make findings
8.The relevant passage of the Tribunal’s statement is at RD 183, where the Tribunal sets out applicant SZIUN’s claim and then states:
‘After considering the information from external sources summarised above, the Tribunal finds that the applicant will have access to meaningful protection by the State if he is the victim of crime or targeted for extortion. The Tribunal is satisfied that the authorities have greatly improved their ability to protect citizens living in Jakarta, as already indicated above, and it is satisfied that the applicant will have the same access to protection by the State as other citizens of Indonesia.’
9.At no stage did the Tribunal address whether Indonesians who have lived overseas for many years are part of an identifiable social group. Further, the Tribunal did not make a finding as to whether it accepted that the applicant fears he will be the victim of targeted extortion by reason of the fact that he is presumed to be wealthy after living in Australia for many years.
10.Even if it is assumed that the Tribunal implicitly accepted such a social group exists, and that applicant SZIUN feared harm, the Tribunal failed to make a finding as to whether the targeted extortion of such a group could amount to persecution under the Convention relating to Refugees 1954, as amended by the 1967 Protocol, and within the parameters of s 91R of the Act.
11.The Tribunal did find that applicant SZIUN will have access to meaningful protection by the State if he is the victim of crime or targeted for extortion. However, it is not clear what question the Tribunal was addressing in making this finding. In Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 78 ALJR 678 (‘S152’), the majority discussed the relevance of State protection from persecution by non‑state agents in answering the ultimate question of whether an applicant had a well‑founded fear of persecution for a Convention reason, and whether as a result of that fear, an applicant is unable or unwilling to invoke the protection of the State. The majority stated (at [21]):
‘ … in a case of alleged persecution by non‑state agents, the willingness and ability of the state to discharge its obligation to protect its citizens may be relevant at three stages of the enquiry raised by Art 1A(2). It may be relevant to whether the fear is well‑founded; and to whether the conduct giving rise to the fear is persecution; and to whether a person … is unable, or, owing to fear of persecution, is unwilling, to avail himself of the protection of his home state.’
12.In the present case, when the Tribunal addressed the level of protection that may be provided by the State, it is not clear what ‘stage of enquiry’ the Tribunal was at. The Tribunal may have been implicitly addressing whether the applicant’s fear was well‑founded. However, in circumstances where the Tribunal had not made any of the preliminary findings that would necessitate addressing that aspect, some explicit indication to that effect in the Tribunal’s statement was required.
13.Further, the Tribunal failed to state what it means by ‘meaningful protection’. In S152, the majority stated (at [26]):
‘The … state was obliged to take reasonable measures to protect the lives and safety of its citizens, and those measures would include an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system.’
14.The phrase ‘meaningful protection’ does not meet that obligation. The ambiguity is compounded by the Tribunal’s statement that it is ‘satisfied that the authorities have greatly improved their ability to protect citizens living in Jakarta, as already indicated above’, and ‘that the applicant will have the same access to protection by the State as other citizens of Indonesia’. First, that falls short of saying that a reasonably effective and impartial police force exists. Secondly, the words ‘as already indicated above’ refer the reader to the Tribunal’s earlier findings that ‘Indonesian police have greatly improved their effort to protect ordinary citizens and have become more assertive in their efforts to curb activities of criminal gangs’ and that the applicants ‘will have the same economic opportunities, access to services, and protection, commonly available to all citizens of Indonesia (RD 181‑2). This finding was made in the context of assessing whether Chinese Christians will be protected, which is a different social group from the other group to which the applicant claimed to belong, namely Indonesians who have lived overseas.
15.The Tribunal’s failure to identify the group, to address whether the applicant feared harm because he belonged to that group, and to address whether any harm feared by the applicant amounted to persecution indicate that the Tribunal failed to undertake the task it was required to do, thereby making a jurisdictional error.
16.The errors are highlighted when compared to the Tribunal’s findings regarding ethnic Chinese and Catholics. The Tribunal rejected ‘the claim that ethnic Chinese and Catholics in Indonesia commonly suffer circumstances amounting to persecution for reasons of race or religion’ (RD 183) and later states that although ‘Catholics have suffered attacks in the past’, you ‘will have access to a meaningful level of protection which is commonly provided by the State’ (RD 184).
17.By those findings, the Tribunal identified the group, addressed whether the harm amounts to persecution for a Convention reason, and then goes on to address whether the fear of harm is well-founded (even though it was not required to do so, given its earlier findings). The Tribunal did not take any of these steps in relation to the case of Indonesians who have lived overseas.
The Tribunal’s error was jurisdictional in character
18.The Tribunal is required to set out its findings on those questions or facts which it considered to be material to the decision which it made and to the reasons it had for reaching that decision. Its failure to make findings indicates that it did not consider a material matter: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346.
19.A claim that arises from the material and which if accepted, could support a claim to be a refugee is one that must be considered by the Tribunal: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1. A failure to consider such a claim is a failure to ‘review’ the delegate’s decision. Such a failure infects the decision with jurisdictional error.
These submissions were supported and developed by a different counsel, who appeared today on behalf of the applicants.
The first argument of the applicants is that the Tribunal failed to make findings, in particular whether the applicant father’s fears of extortion were fears “by reason of membership of a particular social group” within the Convention definition, and whether in fact the applicant was at risk of being a victim of extortion for that reason.
