SZRCJ v Minister for Immigration
[2012] FMCA 605
•24 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRCJ & ORS v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 605 |
| MIGRATION – RRT decision – Refugee claims of Indonesian Chinese Christian businessman – adverse findings by Tribunal – not materially irrational nor unsupported by evidence – no material error of law – extension of time for five months ordered – application for judicial review dismissed. |
| Federal Magistrates Court Rules 2001 (Cth), Sch.1 Part 3 Migration Act 1958 (Cth), ss.36(2), 91R, 91R(1), 91R(1)(a), 91R(1)(b), 91R(2), 417, 477(1), 477(2), 477(2)(b) |
| Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, [1990] HCA 33 Hui v Minister for Immigration & Anor [2011] FMCA 486 Minister for Immigration & Citizenship v SZJSS (2010) 243 CLR 164, [2010] HCA 48 Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362, [2010] FCAFC 108 Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611, [2010] HCA 16 Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559, [1997] HCA 22 Minister for Immigration & Multicultural & Indigenous Affairs v VOAO [2005] FCAFC 50 MZXSA v Minister for Immigration & Citizenship (2010) 117 ALD 44, [2010] FCAFC 123 MZYRI v Minister for Immigration & Anor [2012] FMCA 396 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1, [2004] FCAFC 263 Seiler v Minister for Immigration, Local Government & Ethnic Affairs (1994) 48 FCR 83, [1994] FCA 878 SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609, [2007] HCA 26 SZMWQ v Minister for Immigration & Citizenship (2010) 187 FCR 109, [2010] FCAFC 97 SZNZI v Minister for Immigration & Anor [2010] FMCA 57 SZOOR v Minister for Immigration & Citizenship [2012] FCAFC 58 Tuitaalili v Minister for Immigration & Citizenship [2011] FCA 1224, (2011) 124 ALD 405 |
| First Applicant: | SZRCJ |
| Second Applicant: | SZRCK |
| Third Applicant: | SZRCL |
| Fourth Applicant: | SZRCM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 196 of 2012 |
| Judgment of: | Smith FM |
| Hearing date: | 4 July 2012 |
| Delivered at: | Sydney |
| Delivered on: | 24 July 2012 |
REPRESENTATION
| Counsel for the Applicants: | Mr J R Young |
| Counsel for the First Respondent: | Mr O Jones |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The time for making the application provided by s.477(1) of the Migration Act 1958 (Cth) is extended up to and including 30 January 2012.
The application is dismissed.
The first and second applicants must pay the first respondent’s costs in the amount of $6,471.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 196 of 2012
| SZRCJ |
First Applicant
| SZRCK |
Second Applicant
| SZRCL |
Third Applicant
| SZRCM |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicants are an Indonesian family, who arrived in Australia on visitors’ visas in April 2010. On 6 August 2010 a migration agent lodged applications for protection visas on their behalf. Only the applicant father made claims to qualify as a refugee, and I shall refer to him as ‘the applicant’. The history upon which he based his fears of return to Indonesia was narrated in a written submission which accompanied the visa application. It was repeated and somewhat embellished at interviews with a delegate of the Minister, at a hearing of the Tribunal, and in a statement provided to the Tribunal after the hearing.
I shall extract below some particular parts of the applicant’s evidence. In summary, the applicant said that he had Chinese ethnicity and Christian religion. He had been assaulted, his parents killed, and their home and shop destroyed in riots directed at ethnic Chinese in 1998. He encountered religious discrimination when in 2000 his Christian congregation faced violent opposition to the building of a church. In the course of a business conducted between 2002 and 2004 he encountered demands for protection money and vandalism. In 2005 he opened a garment factory, which was successful and employed about 10 ‘native Indonesian’ employees. However, in 2009 he dismissed two employees after detecting pilfering. These employees and their supporters then threatened and abused him, and broke his windows. At the Tribunal hearing held on 31 March 2011, but not earlier, he claimed that they also severely assaulted him, causing injuries and the loss of teeth. His complaints to the local authorities achieved nothing. He then “decided to sell everything he has, packed his back and want to move to Australia”.
A delegate refused the visa applications on 25 November 2010. The delegate accepted that the applicant had faced the experiences described in the visa statement, that he had faced “ongoing instances of harassment in trying to operate his business and occasional instances of physical abuse”, and that “he may continue to face harassment and discrimination in the future”. However, the delegate referred to improvements in Indonesia since the riots of 1998, and said he was satisfied “that the government of Indonesia is willing and able to provide effective protection to ethnic Chinese and Christians”.
