SZIYV v Minister for Immigration
[2006] FMCA 1621
•20 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIYV v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1621 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant protection visas – applicants are citizens of the Republic of Indonesia claiming fear of persecution because of their ethnicity and religion – applicants are ethnic Chinese – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.424A |
| Lay Lat v Minister for Immigration and Multicultural Affairs [2006] FCAFC 61 SZCIJ vMinister for Immigration and Multicultural Affairs [2006] FCAFC 62 Plaintiff S157 of 2002 v Commonwealth of Australia [2003] 211 CLR 476 Attorney General [NSW] v Quin (1990) 170 CLR 1 VBAM of 2002 v Minister for Immigration and Multicultural Affairs [2003] FCA 540 SZEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA FC 2 |
| First Applicant: | SZIYV |
| Second Applicant: | SZIYW |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1783 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 20 October 2006 |
| Date of last submission: | 20 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 20 October 2006 |
REPRESENTATION
| Applicants: | In Person |
| Counsel for the Respondent: | Mr Mitchell |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The title of the First Respondent is changed to Minister for Immigration and Multicultural Affairs.
The Application is dismissed.
The Applicants are to pay the First Respondent's costs in the sum of $5,000.00.
I allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1783 of 2006
| SZIYV |
First Applicant
| SZIYW |
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. The decision was signed on 12th May 2006. The Tribunal affirmed the decision of a Delegate of the Minister not to grant the Applicants' protection visas.
Background
The Applicants are citizens of the Republic of Indonesia. They are brother and sister. They are still only young. The First Applicant was born in 1984 and the Second Applicant, his sister, was born in 1985. They arrived in Australia on 12th November 2005. On 9th December they both applied for Protection (Class XA) visas, claiming that they had a fear of persecution if they have to return to Indonesia, on the basis of their ethnicity and their religion. They are ethnic Chinese and they are Christian. Their claim is that they are subject to persecution from other Indonesians who of the Muslim faith and who are in a majority.
A Delegate of the Minister refused their applications on 2nd February 2006. Accordingly, on 22nd February 2006, the Applicants applied to the Refugee Review Tribunal for a review of that decision.
The Tribunal wrote to the Applicants and invited them to attend a hearing, and they both attended and gave evidence on 23rd March.
The Tribunal set out the Applicants' claims and evidence in its decision and a detailed summary of the claims and evidence, together with country information is set out on pages 98 through to 112 of the Court Book.
The Tribunal noted the Applicants' claim that they were both born into poor conditions and that they came from a broken home.
The Applicants claimed that they suffered discrimination from Muslim Indonesians and this was on the basis of their Christianity. One day one of the neighbours said to them:
Better not get too close to Chinese.
The First Applicant, the brother, claims that native Indonesians have threatened to kill all the ethnic Chinese in a similar situation to the riots that occurred in 1998.
The Tribunals’ Findings and Reasons
The Tribunal's findings and reasons are set out on pages 113 through to 120 of the Court Book. The Tribunal accepted that the Applicants were citizens of Indonesia. Unfortunately, the Tribunal did not find that the Applicants were truthful or credible witnesses. The Tribunal sets out reasons why this finding is made. First the Tribunal claimed the Applicants provided inconsistent evidence in relation to their family circumstances in Indonesia; second the Tribunal said the Applicants provided inconsistent evidence in relation to what happened to them in 1998; third, they provided inconsistent evidence as to what happened to their house in 1998; and fourth, although on page 114 the Tribunal refers to that as "thirdly", the applicants provided inconsistent evidence in relation to their claims about their church.
The Tribunal noted at page 115 of the Court Book that the Applicant initially claimed that he worshipped at a particular church in north Jakarta but later claimed that after an attack on the church the church moved to a different location. At the same time, the Tribunal noted that the Applicant's sister provided a completely different story.
The Tribunal went on to say at page 115:
Given the inconsistencies in their statement to the Department and the information they provided at the hearing as to attacks at their church, and given the fact that the applicant brother and applicant sister provided inconsistent information not only as to when the church was attacked but also as to the consequences of the attack the Tribunal is of the views that the claims the applicants made in their statement to the Department about their church and claims the applicant brother made at the hearing about the attacks on their church are not true.
The Tribunal was satisfied from independent evidence that the Indonesian authorities do make genuine and effective efforts to protect the Christians.
The Tribunal went on to consider the situation of the Applicants returned to Indonesia, now or in the foreseeable future. The Tribunal noted that the Applicants claimed to have suffered discrimination because they are Chinese. Against this the Tribunal noted that from the independent evidence, the government officially promotes racial and ethnic tolerance and that ethnic Chinese account for approximately 3 per cent of the population and they are by far the largest non-indigenous minority group and play a major role in the economy.
The Tribunal did accept that on occasions the Applicants may have been mocked and called names which were hurtful, but did not accept that that behaviour was serious enough to constitute persecution in the meaning of the Refugee's Convention.
