SZIUM v Minister for Immigration and Citizenship

[2007] FCA 422

FEDERAL COURT OF AUSTRALIA

SZIUM v Minister for Immigration and Citizenship [2007] FCA 422

SZIUM AND SZIUN v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2237 OF 2006

CONTI J
23 MARCH 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2237 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIUM
First Appellant

SZIUN
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	CONTI J
DATE OF ORDER:	23 MARCH 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to ‘Minister for Immigration and Citizenship’.

2.The Refugee Review Tribunal be joined as the second respondent.

3.The appeal be dismissed.

4.The second appellant pay the first respondent’s costs of the appeal.

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 2237 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIUM
First Appellant

SZIUN
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	CONTI J
DATE:	23 MARCH 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of Federal Magistrate Smith, delivered on 26 October 2006, whereby his Honour dismissed an application for review of the decision of the Refugee Review Tribunal (‘the Tribunal’), made on 23 March 2006 and handed down on 4 April 2006, being a decision which affirmed separate decisions of the Minister’s delegate made on 12 December 2005 adversely to the appellants.

2. The first appellant is the son of the second appellant. The family’s history of association with Australia traces back to 1993, when the wife/mother of the appellants commenced making a series of visits to Australia.  The appellant father first visited Australia in 1994.  He and his wife last came to Australia in 1997, and their son, the first appellant in the present proceedings, was born in Australia in January 1998. Indonesia is the country of nationality of all members of the family. 

3. Separate applications for protection visas were made in 1998 by the wife and in 1999 by the daughter of the husband and wife. Though named as members of the family unit in that application, the father and son did not at that time put forward separate refugee claims. The wife’s application was refused initially by a delegate of the Minister on 25 April 1998 and on review by the Tribunal on 30 November 1999. The family was taken into immigration detention in 2005, having by that time exhausted for the time being avenues for judicial review. However, a decision was subsequently made that the father and son were not prevented by the provisions of s 48A of the Migration Act 1958 (‘the Act’) from making second applications for protection visas.   

4. Other events in the somewhat complex background to the respective claims, and the pursuit thereof, are conveniently recorded in the reasons for decision of Smith FM below.

   The Tribunal’s decision

5. The present appellants claimed a fear of persecution based on their religion (Catholic) and ethnicity (Chinese); in summary the case advanced is that:

   (i)the appellant son, being a Chinese Christian in Indonesia, and the appellant father, being a Christian in Indonesia married to a person of Chinese ethnicity (of course his wife above identified), were targets of potential violence from members of the Muslim Indonesian community and/or native Indonesians, especially during periods of civil unrest;

   (ii)the appellant son would suffer hardship by the change in climate, diet, hygiene and increased pollution, as well as being disadvantaged by his education and standard of living, together with the racial and religious discrimination in Indonesia, to an extent that would amount to persecution;

   (iii)they would suffer harm because people in Indonesia would assume that they are wealthy; and

   (i)the authorities would not protect them from harm.

6. In reaching its decision, the Tribunal:

   (i)accepted that in certain parts of Indonesia, that is the Moluccas and Sulawesi, the tension between Muslims and Christians was high and on occasions resulted in ethno-religious violence, but found that the appellants would not need to live in either of those areas, but could, as the appellant father and his wife did beforehand, live in Jakarta;

   (ii)formed the view that, in Jakarta, ethnic Chinese Catholics are not targeted ‘by either indigenous Indonesians, Muslims, rogue elements in government, or any other group or individual, because of religion or ethnic background’;

   (iii)determined that, in any event, ‘Indonesian police have greatly improved their efforts to protect ordinary citizens and… curb activities of criminal gangs who operated under the garb of Islamic activists’;

   (iv)accepted that discrimination against Christians and Chinese people does exist in Indonesia, but concluded that such discrimination is not so serious as to amount to persecution;

   (v)determined that the appellants will have the same economic opportunities, access to services, and protection, commonly available to all citizens of Indonesia;

   (vi)accepted that the appellant husband may have difficulties in obtaining employment on his return to Indonesia, but found that this would be because of his long absence, and not for any convention related reason;