The Tribunal’s decision
The applicants were assisted by their agent to seek review by the Tribunal. Hearings were postponed at their request, based on medical certificates. However, eventually the applicant father and mother attended a hearing with their agent. The Tribunal included a summary of their evidence in its statement of reasons, but a transcript has not been tendered in evidence. The hearing was held by video connection between Sydney and Melbourne, and the applicant was permitted to lodge further documents after the hearing. The Tribunal found that the applicant suffered from a post‑traumatic stress disorder, but also that he “did not lack the capacity to give evidence and make submissions in support of his application” (see paragraph 70), and the applicant does not contest that finding. No issues are now taken with any procedural aspect of the Tribunal’s proceedings.
At the hearing and with the subsequently submitted documents, the applicant presented a report of a clinical psychologist, Ms Braybrooke, which responded to questions posed by his agent. The psychologist had been treating the applicant in recent times, upon a reference from his general practitioner. Her report included the following responses to the questions:
1.What is the stage of [the applicant] in the present time (medically/psychologically):
Currently [the applicant] is suffering from Anxiety, Depression, Insomnia and Post‑traumatic Stress Disorder.
2.What is the symptoms of his conditions?
- Flashbacks of his parents burnt to death
- Nightmare – screaming
- Guilt
- Regret that he didn’t save his parents
3.What is the cause of [the applicant] mental and depression conditions?
His mental and depression are triggered by his memories of how his parents were robbed, looted and invaded at their family home by the rioters in 1998, Jakarta. He felt he abandoned his parents.
4.Is this related to his past? Yes/no? If yes, Please kindly advise your opinion in this matter.
It will be a long time before [the applicant] will be able to be free from his feelings of guilt, anger and rage.
The balance of Ms Braybrooke’s report addressed the applicant’s prognosis and treatment.
The Tribunal made a decision, and provided its statement of reasons to the applicants’ agent on 14 July 2011. It affirmed the delegate’s decision.
In its statement of reasons, the Tribunal narrated how the applicant’s claims had been presented, including by extracting in full the visa statement, the applicant’s post‑hearing statement, and Ms Braybrooke’s report. I shall extract below some parts of its “Findings of Reasons” which are relevant to the grounds of review which were presented to me. In summary, the Tribunal concluded:
·In the light of country information and the applicant’s evidence “there is no real chance that the applicants will be persecuted on account of their religion on return to Indonesia” (paragraph 56).
·The applicant’s evidence concerning events in 1998 was consistent, and supported by ‘well documented’ accounts of the rioting (paragraphs 58‑59). The Tribunal accepted his evidence about these experiences (paragraph 68). It accepted Ms Braybrooke’s report “concerning [the applicant’s] diagnosis and the cause of those conditions” (paragraph 68), and that he “experiences considerable anxiety and depression related to the death of his parents” (paragraph 72). However, it said that “the risk of such events reoccurring is now remote” (paragraph 72).
·Concerning events in 2009, the Tribunal accepted that the applicant had “suffered verbal abuse” including “racial taunts” from the “friends/acquaintances of the two ex‑employees”, that “he had shop windows broken” by them, and that the “local district security personnel … did little to assist him” (paragraph 63). However, it did not accept that he was physically assaulted at that time as claimed for the first time at the hearing (paragraphs 64‑69).
·The Tribunal characterised the 2009 harassment as being “essentially and significantly about the employment dispute, not for a Convention reason”, and also so characterised any future harm which might occur “for reason of this dispute” (paragraph 73).
·The Tribunal said that it “does not accept that the applicants will suffer serious harm for reason of their Chinese ethnicity now or in the reasonably foreseeable future” (paragraph 74).
·The Tribunal considered other claims of harm encountered by the applicant in the course of his business activities. It said that his claims concerning his 2002‑2004 business did not extend “beyond vandalism, which in the Tribunal’s consideration, does not amount to serious harm” (paragraph 75). It said that the 2009 circumstances did not “support a finding that Indonesian business people of Chinese ethnicity employing ethnic Indonesians face serious harm for reason of membership of a particular social group” (paragraph 76).
·The Tribunal concluded:
78.Having considered the applicants’ claims singularly and cumulatively, the Tribunal finds that there is no real chance that they will be persecuted for a Convention reason if they return to Indonesia now or in the reasonably foreseeable future. The Tribunal finds that the applicants do not have a well‑founded fear of persecution.
