SZURA v Minister for Immigration

[2015] FCCA 1539

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZURA & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1539

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error – allegation that there was no evidence to support the Tribunal’s finding or that the finding was irrational – allegation in the alternative that even if the risk of harm occurring to the first applicant for reasons of Christianity was remote, it did not necessarily follow that the first applicant did not hold a well-founded fear of persecution – open to the Tribunal to find there was no well-founded fear of persecution – no jurisdictional error – application dismissed.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), s.44(1)
Constitution, s.75(v)

Migration Act 1958 (Cth), ss.36, 474, 476

Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Minister for Immigration & Border Protection v SZSCA (2014) 89 ALJR 47
Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration & Ethnic Affairs v GuoWei Rong (1997) 191 CLR 559
Re Minister for Immigration & Multicultural Affairs; ex parte S20/2002 (2003) 77 ALJR 1165
Shop, Distributive and Allied Employees Association v National Retail Associationand Another(No 2) [2012] FCA 480
SZSMF v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCA 931

First Applicant: SZURA

Second Applicant: SZURB

Third Applicant: SZURC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1886 of 2014

Judgment of: Judge Smith

Hearing date: 16 April 2015

Date of Last Submission: 16 April 2015

Delivered at: Sydney

Delivered on: 5 June 2015

REPRESENTATION

Counsel for the Applicants: Mr B. Zipser

Solicitors for the Applicants: A Lim & Partners

Counsel for the Respondents: Mr M.J. Smith

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1886 of 2014

SZURA

First Applicant

SZURB

Second Applicant

SZURC

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the second respondent (“Tribunal”) dated 6 June 2014. The Tribunal affirmed a decision of a delegate of the first respondent (“Minister”) to refuse to grant the applicants protection visas.

2. The first applicant is a citizen of Indonesia who arrived in Australia on 10 November 2007 as a student. On 19 April 2013 she lodged an application for a protection visa on the basis that she feared harm in Indonesia for reasons of her ethnicity, namely Chinese, and her religion, Christianity. The second applicant is the first applicant’s husband. The third applicant is the child of the first two applicants. The second and third applicants were included in the application for a protection visa on the basis that they were members of the family unit of the first applicant. As they did not make claims to be owed protection obligations by Australia and the issues in this case turned upon questions relating to such obligations, it is convenient to refer to the first applicant simply as the applicant.

3. On 29 July 2013 a delegate of the first respondent made a decision to refuse to grant the applicant a protection visa. The applicant then applied to the Tribunal for review of that decision. On 4 June 2014 the applicant attended a hearing conducted by the Tribunal by telephone. On 6 June 2014 the Tribunal made a decision to affirm the decision of the delegate.

Tribunal’s decision

1. The Tribunal found that the applicant was a credible witness and accepted that:

   a)the applicant was ethnic Chinese and had grown up in Palembang in Sumatra where her parents live;

   b)after completing high school the applicant had gone to live in Jakarta to look for work in 2006 and remained in employment until November 2007 when she came to Australia for the purpose of study;

   c)the applicant could not complete a course in tourism in Australia because she did not have enough money to pay the fees;

   d)the applicant gave birth to her first child in December 2009;

   e)the applicant’s husband had undertaken a variety of forms of manual work in Australia until he was apprehended by the Department of Immigration for working without permission;

   f)the applicant had encountered difficulties in Indonesia because she was an ethnic Chinese and she and her family had had to remain inside their home during the 1990s for one day in fear of being harmed in riots that took place at that time. The business where her father worked was looted, however, neither she nor any member of her family was attacked during those riots or at any time in Indonesia;

   g)on one occasion when the applicant was in high school and travelling on a trishaw, Muslim men had touched her legs but left after she screamed;

   h)the applicant had been called names at school such as “Chinese” and believed that she had encountered discrimination when trying to find employment;

   i)when the applicant was very young she attended a church in Indonesia because they offered sweets to young children but that she had ceased attending because the mother preferred that she attend a Buddhist temple and that the church was closed down;

   j)not long after she arrived in Australia, the applicant became a Christian following a call from God, and with her husband, had been regularly attending the Bethany Church and would seek to practice their religion on return to Indonesia; and

   k)when the applicant told her family in Indonesia that her first child might become a Christian they were not happy because the family are Buddhists and that since that time, she had not had frequent contact with her family although they did have some contact.