The Tribunal referred to independent evidence to indicate that authorities had consistently reacted very strongly against religious violence and found that there was no evidence that the government in Indonesia permits or condones the persecution of Christians in Indonesia or that it would withhold reasonable protection from Christians. The Tribunal noted that the Applicants claimed that their father was a member of a particular party called Golkar and claimed that people in the party were jealous of their father because he was Chinese and Christian. The Tribunal noted independent evidence and did not accept that members of Golkar had forced the Applicants to deny their faith and become Muslims as they had claimed.
In summary, the Tribunal was not satisfied that if the Applicants were to return to Indonesia at the time of the hearing or in the reasonably foreseeable future, that there was a real chance of persecution by reason of their race, religion or membership of a particular social group, namely Chinese Christians.
The Tribunal was not satisfied that the Applicants have a well founded fear of persecution for any Convention reason, and was therefore not satisfied that the applicants were person to who Australia has protection obligations under the Refugee's Convention as amended by the Refugee's Protocol. The Tribunal affirmed the decision not to grant protection visas.
The Application for Judicial Review
The Applicants have sought judicial review of that decision and filed an amended application on 22nd August 2006. They seek orders setting aside the Tribunal decision and remitting their application to the Tribunal for re-determination. They set out four grounds, which I will quote:
1.We were denied procedural fairness in connection with the making of the decision.
2.That a breach of the rules of natural justice occurred in connection with the making of the decision.
3.We really fear returning to Indonesia because we are ethnic Chinese and Christians.
4.We attended low level public school which had a Muslim majority. We lived among the Muslim majority who hated us because we were ethnic Chinese and Christian.
5.Our father opened a store and some people did not come to our shop because we were ethnic Chinese and Christian. One day our church was surrounding by white robed Muslims throwing stones. Our situ in Indonesia is unsettled and dangerous.
It can be seen that of the six grounds referred to, only two, numbers one and two, actually claim a jurisdictional error. Grounds three to six are in effect a restatement of the Applicants' claims for protection visas and set out claims as to factual matters which the Applicants believe the Tribunal should rule in their favour.
The Applicants have attended Court today and the First Applicant, the brother, made oral submissions. The Second Applicant, the sister, was offered the opportunity to address the Court but did not wish to do so.
Turning to the first ground, a claim of denial of procedural fairness, the Applicant brother said the Tribunal did not give him more time to explain about the decision the Tribunal had reached. Second he submitted that the Tribunal just looked at the case generally. He said he had already sent a letter to the Tribunal asking for more time to explain what he called the results of the hearing. What the Applicant is referring to is a letter written to the Applicants on 27th March this year, after the Applicants had given oral evidence. The letter is somewhat lengthy and is set out on pages 79 to 84 of the Court Book. The letter begins by saying to the Applicants:
The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa.
The letter then goes on to set out what that information is.
The information that is referred to commences at page 79 and then goes over to page 80. It sets out statements of inconsistent statements that the Tribunal noted from the Applicants' evidence. At the bottom of page 79 the Tribunal says:
This information is relevant as it may indicate that you have not provided a truthful account of your family's circumstances.
Further evidence is referred to and on page 80 the Tribunal says:
This information is relevant as it may indicate that you have not provided a truthful account of what happened to your father's shop in 1998.
Further statements are referred to and the Tribunal says:
this information is relevant as it may indicate to the Tribunal that you are not witnesses for truth.
There are further statements made on the next few pages and the Tribunal sets out why the Tribunal considers that information is relevant, including information that was submitted in the Applicants' visitors' visa application. The Tribunal then goes on to set out in the letter a summary of country information and sets out why the Tribunal considers that information is relevant. The letter then goes on to say:
You are invited to comment on this information. Your comments are to be in writing and in English. They are to be received at the Tribunal by 19 April 2006.
That letter, as I said, was dated 27th March. On 18th April, the day before the time limit, the Applicant brother wrote to the Tribunal saying:
I need more time to comment. My hearing on Thursday 23rd March 2006.
The same day the Tribunal replied indicating that the Tribunal did not consent to an extension of the time to comment on the information that it has provided. The Tribunal handed down its decision on 1st June.
The Applicants claimed that they were denied natural justice.
The Applicant brother said, when explaining that, that:
I am an oppressed human being. The Tribunal should have taken more time to understand my circumstances.
During the hearing the Tribunal Member did not press the Applicant to answer and they were not sure when certain matters had taken place.
Counsel for the First Respondent has submitted that in respect of grounds one and two, the natural justice hearing rule did not apply to the application for review because it was filed after the commencement of s.422B of the Migration Act. Counsel for the Minister referred the Court to the decisions of Lay Lat v Minister for Immigration and Multicultural Affairs [2006] FCAFC 61 at [66] and SZCIJ vMinister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8].
He submitted that the Tribunal had complied with its obligations by inviting the Applicants to the hearing in accordance with ss.425A and 441A and providing them with an opportunity to appear and present their case to the Tribunal hearing.
The Tribunal, he submitted, did not fail to comply with s.424A of the Migration Act because it provided the Applicants with particulars of information that the Tribunal considered would be the reason or part of the reason affirming the decision under review and described why the information was relevant to the review and invited the Applicants to comment on it. In my view, that submission is correct.