Extending time for applying to the Court
The applicants did not file their application for judicial review of the Tribunal’s decision until 30 January 2012, which was more than five months after the expiry of the 35 day time limit provided in s.477(1) of the Migration Act 1958 (Cth). In support of an extension of time under s.477(2), the applicant filed a statement, which the Minister accepted should be received as evidence, and did not seek to challenge by way of cross‑examination. This said:
4.We were represented by migration agent Rukma Paramita of A1 Migration Services. We consulted her after the decision.
5.She advised me to seek “Ministerial Intervention” I did not know this expression before she used it. She did not mention The Federal Magistrates Court.
6.Ms Paramita applied to The Minister on our behalf. This occurred in early August.
7.In December we were notified that The Minister refused to grant Ministerial Intervention.
8.Had I known about The Federal Magistrates Court and the time limited I would have sought judicial review before going to the Minister. I would not have wanted to prejudice my family’s right to go to the Federal Magistrates Court.
The Court’s power to extend time is qualified by the requirement under s.477(2)(b) that the Court “is satisfied that it is necessary in the interests of the administration of justice to make the order”. The Minister’s counsel accepted my discussion of the power in SZNZI v Minister for Immigration & Anor [2010] FMCA 57 at [11]:
11.The considerations which might bear on that discretion are unconfined. As with other powers to extend time and to waive defaults in relation to court procedures, two ‘critical’ considerations are: “(1) that an explanation, reasonable to the circumstances, is provided for the party’s absence or other default; and (2) that the party in default has a material argument which, if heard and decided on its merits, might reasonably affect the determination of the rights and duties of the parties in a way different from that in the impugned order” (see Kirby J in Allesch v Maunz (2000) 203 CLR 172 at [48]). Other considerations may come into play, including in my opinion, the implications of the appeals structure and alternative judicial review avenues (see Yu v Minister for Immigration & Anor [2009] FMCA 1161 at [40]‑[41]). None of the relevant considerations should be elevated to being a necessary consideration in all cases, including the two ‘critical’ considerations (see Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503 at 506 and 510). When reaching its ultimate conclusion, the Court must weigh all of the relevant circumstances together by reference to the statutory criterion provided in s.477(2)(b), quoted above.
The Minister’s counsel also accepted my discussion of an applicant’s delay resulting from an application for Ministerial intervention, in Hui v Minister for Immigration & Anor [2011] FMCA 486 at [29]‑[30]:
29.There is a diversity of opinion whether the pursuit of ministerial intervention and other administrative avenues for obtaining a visa can provide an acceptable explanation justifying an extension of time under s.477(2) of the Migration Act and similar powers given to the Federal Court and High Court. Even in the High Court there are contrasting recent judgments (compare Plaintiff M90/2009 v Minister for Immigration and Citizenship & Anor [2009] HCATrans 279, with Ahmed v Minister for Immigration & Citizenship [2011] HCATrans 35). Riley FM in MZYII v Minister for Immigration & Citizenship [2011] FMCA 193 at [21] recently concluded, after reviewing some of the Federal Court authorities in the area including Vu v Minister for Immigration and Citizenship [2008] 101 ALD 211; [2008] FCAFC 59:
Those two paragraphs make it clear that an application to the Minister under s.351, or its equivalent, s.417, is a matter to be considered in the overall context of all of the circumstances of the case to determine whether the applicant has a reasonable explanation for his or her delay or not. The position is not as simple as a s.417 application is always or is never a sufficient explanation for the delay.
30.I agree with this approach. In the present case, I consider that Ms Hui has shown a sufficient explanation to excuse her delay in discovering the existence of the time limit and commencing her present application. She clearly was not content to allow the Tribunal’s decision to go unchallenged generally, and speedily made her discontent known to the Minister. As will appear below, I consider that her application raises a substantial issue of concern as to the fairness of the Tribunal’s proceedings. Taking into account all the considerations which have been pointed to in authorities on s.477(2) (see SZNZU v Minister for Immigration [2010] FMCA 197), I am persuaded that it is ‘necessary in the interests of the administration of justice’ in the present case, that I should extend time.
In the present case, I have concluded that I should exercise the power to extend time, notwithstanding the relatively lengthy period of the delay, the terseness of the applicants’ evidence to explain it, and my ultimate adverse conclusions as to the applicants’ grounds of review. I accept the submission of the applicants’ counsel that I can take into account serious concerns about the mental health of the applicant father, and his uncontested assertion that the family first applied under s.417 upon advice from a migration agent and in ignorance of their rights of judicial review.