2. The Tribunal then considered whether, on the basis of its findings of fact, the applicant had a well-founded fear of persecution in Indonesia. In this respect, while it accepted that there was discrimination against ethnic Chinese in terms of dealing with bureaucracy and also within Indonesian society, the Tribunal found that the applicant had been able to find employment both in her native city and in Jakarta. The country information before it indicated that the ethnic Chinese play a major role in the Indonesian economy and so would afford a means of employment for the applicant. The discrimination experienced by the applicant in the past had not prevented her from being able to undertake school education and also to be able to find accommodation and employment in Indonesia.

3. The Tribunal also noted that, while the applicant feared a recurrence of the riots that had occurred in Indonesia in the late 1990s the country information indicated that such violence had not been repeated and had not occurred now for many years.

4. The Tribunal noted that there had been instances of attacks on religious minorities in Indonesia as well is attacks against churches and church closures however, considered in the context of the number of churches in Indonesia and the number of Christians there, such incidents were relatively few. While it acknowledged that attacks on Christians take place in Indonesia, the Tribunal was not satisfied that that was occurring on a scale and at a frequency that indicated the risk of this happening to the applicant was anything more than remote.

5. The Tribunal then considered a number of minor matters before considering the applicant’s claims relating to ethnicity, religion and strained relationships with her family on a cumulative basis together with the other general matters. Having done so, the Tribunal concluded that there was not a real chance that the applicant would suffer serious harm in Indonesia and that neither she, nor her husband and child held a well-founded fear of persecution based upon any Convention ground.

6. Finally, the Tribunal found that there was not a real risk that the applicant or her husband or child would suffer significant harm as a necessary and foreseeable consequence of their removal from Australia to Indonesia. For those reasons, the Tribunal was not satisfied that the applicant, her husband, or her child satisfied the criteria for the grant of a protection visa and so affirmed the decision of the delegate.

Consideration

1. There are two grounds in the application however, the applicant only pressed the second ground. That ground is:

   The Tribunal, at paragraph 11 of its decision, referred to the number of violent attacks on religious minorities, the number of violations of religious freedom and incidents of religious intolerance, and the number of attacks on churches in recent years in Indonesia. The scale and frequency of these incidents was such that:

   a)The Tribunal erred in paragraphs 28 and 29 of its decision in finding that the risk of such incidents happening to the applicant was remote.

   b)The Tribunal erred in paragraph 32 of its decision in finding that there was not a real chance that the applicant would suffer serious harm because she was Christian. The Tribunal misconstrued the real chance test.

2. On its face, the gist of this ground appears to be that it was not open on the material before the Tribunal for it to find that the risk of harm occurring to the applicant for reasons of her Christianity was remote and as a consequence that there was no real chance that she would be persecuted for that reason.

3. In her written submissions, the applicant made two alternative contentions: first, that there was no evidence to support the Tribunal’s finding or that the finding was irrational; and secondly, that even if the Tribunal had not erred in its finding of remoteness, it did not necessarily follow that the applicant did not hold a well-founded fear of persecution. Mr Zipser, who appeared for the applicants, clarified that no issue was taken with the finding in [32] of the Tribunal’s reasons in connection with the ability of the applicant to subsist on return to Indonesia.

4. Before turning to the factual material upon which the Tribunal based its decision, it is worth noting the limits on the jurisdiction of this Court, particularly as they relate to the ground relied on by the applicant.

