SZOTQ v Minister for Immigration
[2011] FMCA 142
•8 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOTQ & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 142 |
| MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – allegation that the Tribunal’s decision affected by jurisdictional error by reason that it misunderstood the applicants’ claim, failed to make a particular finding of fact and failed to deal with a claim made by the applicants. |
| Migration Act 1958, s.474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| First Applicant: | SZOTQ |
| Second Applicant: | SZOTR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2449 of 2010 |
| Judgment of: | Cameron FM |
| Hearing date: | 8 March 2011 |
| Date of Last Submission: | 8 March 2011 |
| Delivered at: | Sydney |
| Delivered on: | 8 March 2011 |
REPRESENTATION
| The Applicants appeared in person. |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The application be dismissed.
The applicants pay the first respondent’s costs fixed in the amount of $4,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2449 of 2010
| SZOTQ |
First Applicant
| SZOTR |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The first and second applicants, who are husband and wife respectively, are citizens of Indonesia. The first applicant claims that, while in Indonesia, he borrowed money from an illegal money lender but was unable to repay the loan. He claims that the money lender subsequently employed “mafia gangsters” to threaten him and his family. The first applicant also claims that while in Indonesia he became involved in a business dispute with Muslim fish vendors. He claims that his fish stall was subsequently destroyed.
The first applicant claims to fear persecution in Indonesia from illegal money lenders and “mafia gangsters”. He also claims to fear harm from Muslims in his area over the business dispute regarding his fish business. The second applicant, who completed a separate application for a protection visa, claims to fear persecution in Indonesia because she is the first applicant’s wife.
The applicants arrived in Australia on tourist visas in August 2003 and lodged applications for protection visas on 26 February 2010. On 4 June 2010 their applications were refused by a delegate of the first respondent (“Minister”) following which the applicants sought review with the Refugee Review Tribunal (“Tribunal”). They were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicants’ applications for visas. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicants’ claim for protection visas are set out on pages 4 – 10 of the Tribunal’s decision.
Protection visa application
The first applicant made the following claims in his protection visa application:
a)he experienced a cash flow problem in his business and was forced to borrow money from an illegal money lender at extremely high interest rates;
b)the illegal money lender used “mafia gangsters” to collect its debts and many people had been killed for not repaying their loans. One night they vandalised his car and left a note threatening to kill him and his family;
c)his brother also owed them money. He was tortured by the mafia and suffered mental problems as a result, eventually committing suicide;
d)he came to Australia to escape from the mafia gangsters;
e)the mafia gangsters are everywhere in Indonesia and they are waiting for him to return. A friend in Indonesia recently advised him that the mafia were still pursuing him even though the debt was owed seven years ago; and
f)the Indonesian authorities cannot protect him because they do not care if people are being threatened; they gave him no support when his car was vandalised. Also, police abuse has become normal and there are government sectors which have been bribed by the mafia.
The second applicant reiterated these claims in her protection visa application and stated that she feared being killed by the mafia because of the debt owed by her husband.
Departmental interview
At a departmental interview on 31 March 2010 the first applicant claimed that his electronics business began losing money in 1999. He claimed that, in order to increase his capital, he borrowed A$100,000 from money lenders at an interest rate of twenty percent. He claimed that he was able to keep up with the interest payments but was unable to repay the principal.
The first applicant also claimed that he owned a fish stall in Indonesia. He claimed that he began experiencing problems when he was accused by other stallholders of selling non-halal fish. He claimed that in 2000 he was advised by the police that his stall had been destroyed and when he went to inspect the damage someone threw an object at him, knocking him off his motorcycle. He did not previously mention these claims because he did not want his son, who had helped him complete his protection visa application, to worry.
The second applicant claimed that the motorcycle accident had been caused by Muslims. In their protection visa application forms, she and the first applicant claimed to be Buddhists. She also claimed that she suffered discrimination in her business because of her Chinese ethnicity.
Tribunal
At a Tribunal hearing on 29 September 2010 the first applicant made the following claims:
a)because he was undercutting the prices of the Muslim fish vendors, he was falsely accused of selling non-halal fish. In 2002 he had an argument with Muslim stallholders and was advised the next day that his stall had been destroyed;
b)he fears that if he returns to Indonesia he will be beaten to death by Muslims in his area because of the dispute over his fish business;
c)his son was studying in Australia. He told his son in Hokkien what had happened to him. His son then set out his claims in English and read the completed application back in Hokkien. He failed to notice that his fish stall claims had not been included in the application because he had just had an argument with departmental officers and was confused at the time; and
d)in 2004 he paid someone to lodge a protection visa application on his behalf but this person failed to do so. He did not apply for protection after 2004 because he had been told that there was nothing he could do as his visa had expired.
At the hearing the second applicant made the following claims:
a)she feared harm from the same Muslim group which had harmed her husband and was afraid that they would target her because she was his wife;
b)she also feared that she would be harmed by the loan sharks because of the outstanding debt;
c)she did not mention the fish stall incident in her own visa application because her son had been busy with his schooling and he did not have much time to help the applicants with their applications. Also, she did not have a clear idea about what had happened and her husband was the person who was best placed to speak about it;
d)in 2004 she returned to Indonesia for a short holiday because she needed to visit her son. As a measure to protect herself she hid in her mother’s house while she was there. Even though her husband is the main person “they” wish to harm, if they cannot find him they might harm her instead; and
e)her son also made a number of holiday visits to Indonesia.