In relation to the merits of the matter, I consider that the applicants’ counsel’s submissions did at times raise grounds which were reasonably arguable and should be allowed to reach a final determination which attracts a right of appeal. I accept submissions by both counsel, which accepted that the discretion to extend time cannot be automatically exercised by reference to the ultimate outcome of the case, even when the application for extension of time was left to the final hearing (c.f. Katzmann J in Tuitaalili v Minister for Immigration & Citizenship [2011] FCA 1224, (2011) 124 ALD 405 at [25], citing French J in Seiler v Minister for Immigration, Local Government & Ethnic Affairs (1994) 48 FCR 83, [1994] FCA 878 at 98).
On balance of all relevant considerations, I am persuaded that it is “necessary in the interests of the administration of justice” that time should be extended.
Grounds 1, 5 and 6 of the amended application
The applicants’ counsel relied on the grounds which were listed in an amended application filed at the hearing. It is convenient to group and address them in a different sequence, which better relates to the sequence of the Tribunal’s reasoning and to counsel’s submissions.
Grounds 1, 5 and 6 all challenge the Tribunal’s reasoning which concluded that the applicant had not been physically assaulted during the ‘employment dispute’ in 2009. These Grounds are:
1.The second respondent made jurisdictional error by making a decision [which] was capricious or irrational or in respect of which there was no evidence by finding that a dental injury to the applicant occurred in 1998.
…
5.The second respondent made a decision which was irrational or illogical or unreasonable by treating a psychological report which it accepted to the effect that certain traumatic events had occurred in 1998, which events had caused the applicant to suffer significant mental disabilities as having evidentiary value that later events claimed by the applicant to have occurred in fact did not occur.
6.In the alternative to 5 above, on the question of whether certain events post 1998/1999 had occurred, the causation of the applicant’s disabilities by events in 1998/1999 was an irrelevant consideration.
In the Tribunal’s reasons, it explained why it had concluded at paragraph 63 that the applicant’s evidence about being assaulted contained contradictions. It explained at paragraphs 64‑65 how that evidence had emerged for the first time only in oral evidence at the hearing. It then said:
66.At hearing the primary visa applicant waved a dental plate in the air. Subsequent to the hearing he provided photographs showing that teeth were missing (in addition to a scar on a part of his body). The sheets of paper that the photographs were attached to had the stamp of a medical general practitioner on them. The Tribunal is satisfied that the primary visa applicant is missing a number of teeth and has had dental work. No medical or dental reports however have been provided to the Tribunal which could assist in identifying when and in what circumstances the primary visa applicant lost a number of his teeth. In the post‑hearing submission the primary visa applicant asserts his left hand was cut by a sharp object. Whilst one of the four photos he has provided shows a scar, the photo is not of a hand. The Tribunal has concerns about the reliability of the primary visa applicant’s recollection, which is distinct from an adverse concern about his honesty. The psychologist’s report refers to the primary visa applicant suffering from flashbacks and that his mental condition is triggered by his memories of the events of 1998. That is consistent with the Tribunal’s observation that the primary visa applicant tended in his evidence at hearing to merge events of 1998 with more recent events. For example, when asked if he was subject to serious harm just before leaving Indonesia, the primary visa applicant said that he was. When asked what particular harm, he replied that the serious harm which has happened to him in his life. In response to a question he agreed that he meant the events of 1998/1999. The psychologist’s report refers to the cause of the primary visa applicant’s post‑traumatic stress disorder as arising from those events. Her report makes no reference to a more recent physical assault.
67.Taking the above matters into account, including the conflicting evidence as to whether the physical assaults were reported to police, the Tribunal finds that the primary visa applicant was not physically assaulted in 2009 as he described. However the Tribunal finds that the primary review applicant suffered serious assault (including dental injury) and that his parents died as a result of riots/civil disturbance in 1998.
68.Taking into account the above sources, the primary visa applicant’s written and oral evidence as well as the psychologist’s report, the Tribunal accepts the primary visa applicant’s account of what happened to him and his parents in 1998, when he was about 28 years of age. The impact of those events is clearly with him today. The Tribunal accepts Ms Braybrooke’s report concerning [the applicant’s] diagnosis and the cause of those conditions. The Tribunal finds that he is suffering from Anxiety, Depression, Insomnia and Post Traumatic Stress Disorder. The Tribunal further finds that the symptoms of his conditions are flashbacks of his parents’ deaths, nightmares, guilt and regret that he didn’t save his parents.
69.The Tribunal notes that Ms Braybrooke’s report makes no reference whatsoever to traumatic events of recent years, which might have caused the condition. It is clearly the events of 1998/9 which are the cause of the primary visa applicant’s current medical conditions, according to her report.