5. First, the jurisdiction of this Court in relation to migration decisions, such as that of the Tribunal, is provided for by s.476 of the Act. That jurisdiction is the same as the jurisdiction of the High Court under s.75(v) of the Constitution. That, in light of the operation of s.474(1), means that this Court may only grant a remedy by way of constitutional relief where the decision is affected by jurisdictional error. It is neither easy, nor necessary for present purposes, to accurately describe the scope of what might constitute jurisdictional error. It suffices to say that an error which materially affects the exercise of the decision-maker’s jurisdiction (or, put another way, the performance of its duty) is capable of constituting a jurisdictional error.

6. It may be noted in passing that one consequence of the nature of this Court’s jurisdiction is that care must be taken in reliance on propositions arising in different jurisdictional contexts. One example is the distinction between questions of fact and law (which has considerable significance in appeals from the Administrative Appeals Tribunal to the Federal Court) or errors of fact and errors of law (as to which, see Re Minister for Immigration and Multicultural Affairs; ex parte S20/2002 (2003) 77 ALJR 1165 at 1175-1176 [53]-[60] per Gummow and McHugh JJ). Justice Robertson made a similar comment in Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99 at 128 [99].

7. In this case, the Tribunal’s duty was to review the decision of the delegate. That meant, in short, that the Tribunal had to determine on the material before it whether the applicant met the criteria for the grant of a protection visa. That satisfaction had to be arrived at reasonably, that is to say, not only in good faith and upon a proper understanding of the law to be applied, but also that it be based upon findings and inferences of fact that were open on the material.

8. To say that a finding of fact is open on the material is no more than to say that there was some evidence or logical basis to support that finding. It is important to note, however, that there need only be a skerrick of evidence that supports a finding of fact in order for that finding to be open on the material: Shop, Distributive and Allied Employees Association v National Retail Associationand Another (No 2) [2012] FCA 480 at [31] per Tracey J citing Aronson, Dyer and Groves, “Judicial Review of Administrative Action” (Fourth Edition) at 259; Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at [575] per Weinberg J.

9. It is equally important to note that, although the Court may examine findings of fact in order to determine whether the Tribunal has fallen into jurisdictional error, it is not entitled to enter into the merits of the decision. In an often quoted passage of Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36:

   The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

10. The Court will enter into the merits of a decision if it determines what findings of fact ought to have been made except in circumstances where only one particular finding could have been made.

11. With those brief comments in mind it is necessary to turn to the material that was before the Tribunal.

12. The applicant relies on the material referred to by the Tribunal at [11] of its statement of reasons. That paragraph read:

    Indonesian rights group the Setara Institute of Democracy and Peace reportedly recorded 216 cases of violent attacks on religious minorities in 2010, 244 cases in 2011 and 264 cases in 2012. Another Jakarta-based group, the Wahid Institute, reportedly recorded 64 violations of religious freedom and 134 incidents of intolerance in 2010, and 92 violations of religious freedom and 184 incidents of religious intolerance in 2011. In 2010 the International Crisis Group reported that attacks against churches had increased. More recently in 2013 Human Rights Watch stated that more than 430 of Indonesia’s 59,000 churches have been attacked, closed down or burned down since 2004.

13. In addition, the applicant submits that “there was a fair amount of evidence before the Tribunal concerning attacks against Christians and churches in the years up to 2013.” She submitted that that evidence included the following:

    ·    demonstration to protest construction of church in Plaju in 2009;

    ·    destruction of closing down of over 12 churches since 2002;

    ·    bomb discovered in church in Medan;

    ·    destruction of furniture and fittings in another church;

    ·    Islamic radicals closing down seven churches in one day in Java and Sumatra;

    ·    forced conversion of Christians between 1999 and 2001;

    ·    execution of three Catholic citizens in Sulawesi in 2006;

    ·    beheading of three Christian schoolgirls in 2005;

    ·    existence of violent Islamic militias that carry on attacks against Christians;

    ·    Muslim rioters severely vandalised churches in Central Java in 2011;

