SZJHM v Minister for Immigration

[2007] FMCA 1847

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJHM & ANOR v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1847

MIGRATION – Application to review decision of Refugee Review Tribunal – whether missing page in copy of Tribunal decision sent to applicant gave rise to jurisdictional error.

Migration Act 1958, s.430

Das v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 208 ALR 229
Minister for Immigration & Multicultural & Indigenous Affairs v Kord [2002] FCA 334
Minister for Immigration & Multicultural & Indigenous Affairsv SZANS [2005] FCAFC 41
Prahastono v Minister for Immigration & Multicultural Affairs [1997] FCA 586
SZFLM v Minister for Immigration & Citizenship [2007] FCA 863

Applicants: SZJHM & SZJHN

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2478 of 2006

Judgment of: Barnes FM

Hearing date: 15 October 2007

Delivered at: Sydney

Delivered on: 15 October 2007

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The name of the first respondent be changed to “Minister for Immigration & Citizenship”.

2. The application is dismissed.

3. The applicants pay the costs of the first respondent fixed in the sum of $3,750

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2478 of 2006

SZJHM AND SZJHN

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for a review of a decision of the Refugee Review Tribunal handed down on 14 July 2006 affirming a decision of a delegate of the first respondent not to grant the applicants protection visas. The applicants are husband and wife and citizens of Indonesia who arrived in Australia in December 2005 and applied for protection visas in January 2006. In a written statement accompanying the protection visa application, the applicants claimed that they had suffered a massive trauma caused by incidents of 15 May 1998 “where anti-Chinese sentiment ran rampant on the street of Jakarta”. The applicant husband claimed that he was tortured and that their shop was burnt to the ground because they were Chinese (albeit born in Indonesia), that since those incidents their lives had been shattered and that they were unable to cope with daily activities and conduct their business. The applicant husband also claimed that their fear “effected (sic) their their day of worship, Sunday has always been a day of prayer but the church has also been fire bombed”. The applicant contended that the Indonesian military were incompetent and the administration weak. (These claims were repeated in a written statement accompanying the Tribunal review application)

2. The application was refused and the applicants sought review by the Tribunal. The Tribunal recorded that at the Tribunal hearing which the applicant husband attended, he clarified that he had not lived in Jakarta but that he and his wife had lived all their lives in a village elsewhere in Indonesia. He claimed that in May 1998 he had had an incident on his motor bike when he crashed into a Muslim Indonesian, that he had been surrounded by an angry crowd of bystanders who called him “Chinese” and began to beat him and that he required stitches to his finger when he went to hospital. He claimed that the person he hit had sought compensation, although he did not require hospital treatment, and that no police had attended the incident. After this he felt frightened and scared, especially of Muslims.

3. The Tribunal recorded that it had asked the applicant why he had not referred to this incident in his written statement and that he claimed that he did not do so because he did not want to “make a bigger problem of it”.

4. When asked about any other incidents, the applicant told the Tribunal that he had been employed as a paint salesman for about seven years but that Muslim paint shop owners did not want to do business with him. In 2003 he and his brother-in-law had set up a profitable small business renting playstations. Three months after they set up the business people had come and asked him for security money. He had been forced to pay each month as they threatened to take his customers away from his business. He stated that he did not report these demands for security money to the police because there was no point as the police themselves would want the money. He claimed that on one occasion when he could not make the monthly payment, someone reported his business to the police as a gambling operation and that his brother-in-law was taken to the police station. He had to pay the police in order to get his brother-in-law released.

5. The applicant also told the Tribunal that he lived in a village where everyone knew each other and people knew him as Chinese and called him names.

6. The applicant is recorded as having told the Tribunal that the events set out in the written statement were events that happened in Jakarta to the Chinese community and that he had been giving a general account of persecution of the Chinese community. When asked if he had been prevented from Christian worship because his church had been burnt down, he said that the church that had been burnt down was in Jakarta.

7. The applicant claimed to fear discrimination and further extortion attempts as the person who had demanded money from him would think he had money if he returned from Australia. His brother-in-law had not continued the business, nor had he mentioned any further demands for money.

8. In its findings and reasons the Tribunal first addressed the claims made by the applicant in writing. Based on the retraction of those claims at the hearing the Tribunal found that the applicant did not suffer persecution or serious harm in the way described in the written statement of claims made to the Department and the Tribunal. It found that he was not tortured and that his shop was not burnt. It did not find that the church where he worshipped was burnt or that his ability to continue to worship was affected.