In support of these grounds, counsel for the applicant challenged the finding found in the second sentence of paragraph 67, that the applicant had suffered a dental injury in the 1998 riots. He contended that this finding was not supported, as a matter of law, by any evidence before the Tribunal and reflected illogicality and capriciousness in its reliance on Ms Braybrooke’s report, so as to come within principles of unreasonableness recently discussed by the High Court in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611, [2010] HCA 16. He accepted that subsequent authority has held that it is necessary to establish not only that there was illogicality in the Tribunal’s reasoning, but that the Tribunal’s adverse conclusion of fact was not open on the evidence and was not just a matter upon which minds might differ (see SZMWQ v Minister for Immigration & Citizenship (2010) 187 FCR 109, [2010] FCAFC 97, MZXSA v Minister for Immigration & Citizenship (2010) 117 ALD 44, [2010] FCAFC 123, Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362, [2010] FCAFC 108, and Minister for Immigration & Citizenship v SZJSS (2010) 243 CLR 164, [2010] HCA 48 at [32]‑[37], SZOOR v Minister for Immigration & Citizenship [2012] FCAFC 58 at [15], [85], [114]).
The applicants’ counsel accepted that the Tribunal’s finding made in the first sentence of paragraph 67, that such an assault had not occurred in 2009, was open to it on the evidence and for the reasons pointed to by the Tribunal in paragraph 66. This reasoning was based essentially upon the timing and inconsistency with which the claim had been raised. It was also based in part upon the absence of reference to such a history in the report of Ms Braybooke, and her attribution of his traumatised mental state to earlier events. Counsel accepted that such reasoning on credit was open to the Tribunal.
On these concessions, it is difficult to see how any illogicality, or irrelevance, or absence of probative basis, in the Tribunal’s further finding, that the applicant had suffered a dental injury in 1998, could materially affect the Tribunal’s conclusion that the events in 2009 did not include the ‘serious harm’ of an assault occasioning a dental injury. If the 2009 finding was rational and open to it, then it was not necessary for the Tribunal to make any finding as to how, in fact, the applicant had lost some of his teeth, and it was immaterial that the Tribunal wrongly attributed a dental injury to the 1998 events.
Counsel for the applicants sought to meet this point, by submitting that the Tribunal excluded a dental injury in 2009 by first finding that a dental injury had occurred in 1998. However, I do not accept this submission. In my opinion, the Tribunal found independent reasons for rejecting the applicant’s claim that he was so injured by his persecutors in 2009. Having rejected the applicant’s evidence, it was left with photographic evidence of a loss of teeth which was not directly explained by the evidence accepted by it. It then, in effect, made an irrelevant observation that the injury had probably occurred in the course of the serious assaults on the applicant during the 1998 riot. Whether or not this observation had a sufficient factual foundation was, in my opinion, immaterial to its pertinent conclusions.
Moreover, the materiality of both findings about a dental injury also appears questionable, because of the Tribunal’s subsequent conclusions that the harassment of the applicant in 2009 did not have the required Convention nexus, and would not expose the applicant to Convention‑related persecution in the future. These conclusions were not based at all upon findings whether the 2009 harassment included the infliction of dental injuries, and they provide an independent basis for upholding the Tribunal’s ultimate conclusion on the refugee claim based on those events (c.f. SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609, [2007] HCA 26 at [28], [55]‑[59], [91]).
However, putting aside these difficulties facing these grounds, I do not accept that there was no evidence before the Tribunal which was capable of pointing to the 1998 riot assaults as a cause of a dental injury, even if minds might differ about making such a finding. The applicant’s evidence had not pointed to any other assault or other event during his life which might account for his missing teeth. Having rejected the applicant’s claims that this happened in an assault in 2009, and taking into account the applicant’s presentation and symptoms in relation to memory, I consider that it was open to the Tribunal as an administrative fact‑finder to find a possibility, even a probable possibility, that he had lost his teeth in the assaults which occurred in 1998.
Such a conclusion could, in my opinion, find support in the applicant’s memories of what had happened to him at that time. In the visa statement, these experiences were described:
During the incident of May 1998, his parents house were raided by mob of people, looted and robbed, applicant parents asked him to ran away and they too will ran away, applicant due to his fear, ran with the thought that his parents were behind him. He kept running and running outside, he was waiting for his parents, and thought they might gone to a different directions, applicant intend to go to his friend house. On the street, he was bashed, robbed, kicked and punched, bleeding. He could not go anywhere, so he went to a motel and hide there for a few days.