    ·    attack on congregants during church service in Bekasi in 2010;

    ·    failure of state protection in Indonesia documented in paper published by the Tribunal in May 2007;

    ·    25 churches destroyed to varying degrees across Indonesia in period covered by 2003 US State Department report;

    ·    bombing attacks against members of Indonesian Methodist Church in Medan;

    ·    bomb explosion in church in Medan in 2002;

    ·    closing of at least 28 churches in Indonesia by hard-lined Muslim groups in period covered by USDOS HR Report – Indonesia 2011;

    ·    between 216 and 264 “violent attacks on religious minorities” in each year between 2010 and 2012;

    ·    an increase in attacks against churches in lead up to 2010;

    ·    attacks against more than 430 of Indonesia’s 59,000 churches between 2004 and 2013.

    (Court Book references omitted)

14. The applicant does not suggest that the Tribunal failed to take into account the material referred to in the previous paragraph. Indeed its findings at [11], at least insofar as they refer to more recent events, are consistent with that material. Rather, the applicant takes issue with the conclusion drawn by the Tribunal from that material. In particular, she takes issue with the following finding at [28]:

    … The Tribunal acknowledges that attacks on Christians take place in Indonesia but the Tribunal is not satisfied that this is occurring on a scale and at a frequency that indicates the risk of this happening to the applicant is anything more than remote.

15. The applicant argues that there was no evidence to support the finding that the risk of anything happening to the applicant was more than remote and that the finding was irrational.

16. In my view, both submissions are incorrect and the applicant is inviting the Court to enter into the merits of the Tribunal’s findings of fact. Several matters point to this conclusion. First, the Tribunal had before it information to the effect that there were 22 million Christians living in Indonesia and that the Indonesian Constitution protected religious freedom and the Ministry of Religious Affairs has extended official status to Catholicism and Protestantism. In addition, there was material, apparently accepted by the Tribunal, to the effect that Christian groups reported that there had been a surge in attendance and adherence and the majority of Indonesia’s diverse religious communities operated openly with few restrictions. That material was important in the assessment of whether or not the applicant’s fear of persecution was well-founded. It was the context in which the Tribunal was required to consider the number of attacks on Christians and places of worship that it accepted had occurred.

17. There is a logical connection between the probability of an event occurring to a member of a group and the size of that group. That is particularly so, when there was nothing on the material to distinguish one member of the group from another. In other words, the applicant did not make any claim that any of her characteristics or her future probable conduct would mean that she was more likely to be harmed as a result of anti-Christian sentiment than any other Christian in Indonesia.

18. Similar reasoning was found to be legally open by Buchanan J in SZSMF v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCA 931. In that case, the Tribunal accepted that violent incidents occurred around the time of elections in the applicant’s country of nationality. It also accepted that the applicant, if he were to return, may be involved in campaigning for a particular candidate at future elections. However, it found that, having regard to the very large number of people involved in election campaigns in that country, the chance of any individual campaign worker like the applicant, being affected by election-related violence was very remote.

1. The appellant argued that the Tribunal had engaged in the form of calculation which was not faithful to the requirement to assess whether the appellant had a well-founded fear of persecution. Justice Buchanan rejected that characterisation of the Tribunal’s approach and found that the Tribunal had plainly assessed that the risk of persecution of the appellant was too slight to represent a real chance of persecution and that any fear of persecution which the appellant might subjectively hold was not well-founded. His Honour said, at [15]:

   … It is not the function of this Court, and was not the function of the FCCA, to make an assessment about those matters.

2. Secondly, there is also a logical connection between the likelihood of such a group member being harmed and the frequency with which other members of the group had been harmed in the past.

3. In light of those considerations, it was open to the Tribunal to conclude that the chance of the applicant being harmed as a result of anti-Christian sentiment was remote. In other words, there was evidence to support that finding and thus no logical basis for it.

