SZJEO v Minister for Immigration - [2007] FMCA 1864

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJEO & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1864

MIGRATION – Review of RRT decision – where Tribunal concluded the applicants’ claims were not credible – where Tribunal considered whether “real chance of harm” should applicants return – where Tribunal considered whether applicants were persons likely to suffer from discriminatory conduct.

Migration Act 1958, ss. 91R(1)(c), 417, 424A

First Applicant:

SZJEO

Second Applicant:

SZJEP

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 2196 of 2006

Judgment of:

Raphael FM

Hearing date:

19 October 2007

Date of last submission:

19 October 2007

Delivered at:

Sydney

Delivered on:

19 October 2007

REPRESENTATION

Applicant in person

Counsel for the Respondent:

Mr T. Reilly

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $3,500.00.
The name of the First Respondent be amended to “Minister for Immigration & Citizenship”.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2196 of 2006

SZJEO

First Applicant

SZJEP

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicants in this matter are a husband and wife. They are citizens of Indonesia. They arrived in Australia on 12 January 2006 and applied to the Department of Immigration & Multicultural Affairs for protection (class XA) visas on 9 February 2006. The substantive application was made by the husband. The wife claimed to be part of his family unit. The delegate refused to grant the applicants a protection visa on 13 March 2006. On 10 April 2006 the applicants applied for review of the delegate's decision from the Refugee Review Tribunal. The Tribunal held a hearing on 30 May 2006 which was attended by both applicants. On 6 June 2006 a s.424A letter was written by the Tribunal to the applicants and was responded to on 27 June 2006. On 30 June 2006 the Tribunal determined to affirm the decision not to grant protection visas and handed that decision down on 20 July 2006.
The grounds upon which the applicants considered they were persons to whom Australia owed protection obligations were of religion and ethnicity. They are both ethnic Chinese and Christians living in Indonesia. It is notorious, and accepted by the Tribunal, that in 1998 there were severe riots in Jakarta directed towards the Chinese population. The applicants claim that they were the victims of this persecution. That claim was accepted by the Tribunal.
The male applicant's statement, which commences at [CB32] and is reproduced in the Tribunal decision at [CB97], makes reference to what occurred in 1998 and then moves to an incident which took place on 25 December 2005. On that day he and his wife were travelling to church on a bus in Jakarta when:
“…suddenly, there was a bunch of towards us to stop the bus, bearing guns and knives. They took all the money, handbags, everything from the Chinese people on the bus. However, nothing happened to the local passengers on the bus. My wife and I got off the bus, then reported to the nearest police station. But what happened was that the local police said we had to pay them some money so they could process the case for us. We paid Rp 50,000 to them. Two days later, in the evening, when we were staying with friends at my friend's home, I received a phone call from a neighbour. He said that there were some people waiting outside my house; they had guns and knives in their hands. It was obvious we were in danger, so we stayed at my friend's home [address given]. The following day, I received a phone call from a police officer, saying that I needed to pay more money, otherwise he would not protect us any more. I suddenly realised that the police had released my address to those people, and all together they wanted my money …
After all the incidents happened to my wife and me, we believed we would be killed if we stayed in Indonesia, so we escaped from our country. I sold my business for a low price and we planned to come to Australia.”
The Tribunal questioned the applicant in some detail about this incident and its connection with his planned departure for Australia. It appeared that the applicant and his wife were unsure of the date upon which they applied for a visitor's visa to enter Australia. There was also some confusion about the sale of the male applicant's business, which appears to have been commenced in September 2005 and concluded in January 2006.
On 6 June 2006 the Tribunal wrote a s.424A letter to the male applicant providing him with information that would, subject to any comments he might make, be the reason or part of the reason for deciding that he was not entitled to a protection visa. There were two pieces of relevant information, the first being that he had applied for an Australian visitor's visa on 14 December 2005, which was inconsistent with a statement made to the Tribunal that it was the incident on 25 December 2005 that prompted him to leave the country. The second piece of information was that he had stated in his protection visa application that he had to sell his business at a low price, but at the hearing he had indicated that he had put the business on the market since around September 2005.