He was black and bruised and didn’t get up for a couple of days. He lost contact with his parents.
After couple of days, he went back and found out his parent’s house were burned down and found out that his parents could not escape the mob and were burned alive inside. The mob looted and clean every single things in the house, the mob of people then throw LPG gas and close the door from outside. They throw the fire and it exploded with the parents inside.
His longer description of the 1998 traumatic events in his post‑hearing statement included:
We tried to escape down the outside stairs but the people headed us off. They pulled at my parents shouting: “Hay, you Chinese, where do you think you are going…!!”. They roughed us up. They grabbed at us forcefully. I ran out and managed to get away and then hid awaiting my parents to come out.
Suddenly a group of other people came and intercepted me, and they hit me and carried me off. They treated me with a complete lack of humanitarianism until I lost consciousness. In the middle of the night I awoke feeling extremely sore all over my body and walked with difficulty, finally finding a place where I could overnight and went inside. There were many victims there. I stayed there a few days to recover.
For all the above reasons, I do not accept the contention in Ground 1 that the Tribunal’s ultimate decision was affected by jurisdictional error because the finding of a 1998 dental injury lacked any foundation in evidence.
Nor do I accept the contention in Ground 5, that the Tribunal’s findings were irrationally based upon an opinion found in paragraph 69, that the absence in Ms Braybrooke’s report of a history of dental injury in 2009 was evidentiary of dental injury occurring in 1998. On a fair reading of this paragraph, I do not consider that the Tribunal reasoned in this manner. In my opinion, it was merely repeating the point it made in paragraph 66, that the history recorded by Ms Braybrooke supported a finding that a serious injury did not occur in 2009, and that her opinions about the applicant’s symptoms and mental condition supported the Tribunal’s own observation that the applicant “tended in his evidence at hearing to merge events of 1998 with more recent events”.
As I have pointed out above, the alternative contention in Ground 6, leads only to a conclusion that any error made by the Tribunal about the causation of a dental injury was immaterial to its ultimate conclusion that his fears of persecution did not involve persecution for a Convention reason.
I therefore do not accept that any of these grounds and the submissions presented in support of them have established a basis for the relief claimed.
Grounds 2, 3 and 4
These grounds contended that jurisdictional error was revealed in the Tribunal’s findings from paragraphs 73 to 78:
73.The primary visa applicant claims fear of persecution on account of his Chinese ethnicity. This is clearly a claim that falls within the Convention ground of “race”. The other applicant’s claims rest entirely on the primary visa applicant’s claims. The Tribunal however finds that the issues arose as a result of sacking two workers, which was an employment‑related dispute. Despite being accompanied by racial taunts, that dispute and therefore the applicants’ claims, are essentially and significantly about the employment dispute, not for a Convention reason. The Tribunal is therefore not satisfied that any harm that might be caused to the primary visa applicant in the reasonably foreseeable future for reason of this dispute would be for a Convention reason.
74.The Tribunal does not accept that the applicants will suffer serious harm for reason of their Chinese ethnicity now or in the reasonably foreseeable future.
Membership of a particular social group - Indonesian business people of Chinese ethnicity employing ethnic Indonesians
75.The Tribunal also considered the issue of whether the applicants have suffered or would suffer harm on account of the primary visa applicant’s membership of a particular social group of Indonesian business people of Chinese ethnicity. The primary visa applicant’s evidence refers to difficulties he experienced in running businesses since 2002. In his written statements he claims that between 2002 and 2004 he paid protection money to “the mob of people nearby his business area.” He claims that, no matter how many times reports were made to authorities about vandalism of his business, nothing was done. The applicants make no claims (about that time) beyond vandalism, which in the Tribunal’s consideration, does not amount to serious harm. The primary visa applicant then opened another business in [city] in 2005 which according to his own account “flourished and grew well” until sometime in 2009 when he found employees stealing from the business. The primary visa applicant claims that he will face harm in the future because he is a business person who employs ethnic Indonesians and would face similar harm in the future.
76.In accordance with his own evidence, the primary visa applicant operated a successful clothing business for some years in Indonesia prior to closing it down in 2009 before coming to Australia. The Tribunal has found he did so in the circumstances of an employer‑employee dispute. The Tribunal is satisfied that the harm suffered by the primary visa applicant from his former employees and their supporters was for the essential and significant reason of the employment dispute between the primary visa applicant and his former employees. The evidence does not support a finding that Indonesian business people of Chinese ethnicity employing ethnic Indonesians face serious harm for reason of membership of a particular social group. In the circumstances of this application the Tribunal finds that there is not a real chance that the applicants would suffer serious harm for the reason of the primary visa applicant’s membership of a particular social group of Indonesian business persons of Chinese descent.