4. The applicant’s alternative argument is that even if it was open for the Tribunal to find that the chance of persecution was remote then it did not necessarily follow that the applicant did not hold a well-founded fear of persecution. This argument is based upon three matters: first, although Mason CJ and Dawson J in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 (“Chan”) used the word “remote” in their discussion of the proper meaning of the term “well-founded fear of persecution”, McHugh J in that case did not; secondly, nor did the High Court in Minister for Immigration & Ethnic Affairs v GuoWei Rong (1997) 191 CLR 559 (“Guo”); and thirdly, the Court in Guo said at 572:

   … Chan is an important decision of this Court because it establishes that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. But to use the real chance test as a substitute for the Convention term “well-founded fear” is to invite error… Nevertheless, it is always dangerous to treat a particular word or phrase as synonymous with a statutory term, no matter how helpful the use of that word or phrase may be in understanding the statutory term… A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.

5. None of those propositions, even taken together, supports the conclusion that the Tribunal erred in this case. There can be no question that the Tribunal focused upon the correct test. Its conclusion in respect of the criterion in sub-s.36(2)(a) was that the applicant, her husband and child did not hold a well-founded fear of persecution based on any Convention ground: [33]. That conclusion was expressed in the precise terms of Article 1A(2) of the Refugees Convention[1]. In arriving at that conclusion, the Tribunal assessed “whether there is a real chance that the applicants will suffer serious harm in Indonesia”. There is no question that that is a correct approach to the issue raised by the definition of a refugee in the Convention: see Minister for Immigration & Border Protection v SZSCA (2014) 89 ALJR 47 at [15] per French CJ, Hayne, Kiefel and Keane JJ. Nor is there any real question that it was relevant for that Tribunal to ask whether the risk of harm was remote: Chan at 389 per Mason CJ, at 398 per Dawson J. The fact that the word “remote” was not used by other judges in Chan or by the Court in Guo does not alter that. The applicant was unable to refer to any authority to support the proposition that it did.

   [1] The Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967)

6. The applicant’s reliance on the dictionary definition of the word “remote” (namely, “far-fetched”) did not assist her argument. That reliance went no further than to employ a synonym for a word that is, in turn, merely epexegetic of the critical phrase: “well-founded”.

7. The applicant argued that the Court was entitled to determine whether there was a well-founded fear of persecution in light of the Tribunal’s findings. This argument was based on the proposition derived from the decision in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, that the “question of whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law”. It was argued that whether the Tribunal’s findings fell within the phrase “well-founded fear of persecution” was therefore a question of law and one that could be resolved by the Court.

8. As I understood it, however, the argument went so far as to suggest that the Court should engage in an element of fact-finding. With respect, the argument is based on flawed logic. First, as explained above, care must be taken to employ propositions that have been developed in particular jurisdictional contexts. The Court in Pozzolanic was considering an appeal from a single judge of the Court who decided an appeal from the Administrative Appeals Tribunal. Appeals from that Tribunal were restricted to appeals “on a question of law”: s.44(1) Administrative Appeals Tribunal Act 1975 (Cth). The issue here is whether there was jurisdictional error. Secondly, the issue for the Tribunal was not whether the applicant had a well-founded fear of persecution, although that question did arise before it. Rather, the ultimate question for the Tribunal was whether it was satisfied that the applicants met the criteria for the grant of a protection visa. The Court cannot conclude that the Tribunal was satisfied of something when it said that it was not. On the other hand, the Court can, and must, determine whether that satisfaction was affected by relevant error.

9. In any event, those questions do not arise. On the authority of Chan, once the Tribunal found that the risk of the applicant facing harm for reasons of her Christianity was remote it was well and truly open (if not inevitable) for it to find that there was no well-founded fear of persecution and so to be satisfied that the applicant did not meet the criteria for the grant of a protection visa.

Conclusion

1. For those reasons, there was no jurisdictional error in the Tribunal’s decision. The application must be dismissed with costs.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date: 5 June 2015