The Tribunal explained that the first piece of information was relevant because it suggested that his departure from Indonesia was planned and not in response to the attacks on 25 December 2005 and that the second piece of information would also tend to indicate that the departure was planned and that together these pieces of information might suggest that the alleged attack on 25 December 2005 never occurred at all; it was just a statement to establish a basis for refugee status in Australia.
The male applicant responded to the s.424A letter via statement [CB77]. He agreed that he applied for the Australian visa on 14 December 2005. He stated that at that time he wanted to come to Australia for a holiday. He then said that it was the incident on 25 December that made him and his wife decide that they did not just want to go to Australia for a holiday, they wanted to stay here. The applicant confirmed that he had put the business on the market in September because things were not too good, but in fact trade had improved after October because of the Christmas rush. He said it was the incident on 25 December 2005 that encouraged him to sell the business urgently so that he could remain in his country.
The Tribunal is not obliged to believe a statement made by an applicant. It is its job to assess the credibility of persons applying for protection visas. In this case, the Tribunal did not accept the story put by the applicant and preferred its own version, namely that the incident of 25 December was a fabrication and instead that there had been a long-held plan to leave Indonesia and settle in Australia. As Mr Reilly rightly says, provided there is some logical basis for coming to this conclusion, it matters not whether it is correct or otherwise because it is a conclusion of fact which is the Tribunal's to make. So, even if the conclusion is wrong, as the applicant says it is, it is not a jurisdictional error; it is only an error within jurisdiction that cannot be reviewed by this court.
The Tribunal considered a number of other matters in relation to the applicant's claims. In particular, having accepted the 1998 violence, and continuing discrimination against Chinese in Jakarta, it considered whether there was a real chance of harm of sufficient seriousness to amount to persecution should the applicant return. It concluded that the general security problems did not amount to systematic and discriminatory conduct within the meaning of s.91R(1)(c) of the Migration Act 1958 (“the Act”). It based its conclusion upon its understanding of independent country information and therefore in a way that is not open to review.
The Tribunal then went on to consider whether the applicants might have a case that they were persons who were likely to suffer from some form of discriminatory conduct from which they would not be able to be protected by the state authorities. Once again at [CB106]:
“The Tribunal notes and accepts country information that the police have sometimes failed to provide Chinese with adequate protection, or have done so only on the payment of a bribe. It concludes from the totality of the material before it, however, that the situation has improved in recent years. Having regard to country information, it finds: - first, that there is no real chance that the police will inflict persecutory harm on the applicants as Chinese Christians in Jakarta; and second, that the police will also not withhold protection from such harm as might befall the applicants (whether Convention-related or not) on the selective and discriminatory basis of their race and/or religion, such as to amount to persecution itself.”
Finally, the Tribunal indicated that it considered the applicant's claims individually and cumulatively, but was not satisfied that they established a real chance of Convention-related persecution, now or in the reasonably foreseeable future. Whilst accepting some low-level discrimination against Chinese Christians, it was not satisfied that such harm constituted a real chance of persecution as defined by the Australian legislation.
The applicants filed an application with this Court on 10 August 2006. The application merely states that the Tribunal made a jurisdictional error in determining that they were not refugees and failed to consider whether they would be granted protection if they returned to Indonesia. As can be seen from these reasons, I am satisfied that the Tribunal did consider whether they would be granted protection if they returned to Indonesia, and I have been unable to see any jurisdictional error in the manner in which the Tribunal came to the conclusions which it did. Before me today the applicant told me that he was telling the truth and he did not understand why and he did not know whether the Tribunal had made a legal error or not. He then went on to make a plea for humanitarian consideration because of the birth of a son who he said had disabilities and needed care. The existence of this child may well be a matter that should be brought to the attention of the Minister through an application under s.417 of the Act. But it is not a matter with which this Court can be concerned.
As I have been unable to find any jurisdictional error, the application is dismissed and the applicant is ordered to pay the respondent's costs in the sum of $3500.00. I order that the name of the respondent be changed to the "Minister for Immigration & Citizenship".

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 9 November 2007