77.The Tribunal accepts that the primary visa applicant has post‑traumatic stress disorder as a result of the events of 1998/9 in Indonesia. He is still markedly affected by those events. His fragility however does not convert what is essentially an employment‑related dispute to become a Convention reason.
78.Having considered the applicants’ claims singularly and cumulatively, the Tribunal finds that there is no real chance that they will be persecuted for a Convention reason if they return to Indonesia now or in the reasonably foreseeable future. The Tribunal finds that the applicants do not have a well‑founded fear of persecution.
The grounds were:
2.The second respondent made jurisdictional error by making legal error as to the requirement of section 9IR(1)(a) of the Migration Act.
Particulars
The second respondent wrongly inferred that because the harm suffered was employment related, a Convention reason could not constitute the essential and significant motivation for the feared harm.
3.The second respondent made jurisdictional error by assuming that vandalism to a business and/or extortion could not amount to serious harm.
4.The second respondent made jurisdictional error by misconstruing section 91R as applying to past events and not to the well‑founded fear of persecution for one or more of the reasons stated in Article 1A(2) of the Refugees Convention.
Section 91R(1) and (2) of the Migration Act provides:
91RPersecution
(1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a)that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b)the persecution involves serious harm to the person; and
(c)the persecution involves systematic and discriminatory conduct.
(2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)a threat to the person’s life or liberty;
(b)significant physical harassment of the person;
(c)significant physical ill‑treatment of the person;
(d)significant economic hardship that threatens the person’s capacity to subsist;
(e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
…
Counsel’s oral submissions first addressed Ground 4. As I understood his submissions, this ground challenged the Tribunal’s reasoning in paragraph 73. Counsel for the applicants submitted that the Tribunal erred in law by applying the test of causation under s.91R(1)(a) when deciding whether the applicant’s claims of past persecution had a Convention relationship. He submitted that the section did not allow nor require this, and that the section requires the test of “essential and significant reason” to be applied only to the persecution referred to in the Convention definition adopted by s.36(2), which is necessarily only the persecution feared for the future. Counsel did not cite any authority in support of these propositions, and I am not aware of any.
In my opinion, the section should not be so construed. Rather, it must be understood in the light of the point made by the High Court in Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559, [1997] HCA 22, particularly at 575:
Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.
On this approach, the assessment of the likelihood of future persecution of the character covered by the Convention in a case such as the present necessarily involves a determination as to what happened in the past, both as to whether past harms happened and whether they had a Convention character. Refugee claims that the applicant will in the future risk similar events, or face persecution resulting from those past events, can then be assessed in terms of the Convention definition based upon the findings as to past persecution. In my opinion, s.91R(1) and (2) must be construed in its references to ‘persecution’ as encompassing findings as to claims of past persecution which are claimed to support findings as to future persecution covered by the Convention.
I therefore consider that the Tribunal made no error in the 5th sentence of paragraph 73, by characterising the harms encountered by the applicant arising from events in 2009 by reference to the ‘essential and significant’ test required by s.91R(1). The Tribunal’s reasoning in this respect was clearly directed at its further finding as to the risk of future Convention persecution arising from these events, which is found in the last sentence of paragraph 73. In my opinion, read fairly, the reasoning in the whole paragraph reveals no jurisdictional error of law.
I am therefore unpersuaded by any of the submissions presented in support of Ground 4.
Ground 2 also challenged the Tribunal’s reasoning in paragraph 73. It was faintly, if at all, addressed by counsel for the applicants. However, he pressed it in reply. As I understand the ground, although no authorities were cited, it contends that the Tribunal’s reasoning which applied the s.91R(1)(a) test of causation was flawed by ‘false dichotomy’ reasoning, which has been explained in Federal Court authorities which I recently applied in MZYRI v Minister for Immigration & Anor [2012] FMCA 396 at [47]‑[56]. My judgment in that case is subject to an appeal by the Minister, but I shall assume that I correctly identified the relevant principles, and correctly found that s.91R(1)(a) was not inimical to its application.
However, in my opinion, the present Tribunal was clearly alive to the possibility that there might be concurrent Convention and non‑Convention reasons for past and future persecution. It showed this expressly in its reference to “despite being accompanied by racial taunts”, before characterising the motives and reasons for the persecution as being “essentially and significantly about the employment dispute”. In my opinion, the Tribunal’s reasoning shows that it did not make the error contended under Ground 2.