   (vii)recorded the claim that the appellants will attract the adverse interest, in particular from rogue elements in the military because, having lived in Australia, it will be assumed that they were rich, but found that this claim was not supported by meaningful evidence, and was a claim based on mere speculation; the Tribunal also found that if the appellant husband is to be a victim of crime, or is targeted for extortion, he will have the same access to protection by the State as any other citizen of Indonesia; and

   (viii)found that the appellant child would not be discriminated against or otherwise harmed by the state or any other individual or group in Indonesia to an extent amounting to persecution because of his race or religion, and the claims that as an Indonesian born and raised in Australia, he would be discriminated against, harassed, differentially treated, and otherwise harmed by indigenous Indonesians, Muslims, the State and other children, were not supported by evidence.

7. The Tribunal, accordingly, refused the appellants’ application for review of the decision of the Minister’s delegate.

   The proceedings on appeal to the Federal Magistrates Court

8. The proceedings below in the Federal Magistrates Court were commenced by way of an application filed on 8 May 2006.  An amended application was subsequently filed on 27 July 2006, the grounds whereby being as follows:

   ‘1.       The Tribunal constructively failed to exercise its 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.’

9. The Federal Magistrate below set out in full the written arguments submitted on behalf of both of the present appellants.  His Honour dealt with the grounds for review of the Tribunal’s decision in the terms which are set out in pars [22] to [33] of his Honour’s reasons, and which may be taken as incorporated within these reasons, and which demonstrate a careful and comprehensive recitation on the part of his Honour of the facts and circumstances addressed by the Tribunal and relevant judicial authority. Based on the reasons contained within those paragraphs, his Honour came to the conclusion that the decision of the Tribunal was not vitiated by jurisdictional error. 

   The Federal Court Proceedings

10. The grounds of appeal presented to the Court by the appellants for resolution were as follows:

    ‘The Honourable single Judge failed to find error of law, jurisdictional error and procedural fairness and relief under s 39B of the Judiciary Act 1903.

    The Honourable single Judge did not take into [account] that the applicant have “well founded fear of persecuted on convention reason”.’

11. Those purported grounds of appeal were not supported by particulars, and as such are so unspecific as to be of insignificant value by way of support for the respective claims of the present appellants to refugee status.  I agree with the following contentions of the solicitor for the Minister:

    (i)‘the grounds pleaded in the notice of appeal are entirely misconceived and/or meaningless’;

    (ii)‘the second paragraph of the grounds pleaded discloses a fundamental misunderstanding of the role of a court in judicial review proceedings and, in effect, seeks to assert legal error on the basis that the court below did not engage in merits review’;

    (iii)‘[t]he first paragraph of the ground pleaded, given a beneficial interpretation, amounts to a generalised assertion of legal error, and/or a denial of procedural fairness, which is unsupported by particulars. If one strains to give some content to this paragraph, one may assume that what is sought to be asserted is that the learned Federal Magistrate erred in refusing relief in the proceedings below’;

    (iv)‘[t]he reference to (a denial of) procedural fairness remains meaningless in that context, as there was no such argument advanced in the court below; and

    (v)‘[i]n relation to the matters that were raised in the proceedings below,… the reasons of the learned Federal Magistrate do not disclose any legal error or error of approach. In the absence of any particulars or written submissions, the assertion of error by the appellants lacks content’.

12. The appellant father appeared in person for himself and his son.  He was pleasant and frank, as well as articulate in what he was able to put forward by way of contentions.  His dominant concern was for his son, who was said to be conscious of Australia as his only identifiable place of abode.

13. However as I explained to the appellant father, there was no legal viability in the ground for appeal which he sought to present on behalf of himself and his son, and that inevitably the appeal must be dismissed, the Federal Magistrate’s reasons for decision being free from material error. 

14. The appeal should be dismissed, and the second appellant should pay the first respondent’s costs.

15. I should place on record nevertheless that the appellant father did accept graciously and politely what I explained to him to be a case on appeal which I was unable to perceive had been substantiated by him on his own behalf and on behalf of his infant son.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:        23 March 2007

Appellant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	28 February 2007
Date of Judgment:	23 March 2007