It was submitted that the Tribunal’s reasoning which went directly to the question of whether the Indonesian State would be willing and able to afford sufficient protection against the feared extortion was not open to it as a matter of law, without first making findings which are absent.
However, I do not accept that it was not open to the Tribunal to address the applicant’s fears of extortion by going straight to factual issues in relation to adequate State protection. No authority was cited to me which requires findings to be made in relation to other “stages” of an analysis, and I do not consider that Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1, 78 ALJR 678 (“Respondents S152”) requires that.
Although the passage quoted by counsel from Respondents S152 as to the “stages of the enquiry raised by Art 1A(2)” identifies three elements in the definition where adequacy of State protection might be relevant, it does not imply a need to perform an analysis addressing each of those three “stages”. As the facts of that case reveal, the issue for a court on review is whether the Tribunal made a finding of fact which was open to it, and which addressed the claim made by the applicant in the sense of identifying a reason why the claimant was found not to be a refugee within the definition. If such a finding can be found, it does not matter that other elements of the definition were not addressed.
In my opinion, the Tribunal’s present findings that the applicant “will have access to meaningful protection by the State” and that he “will have the same access to protection by the State as other citizens of Indonesia”, sufficiently indicates that the Tribunal addressed an essential element which it found lacking on the material before it.
I therefore do not accept the contention that the Tribunal failed to address a significant element in the applicant’s refugee claims. On the path of reasoning which the Tribunal followed, it was not required to enter into a discussion of whether the feared extortion could be attributed to membership of a particular social group. Similarly, its findings of adequate and non‑discriminatory State protection, made on the assumption that the applicant might be the victim of crime or targeted for extortion, meant that it was not necessary for the Tribunal to make a finding as to the probability of his, in fact, becoming such a victim.
The second element in the applicants’ submissions was that the Tribunal did not assess the adequacy of State protection by reference to required legal tests. I was referred to a passage in Respondents S152 at [26], where the majority judgment refers to the obligations of the Ukrainian government as being:
… to take reasonable measures to protect the lives and safety of its citizens, and those measures would include an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system.
I accept that findings in terms of each of these aspects are not found in the present Tribunal’s reasoning. However, in my opinion, the High Court did not necessarily require such findings. The judgments in Respondents S152 generally refer to the question of State protection as requiring an assessment of whether a State was “willing and able” to protect its citizens, including by providing protection to the applicant in a non‑discriminatory fashion. Such a test is also referred to in the recent judgment of the Full Court in SZDWR & Anor v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 149 FCR 550 at [18], when rejecting an opinion that a different standard of protection was required in relation to fears of harm from “rogue State agents”:
The Australian jurisprudence on the issues of persecution and state protection do not support the notion of a third category of persecution. In Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 233 (referred to with approval in Minister for Immigration and Multicultural Affairs v Respondent S152/2003 (2004) 78 ALJR 678 at [19], Brennan CJ said that the definition of refugee must be speaking of a fear of “persecution that is official, or officially tolerated or uncontrollable by the authorities or the Courts of the Refugee’s nationality”. It follows that where the conduct of police, not acting as agents of the state, is said to amount to persecution, the question which arises is whether the state and its agencies are able and willing to deal with it. The standard of protection referred to in the cases is that of a reasonably effective police force and a reasonably impartial system of justice: see, S152/2003 at [28]. It is not complete efficacy and it does not require the state to act immediately. We respectfully agree with Sir Murray Stewart‑Smith’s view that these requirements would raise the standard to one of a guarantee of safety. S152/2003 confirms that no country can be taken to offer such a guarantee (at [26]).
In the present case, the Tribunal at earlier parts of its statement of reasons indicated that it assessed, and discussed with the applicant, general country information about measures being taken by the Indonesian government to protect its citizens who are Catholic or of ethnic Chinese background in Jakarta and in other areas of Indonesia. It made findings, which I have extracted above, finding that government authorities made efforts to protect Chinese Christians in Jakarta and to improve levels of protection, and it assessed material as to the levels of protection available.
In this context, its finding that “the applicant will have access to meaningful protection by the State” does not, in my opinion, reveal a misunderstanding of legal requirements. The Tribunal should be understood to have used the word “meaningful” in the sense of “actual” or “real”, thereby indicating that it addressed not only the ability but also the willingness of the State to afford measures of protection. As the above authorities have made clear, it is not necessary for a Tribunal to be satisfied that protection would be completely effective or would guarantee safety.
The Tribunal’s further finding, that the applicant would have the same access to protection by the State as other citizens, has confirmed that its finding of protection addressed issues of willingness and non‑discriminatory enforcement of criminal laws and procedures.
In my opinion, its finding against this element of the applicant’s claims reveals no error amounting to jurisdictional error.
Its findings as to adequate State protection were clearly made in the passage quoted above, in response to the applicant’s fears in relation to extortion arising from his period of Australian residence. I am not prepared to draw the inference, which the submission invited me to draw pursuant to Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [35], [69], and [75], that there were any matters required to be considered by the Tribunal which were not addressed. I am not satisfied that there was material supporting a claim to be a refugee which was not considered by the Tribunal.
For the above reasons I consider that the decision of the Tribunal was not affected by the jurisdictional errors argued on behalf of the applicants. It is therefore a privative clause decision within s.474(1) of the Migration Act, and I must dismiss the application.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 8 November 2006
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