Ground 3 is somewhat obscure, and the submissions of the applicant’s counsel appeared to traverse many different species of jurisdictional error. The focus of all of his submissions was the Tribunal’s reasoning in paragraph 75. In particular, its statement in relation to the applicant’s evidence about events affecting his first business conducted between 2002 and 2004, that:
The applicants make no claims (about that time) beyond vandalism, which in the Tribunal’s consideration, does not amount to serious harm.
On one reading of Ground 3, it contends that the Tribunal applied a legally erroneous proposition that in all circumstances “vandalism does not amount to serious harm” within s.91R(1)(b) and (2). However, the applicants’ counsel disclaimed such an interpretation of the Tribunal’s reasoning. In my opinion, this concession was correctly made. Although its reasoning in this sentence is compressed, and requires sympathetic ‘unpacking’, I do not consider that the Tribunal proceeded upon an opinion that ‘vandalism’ could never amount to serious harm. Rather, the Tribunal expressed a finding that the applicant’s evidence about vandalism at that time did not, in the judgment of the Tribunal, establish harm which should be characterised as ‘serious harm’ as defined.
Counsel’s principal argument was that this reasoning exhibits the same error of law of applying s.91R(1) to claims of past persecution as he submitted under Ground 4. However, I would reject these arguments for the same reasons given above.
Counsel’s further arguments in support of Ground 3 appeared to contend that the Tribunal’s assessment of the applicant’s claims of encountering ‘vandalism’ between 2002 and 2004 either misapprehended the applicant’s refugee claims, or made findings which were not open on the applicant’s evidence about these events. Although authority explaining why either of these errors would amount to jurisdictional error was not cited, I am prepared to accept that the former error might come within principles explained in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1, [2004] FCAFC 263, and that the latter error might (less clearly) come within principles identified in Minister for Immigration & Multicultural & Indigenous Affairs v VOAO [2005] FCAFC 50 based on Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, [1990] HCA 33 at 356.
The applicant’s evidence about the ‘vandalism’ was sparse. The visa statement said:
Applicant then open his own business in year 2002 – 2004 and joined venture business.
During his business venture, again in his area, he still must pay the “protection money” to the mob of people nearby his business area. Applicant had so much trauma in his life, whenever he sees lots of people, he shook and froze.
These people vandalised his business. Due too much pressure from the mob, no matter how many times they have reported to the authority, nothing has been done; at the end of the day, applicant decided to stop working in that area and move again.
There appears to have been no mention of these events at the hearing, although I cannot make a firm finding about this in the absence of a transcript.
In the applicant’s post‑hearing statement, he said:
From 2002 to 2004 I tried with a friend to open a business “Workshop and carwash”, but this only lasted two years. There was a group of local people who always came to extort “Security money” from us. If we refused their demands, they were not averse from chasing away our customers with coarse words and even often destroyed our equipment.
I accept that the Tribunal did not explain its conclusion that these events did not show persecution amounting to ‘serious harm’. This is not unsurprising, since these events were overshadowed in the presentation of the applicant’s claims to the Tribunal, where his focus was upon events in 1998 and 2009. However, in my opinion, the Tribunal sufficiently identified the applicant’s claims concerning events in 2002‑2004 in earlier paragraphs of its statement of reasons, and I do not accept that it did not address them in its finding at paragraph 75.
Nor do I accept that the Tribunal arrived at conclusions on the applicant’s evidence which reveal error of law, whether by misconstruction of s.91R(2), or by arriving at a conclusion which was unsupported by evidence, or by making a finding which is unreasonable within the principles of SZMDS (supra). In my opinion, the very shortness and vagueness of the applicant’s references to ‘vandalism’ invited and allowed the Tribunal to form its own impression of what had happened, and to express its conclusion tersely.
On the evidence before me, I am not persuaded that the Tribunal arrived at a finding which was not open to it as a matter of law. I consider that the submissions of the applicants’ counsel which sought to persuade me otherwise, by pointing to other elements in the applicant’s evidence which provided ‘context’ for his claims, showed nothing more than that the Tribunal arrived at a factual conclusion upon which minds might differ.
For all the above reasons, I am unpersuaded that any jurisdictional error was established by the submissions presented to me in support of Ground 3.
Since I have not upheld any of the grounds relied upon by the applicants I must dismiss the application.
Costs should follow the event, and I am unpersuaded that the present matter should attract an award of party/party costs exceeding the scale under Sch.1 Part 3 of the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 24 July 2012
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