The Tribunal’s decision and reasons
After discussing the claims made by the applicants and the evidence before it, the Tribunal found that it was not satisfied that the applicants are persons to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal was not satisfied that the applicants were at any risk of harm because of an argument the first applicant may have had with other vendors in a fish market in his home town, noting in this connection that:
i)the first applicant’s account of the incident was notably vague and brief and was largely devoid of circumstantial detail;
ii)no such claims were made by the applicants in their protection visa applications and neither of them could offer a reasonable explanation for this at the hearing. In the Tribunal’s view, it was difficult to understand why the applicants would not have made even a passing reference to these claims if they genuinely feared harm in Indonesia as a result of the incident;
iii)the claimed connection between the fish stall incident and the motorcycle accident rested on nothing more than simple conjecture; and
iv)the Tribunal accepted that the first applicant may have been involved in a dispute with other fish vendors and that his stall may have been damaged as a result. However, the Tribunal was not satisfied that the basis for the dispute was anything other than a simple commercial one arising from the fact that the first applicant was undercutting the prices of his competitors. Further, to the extent that the first applicant may have suffered harm, the Tribunal was not satisfied that this was for a Convention reason even if the persons who damaged his stall happened to be Muslims. Nor was the Tribunal satisfied that, more than seven years after his departure from Indonesia, there was a real chance that he would be harmed for such a reason were he to return there;
b)the Tribunal was not satisfied that the applicants were at risk of serious harm from mafia gangsters over a loan which the first applicant had not repaid, noting that:
i)it was difficult to understand why this fear, which had been spelled out in some detail in his protection visa application prepared in February, would not have been mentioned at all by the first applicant when, at the hearing seven months later, he was invited to explain why he feared returning to Indonesia;
ii)it was also difficult to reconcile the first applicant’s claim that he was forced to borrow A$100,000 to save his business with the other outward indications of his wealth, including his ability to demonstrate adequate financial resources when applying for his son’s student visa, the fact that his wife made a return holiday visit to Indonesia within nine months of arriving in Australia and the fact that his son had made several holiday trips to Indonesia; and
iii)even were the Tribunal to accept the first applicant’s claims in this regard, which it did not, nothing suggested that the harm he might face would be Convention-related. Rather, if he or other members of his family were harmed, this would be for a purely private reason. Further, there was nothing in his claims to indicate that the Indonesian authorities would fail to protect him;
c)the Tribunal found that the applicants’ delay in seeking protection, their applications being made nearly seven years after their arrival in Australia, was not consistent with their claim to fear persecution in Indonesia; and
d)in light of these findings and given that the second applicant did not claim to fear harm for any reason other than the harm which the first applicant might suffer, the Tribunal was not satisfied that there was a real chance that the second applicant would face serious harm for a Convention reason were she to return to Indonesia.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
1.The RRT misunderstood my claim.
2.The RRT failed to accept my injury as a result of which affected my evidence.
3.The RRT failed to recognise my claim.
In his submissions to the Court, the first applicant also said that he had reported the motorcycle incident to the police, but no action had been taken, and that this indicated that the Indonesian authorities discriminated against persons of Chinese ethnicity.
Ground 1
In the first ground of the application, the applicants allege that the Tribunal misunderstood their claims. In relation to the first applicant, the Tribunal's decision records that it identified the two claims which he had made, namely, the problems he said he had suffered at the hands of Muslim members of the community in connection with his fish stall, and secondly, the potential harm he said he feared from what the Tribunal described as “loan sharks”. A consideration of the Tribunal’s decision, as summarised earlier in these reasons, discloses that the Tribunal considered each of these claims but rejected them for the reasons which it gave. The Tribunal understood the claims which were made by the first applicant but concluded, on the evidence before it, that it was not satisfied that these demonstrated that he has a well-founded fear of persecution for a Convention reason.
The claims which the second applicant made were derivative of the first applicant’s claims. Once the Tribunal concluded that neither of the first applicant’s claims was a claim to fear Convention-related harm, the second applicant’s claims also had to fail. In this regard, although at [33] of the Tribunal’s decision the second applicant is recorded as having referred to the electrical business in respect of which the money had been borrowed as being her business, at [35] and [38] of its decision the Tribunal records that the first applicant made it clear that this was the loan which was the basis of his claimed fear of mafia gangsters. Consequently, to the extent that the second applicant may be considered to have made a separate identifiable claim in relation to, or arising out of, her running of the electrical business, it was dealt with by the Tribunal when it considered the loan in the context of the claims made by the first applicant.
Ground 2
In the second ground of the application, the applicants say that the Tribunal failed to accept the first applicant’s injury and “as a result of which affected my evidence.” Presumably this allegation relates to the first applicant’s claim to have been knocked off his motorcycle when he was going to inspect the damage done to his fish stall. The Tribunal considered this issue at [51] of its decision but was not satisfied that the first applicant had demonstrated a link between this event and the damage to his fish stall. In the circumstances, it was unnecessary for the Tribunal to find whether or not the motorcycle incident had actually occurred and the fact that it did not do so did not amount to jurisdictional error.
Ground 3
The third allegation made in the application, that the Tribunal failed to “recognise my claim”, is in substance the same claim made in the first ground of the application and for the reasons given in relation to that ground must also fail.
Oral submissions
The matter raised by the first applicant in his oral submissions in relation to him reporting the motorcycle incident to the police presents a question concerning whether the first applicant raised a claim which the Tribunal failed to deal with, namely, the discriminatory availability of state protection. Even if such a claim may be said to have been made to the Tribunal or to have arisen tolerably clearly from the material before it, which is certainly open to doubt, there was no need for the Tribunal to consider it. First, the Tribunal was not satisfied that a link had been made between the motorcycle incident and the trouble at the fish stall but, secondly and more significantly, at [52] of its decision the Tribunal was not satisfied that seven years after the applicant left Indonesia a real chance of harm existed in relation to that issue. In such circumstances, a consideration of the need for state protection and whether or not it was available for persons of Chinese ethnicity was unnecessary.
Conclusion
For these reasons, jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 17 March 2011
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