In respect of grounds three, four, five and six, counsel for the Respondent submits that these grounds appear to ventilate the Applicants' claims as to the merits of their application for a protection visa. He submits that unless the Tribunal decision is affected by jurisdictional error, the Court has no jurisdiction in relation to the decision under ss.474 and 476 of the Migration Act. I am referred to the decision of Plaintiff S157 of 2002 v Commonwealth of Australia [2003] 211 CLR 476 at [76] and also Attorney General [NSW] v Quin (1990) 170 CLR 1 at pages 35 and 36. The counsel for the Respondent referred to the letter sent by the Tribunal to the Applicants on
27th March, which, as he said, complied with the provisions of s.424A of the Migration Act.
Counsel for the Respondent submitted that there was one matter that formed part of the Tribunal's reasons that was not put to the Applicants in that letter, which was information that appears at page 113 of the Court Book, which was:
He (meaning the First Applicant) claimed that his sister did not work in his father's shop. She (meaning the Second Applicant) claimed that she worked in her father's shop.
In respect of that, counsel for the Respondent submits that information was given as part of a joint application for review by the Applicant brother and sister. The evidence of the sister was information that the brother gave for the purpose of the application and the evidence of the brother was information that the sister gave for the purpose of the application. In those circumstances, this information is information to which sub-s.424A(3)(b) applies. It refers to VBAM of 2002 v Minister for Immigration and Multicultural Affairs [2003] FCA 540 per Grey J at [44] and also SZEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 per Allsop J at [252]. I am also referred to a number of other decisions.
The submission is that the evidence of each of the Applicants was given for the application for review which was signed and filed by both Applicants. It was therefore excepted from the obligations in
sub-s.424A(1) by virtue of sub-s.424A(3)(b). In my view that submission was correct and I need not consider the alternative submission made.
I am of the view that the Tribunal decision does not show any breach of procedural fairness. The Applicants were invited to attend the hearing. They attended that hearing and they both gave oral evidence.
The Tribunal considered their evidence and set their evidence out in full in great detail in the Tribunal decision. The Tribunal did comply with s.424A of the Migration Act in its lengthy letter that it wrote to the Applicants asking for their comments.
The First Applicant did ask for an extension of time to answer what was quite a lengthy letter. It is perhaps regrettable that the Tribunal did not see its way clear to grant a short extension of time to reply to quite a lengthy and detailed letter. I am aware of the fact that the Tribunal is under an obligation to deal with applications within the 90 day period. Nevertheless it does not seem to me that it would have done any harm if the Tribunal had granted an extension of seven, or even 14 days.
The Applicant did not give a reason as to why he sought more time to answer but it is a fact that the Applicants were not represented by a Migration Agent and English is not their first language. To my mind rejecting the application for an extension out of hand was perhaps severe, although it does not constitute a jurisdictional error.
The Tribunal did consider the relevant parts of the Applicants' claim. The Tribunal considered their situation as ethnic Chinese in Indonesia as being part of an ethnic minority. The Tribunal considered the situation that they are of the Christian religion and therefore part of a religious minority. The Tribunal considered their claim as members of a social group being ethnic Chinese Christians in Indonesia.
The Tribunal considered the extent of the harm which the Applicants claim to have suffered and it was satisfied that whilst mocking and discrimination was hurtful, it was not sufficient to amount to persecution.
The Tribunal considered the available level of state protection for members of an ethnic minority and a religious minority and formed the view that the government in Indonesia, based on the independent information did not tolerate discrimination against people in the situation of the Applicants, and certainly would make efforts to provide protection to them for persecution. As I said, the third to the sixth grounds of the Applicants' claim are no more than restatements of their actual claim for a visa.
In my view, none of the Applicants' claims of jurisdictional error have been made out. I am mindful of the fact that they are not legally represented and it is difficult in such an area of law as this for unrepresented people from a non-English speaking background to present a case to show why jurisdictional error has been made out.
The Applicants are only young adults and I accept the fact that it is difficult for them to present their own case in a Court of law. I am satisfied that no jurisdictional error can be found, whether it is one which the Applicants have claimed or one that I have endeavoured to ascertain could be made out on the material before me.
There is no jurisdictional error and it follows then that the decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act. As such, a privative clause decision is final and conclusive and is not subject to declaration, certiorari or mandamus in any Court, for any reason. Unfortunately for the Applicants the application must be dismissed.
There is an application for costs on behalf of the First Respondent. The Applicants have been unsuccessful in their claim and I see no reason why I should depart from the usual practice to make an order for costs in favour of the successful Respondent. The amount sought is $5,000.00 inclusive of Counsel's fees, which is, to my mind, an appropriate figure. The Applicants do not have the resources to meet that amount at this stage. They borrowed money to come to Australia and they are both working and endeavouring to repay that debt. That is quite understandable. It is not a matter that would mean that the order for costs should not be made, or should not be made in the sum of $5,000.00, but I do consider that it is reasonable to allow time to pay. I will allow six months to pay in the circumstances.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 1 November 2006
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