9. The Tribunal then addressed the new claims made by the applicant at the Tribunal hearing. It noted that the applicant had indicated that the written statement was intended to be a general statement about the situation of the Chinese community. The Tribunal accepted that at the hearing the applicant gave an honest account of his experiences before he came to Australia.

10. In relation to the claim that in 1998 he was beaten up by members of the public after causing a motorbike accident and hitting a ‘native’ Muslim Indonesian, the Tribunal accepted the applicant’s account of having been beaten up by a crowd of bystanders, but found that this incident took place in 1998. The applicant had not provided evidence of any further repercussions or incidents of this nature after his release from hospital. Nor was there any claim by the applicant that he was afraid that he would suffer further harm because of this incident if he returned to Indonesia. On this basis the Tribunal stated:

    The Tribunal accepts that the applicant may have suffered some harm and discrimination during this incident but does not accept that it was serious harm that he now has any subjective fear regarding this or that there is any chance of future repercussions.  The Tribunal finds that the applicant does not have a well founded fear of future serious harm as a result of systematic and discriminatory conduct if he returns to Indonesia on account of this incident. 

11. In relation to the applicant’s claims of extortion by 3 men in his neighbourhood, the Tribunal accepted that the applicant had been subjected to demands for protection moneys as claimed and that he may have believed he would not be given effective protection by the police. However it noted that the applicant did not claim that he had shut his business down because of extortion demands or that his brother-in-law had suffered any further harassment or demands for money after the business was closed. The Tribunal found that the extortion the applicant experienced did not amount to serious harm as it did not threaten his capacity to exist. It was not satisfied that there was a real chance that the applicant’s experiences in relation to the business would be repeated. It found that these incidents did not give rise to a well-founded fear of persecution.

12. In addition, the Tribunal rejected a speculative claim by the applicant that he would be subject to extortion if he returned to Indonesia because he would be expected to bring money from Australia even if he did not set up another business. The Tribunal found there was no evidentiary basis for this claim and stated that it was not aware of any evidence to support a conclusion that a person in the position of the applicant returning from Australia would be subject to extortion because they would be expected to bring money with them. It did not accept this claim. Nor did the Tribunal accept that there was a real chance that the applicant would suffer harm that would amount to significant economic hardship or that would threaten his capacity to exist in the reasonably foreseeable future on this basis, on the basis of the applicant’s past experiences or on the basis of information before the Tribunal about the situation of the Chinese community generally.

13. The Tribunal accepted that the applicants may have suffered some societal discrimination because of their Chinese ethnicity that they found distressing, but on the evidence before it found that although the applicant may be subject to some discrimination if he returned to Indonesia, it was not satisfied that he had a well-founded fear of persecution within the meaning of the Refugees Convention.

14. The applicants sought review of the Tribunal decision by application filed in this Court on 5 September 2006. The application was accompanied by two affidavits in which the applicants attested respectively that the applicant wife did not want to go back to Indonesia and the applicant husband would be put in danger if he went to Indonesia. The application is expressed as having three grounds. The first ground is, however, a statement that the decision involved an important exercise of the power conferred by the Migration Act and Regulations. Such a statement does not raise a ground or establish a jurisdictional error.

15. Ground 2 is as follows:

    The Tribunal’s finding is illogical.  The Tribunal does not think that I have a well-founded fear of future serious harm while the Tribunal accepted that I was ever beaten up by a crowd of bystanders in 1998 as a result of systematic and discriminatory conduct.

16. First, the Tribunal’s finding was not in fact a finding that the Tribunal accepted that the applicant was beaten up in 1998 as a result of systematic and discriminatory conduct. Rather, while the Tribunal accepted that the applicant was beaten up and may have suffered some harm and discrimination during this incident, it did not accept that it was serious harm or that he now had any subjective fear regarding this or that there was any chance of future repercussions. In that context the Tribunal found that the applicant did not have a well-founded fear of future serious harm as a result of systematic and discriminatory conduct if he returned to Indonesia on account of this incident.

17. The fact that the Tribunal accepted that the applicant had been beaten up as claimed does not establish that it was illogical for the Tribunal to find that the applicant did not have a well-founded fear of future serious harm as a result of systematic and discriminatory conduct if he returned to Indonesia on account of this incident, let alone an illogicality constituting jurisdictional error. The finding that the Tribunal made in this respect was reasonably open to it on the material before it. In that respect I note that the applicant’s evidence was that the incidents had occurred some eight years earlier and that there was no evidence before the Tribunal of any subsequent or ongoing incidents of harassment. As submitted for the first respondent, whether conduct is sufficiently serious to amount to persecution is a matter of fact and degree for the Tribunal (see Prahastono v Minister for Immigration & Multicultural Affairs [1997] FCA 586; Minister for Immigration & Multicultural & Indigenous Affairs v Kord [2002] FCA 334;  Das v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 208 ALR 229; and Minister for Immigration & Multicultural & Indigenous Affairsv SZANS [2005] FCAFC 41).

18. The application specifically addresses only the applicant’s claim that he was beaten up by a crowd of bystanders in 1998. However, the Tribunal’s findings regarding the applicant’s extortion claims were also open to it on the evidence before it. The Tribunal considered evidence that the applicant had not closed his business because of the extortion and that his brother-in-law had not suffered any further harassment or extortion after the business was closed.

19. No jurisdictional error is established on the basis contended for in ground 2 of the application.

20. The third ground of the application is “I do not find the page 8 of the decision which the Tribunal sent to me on 03 August 2006”. There is no affidavit evidence from the applicant in relation to this claim, although I note that the copy of the Tribunal’s decision annexed to the applicant wife’s affidavit in fact includes only every second page of the Tribunal decision. However, proceeding on the basis for present purposes that when the applicant first received a copy of the Tribunal decision it did not include page 8, nonetheless no jurisdictional error is established on that basis.

21. This is so notwithstanding the Tribunal’s obligations under s.430B(6) of the Migration Act 1958 (Cth) to provide the applicant with a full copy of its decision. In that respect I have had regard to the decision of Madgwick J in SZFLM v Minister for Immigration & Citizenship [2007] FCA 863. In that case his Honour considered (on appeal from a decision of Federal Magistrate Driver) a similar situation where the Tribunal had failed to send a complete copy of its decision to the appellant. Federal Magistrate Driver had accepted the submission of the first respondent that the only relevant consequence of a breach of s.430B(6) was to suspend the running of time for the purposes of the statutory time limits on judicial review and that no jurisdictional error arose. While Madgwick J suggested that “an unremedied failure to comply with s.430D has consequences other than the postponement of time limits for seeking judicial review” having regard to the fundamental importance to a process of administrative review that an unsuccessful party should be told of the decision in a reasonably timely way (so that, for example, until such time as s.430D had been complied it should not be open to the Minister to seek to have the applicant concerned removed from Australia), such an issue does not in this case.

22. Rather the issue is whether such a failure constitutes a jurisdictional error. In that respect Madgwick J agreed with what was said by Federal Magistrate Driver. Similarly I agree that such circumstances do not constitute a jurisdictional error. There is no issue as to the operation of the time limits for judicial review raised in the circumstances of this case. Further, as in SZFLM, the applicants in this case received a complete copy of the Tribunal decision in the bundle of relevant documents provided to them by the solicitors for the first respondent before the hearing in this Court. The orders made at the directions hearing in this case gave the applicant the opportunity after receipt of the green book (or bundle of relevant documents) to file an amended application so that this is not a case in which the applicant was deprived of an opportunity to raise any ground on which he wished to rely based on material contained on page 8 of the Tribunal decision. No jurisdictional error is established on the basis contended for in this ground.

23. Finally, the applicant today indicated generally that he wished to remain in Australia. It is not, however, open to this Court to grant a visa on humanitarian grounds as appeared to be sought by the applicant and, insofar as the applicant seeks merits review of the Tribunal decision, merits review is not available in this Court.

24. As no jurisdictional error has been established the application must be dismissed. I will hear submissions in relation to costs.

RECORDED    :    NOT TRANSCRIBED

1. The first respondent seeks costs in the sum of $3,750. The unsuccessful applicant should meet the costs of the first respondent. I consider that the amount sought is appropriate in the light of the nature of this and other similar matters. The name of the first respondent should also be amended as is sought by the first respondent.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date: