SZURA v Minister for Immigration and Border Protection

[2015] FCA 1349

FEDERAL COURT OF AUSTRALIA

SZURA v Minister for Immigration and Border Protection [2015] FCA 1349

Citation:	SZURA v Minister for Immigration and Border Protection [2015] FCA 1349
Appeal from:	SZURA & Ors v Minister for Immigration & Anor [2015] FCCA 1539
Parties:	SZURA, SZURB and SZURC v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL
File number(s):	NSD 770 of 2015
Judge(s):	BUCHANAN J
Date of judgment:	2 December 2015
Legislation:	Migration Act 1958 (Cth)
Cases cited:	Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
Date of hearing:	19 November 2015
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	10
Counsel for the Appellants:	The first appellant appeared in person
Solicitor for the First Respondent:	A Markus of Australian Government Solicitor
Solicitor for the Second Respondent:	The second respondent filed a submitting notice

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 770 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZURA
First Appellant

SZURB
Second Appellant

SZURC
Third Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	2 DECEMBER 2015
WHERE MADE:	SYDNEY

THE COURT DIRECTS THAT:

1.The name of the second respondent be changed to Administrative Appeals Tribunal. 

THE COURT ORDERS THAT:

2.An extension of time in which to appeal be granted until 2 July 2015 and the draft notice of appeal filed on that day be taken to be the notice of appeal. 

3.The appeal be dismissed. 

4.The first appellant pay the first respondent’s costs as taxed if not agreed. 

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 770 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZURA
First Appellant

SZURB
Second Appellant

SZURC
Third Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE:	2 DECEMBER 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. As I propose to grant an extension of time in which to appeal in this matter, I will refer hereafter to the initiating parties as the appellants. 

2. The proposed appeal is against a judgment of the Federal Circuit Court of Australia (“the FCCA”) given on 5 June 2015 (SZURA & Ors v Minister for Immigration & Anor [2015] FCCA 1539). In that judgment the FCCA dismissed an application for judicial review of a decision of the Refugee Review Tribunal (“the RRT”) handed down on 6 June 2014 (the RRT is now the Administrative Appeals Tribunal).

3. The appellants had 21 days to appeal to this Court from the judgment of the FCCA.  There is no reason not to accept the affidavit evidence of the first appellant that she mistakenly thought she had 28 days in which they might appeal and she lodged the relevant application on the 27^th day.  No prejudice is occasioned to the Minister if an extension of time in which to appeal is granted.  Although the Minister contended that an extension of time should not be granted because it was futile to do so as the appeal could not succeed, that contention depends upon an evaluation of the merits of the proposed appeal.  Those merits might as easily be assessed if leave to appeal is granted. 

4. The claims for protection visas of the second and third appellants (the husband and child respectively of the first appellant) were included in the application for a protection visa lodged by the first appellant on 19 April 2013 and depended upon her claims being upheld.  The first appellant is a citizen of Indonesia who is ethnic Chinese.  She arrived in Australia on 10 November 2007 as a student.  On 29 July 2013, a delegate of the Minister refused to grant her a protection visa and she then applied to the RRT for review of that decision.  When the RRT affirmed the decision of the delegate, the appellants brought an application to the FCCA for judicial review of the RRT’s decision. 

5. The grounds pursued in this Court are the same matters as were argued in the FCCA.  An appeal to this Court will normally only succeed if relevant error is shown in the judgment of the FCCA.  In both this Court and the FCCA attention must be confined to the question of whether the RRT made a jurisdictional error.  The RRT recorded the following background facts: 

   18.The Tribunal finds the applicant to be a credible witness and accepts the following evidence she has advanced in support of her protection claims.  The applicant is ethnic Chinese and she grew up in [location] in Sumatra where her parents live.  The applicant has two brothers who live with her parents.  One brother attends school and the other helps a relative looking after a shop.  She has three sisters who are married and they live separately with their own families.  The applicant attended school in [location] from 1992 until 2005 when she completed high school.  After this she gained employment helping her relatives in their trading business.  In 2006 she went to live in Jakarta to look for work.  Through the introduction of a friend or relative she found work packing goods in a business and she lived in rented accommodation.  She remained in this employment until November 2007 when she came to Australia.  The applicant came to Australia at that time for the purpose of study.  Not long before she left Indonesia she married her husband who is also ethnic Chinese and lived with his grandmother in Jakarta.  At that particular time her husband was not employed. 

   19.In Australia, the applicant undertook and completed a business course.  She then commenced a course in tourism but could not complete it because she did not have enough money to pay the fees.  The applicant then found work looking after goods in a warehouse.  She gave birth to the couple’s first child in December 2009.  Her husband, from the time of his arrival in Australia, has undertaken a variety of different forms of work, all manual, including washing cars.  The department apprehended her husband for working without permission and they both ceased work from that time.  As stated above the applicant is pregnant and expects to give birth to the couple’s second child in July 2014. 

   20.At the Tribunal hearing, the applicant complained about having difficulties in Indonesia because she was ethnic Chinese.  She referred to the riots that took place in Indonesia in the late 1990’s.  She and her family remained inside the home for one day in fear of being harmed at that time.  The business where her father worked was looted.  Neither the applicant nor any member of her family was attacked during those riots or at any time in Indonesia.  On one occasion, when she was in high school, while travelling on a trishaw, Muslim men touched her legs, she screamed and they went away.  At school she was called names such as “Chinese” and believed she encountered discrimination when trying to find employment.  She complained about birth certificates recording if someone was ethnic Chinese. 

   21.When she was very young the applicant attended a church in Indonesia in her local area because they offered sweets to young children.  She ceased attending because her mother preferred that she attend a Buddhist temple and, in addition, that church was closed down while she was still living in Indonesia.  Not long after she arrived in Australia the applicant became a Christian following a call from God.  She and her husband have been regularly attending the Bethany church and they would seek to practice their religion on return to Indonesia.  When her first child was born the applicant told her family in Indonesia that she could become a Christian and they were not happy with that because they are Buddhists.  From that time they have not had frequent contact.  They have remained in contact, however, and the last time that occurred was approximately eight months ago. 

   … 

   22.The applicant fears harm in Indonesia because she is ethnic Chinese.  In her protection visa application form she expressed fears for the safety of her family on that ground.  In written submissions the representative stated that the riots that took place in Indonesia in the late 1990’s were a traumatic event to the applicant as she and her family were in fear of harm.  In her protection visa application form the applicant said she witnessed the riots.  The applicant told the Tribunal she was afraid there could be riots again in the future in which Chinese will be harmed.  In this respect, in her protection visa application form, the applicant said she was afraid that her home could be robbed or bombed.  She did not trust the Indonesian government because they treated Chinese like second class citizens and they were Moslems and corrupt. 

   (Footnote omitted.)

6. The RRT made the following further observations: 

   25.The Tribunal accepts that there is discrimination against ethnic Chinese in terms of dealing with bureaucracy as mentioned in the country information and probably also within Indonesian society.  The Tribunal accepts the applicant was also called names at school but none of these matters prevented her from obtaining a full school education.  While she complained that she encountered discrimination, she nevertheless was able to find employment both in her native city and also in Jakarta.  Country information indicates that ethnic Chinese play a major role in the Indonesian economy and so would afford a means of employment for the applicant who is also ethnic Chinese.  She complains about the Indonesian government recording one’s ethnicity on a birth certificate and alleges ethnic Chinese are treated by them like second class citizens and that the government is corrupt.  Country information indicates that the government has taken steps to enhance the rights of Chinese and, as stated above, whatever discrimination prevails, this did not prevent the applicant from being able to undertake school education and also to be able to find accommodation and employment in Indonesia. 

   26.The applicant fears a recurrence of the riots that occurred in Indonesia in the late 1990’s but available country information indicates that such violence has not been repeated and it occurred now many years ago.  The Tribunal appreciates that the applicant and her family would have feared for their safety at that time but they were never attacked or harmed themselves.  The only occasion on which the applicant was ever physically harmed in Indonesia was the occasion when she was at school and she was touched on the legs by some Moslems who then ran away.  The representative and the applicant claimed in her protection visa application that this caused her anxiety and psychological damage and she told the delegate she did not go out of the house to overcome that.  However, the applicant continued her life in Indonesia after that incident and told the Tribunal she did not ever see a psychologist or a doctor in Indonesia.  She has seen a doctor in Australia but that is with respect to her pregnancy.  At any rate, whatever anxiety or psychological harm she suffered in Indonesia, it was not of any severity that prevented her from undertaking education and employment there. 

   …

   28.The applicant claimed to the Tribunal that she would not be able to practice her religion in Indonesia because there were many cases where churches had been closed or attacked.  To the delegate she indicated that she had attended a Protestant and also Pentecostal Church in Australia.  In written submissions the representative made broad claims about Christians in Indonesia, including in the area where the applicant lived with her family, suffering harassment and violence.  According to country information mentioned earlier in this decision, there are approximately 22 million Christians living in Indonesia; in more recent times Christian groups have reported an increase in attendance and the majority of religious communities operate openly with few restrictions.  According to this information there have been instances of attacks on religious minorities in Indonesia as well as attacks against churches and church closures.  However, considered in the context of the number of churches in Indonesia and the number of Christians there, as indicated by this country information, such incidences are still relatively few.  The Tribunal discussed this country information with the applicant at the hearing and it was put to her that, in the light of that information, the risk of her suffering serious harm in Indonesia on the basis of her religion including being unable to practice her religion was remote.  In response, the applicant said that the previous week a priest was beaten in Indonesia and she felt Indonesian authorities would not protect her in this respect.  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. 

   …

   30.The applicant told the Tribunal that the family are not happy about her conversion to Christianity but she did not claim to fear harm on that ground.  Because of her conversion, contact with her family has been less frequent, but, she did not claim that they have ever, for example, threatened to harm her.  More generally, the applicant claimed to the Tribunal that she was afraid for her children because they do not speak Indonesian and private school fees were too high.  However, the applicant’s first child is only four years old and she is currently pregnant with her second child.  They are young enough to be able to learn the Indonesian language and the applicant and her husband will be able to seek employment to pay whatever fees are required for school tuition.  In her protection visa application form the applicant said she was afraid she would be targeted by Moslems because she had a young daughter; Chinese children had been killed in the past.  This claim appeared to again be a reference to violence against Chinese during riots in the late 1990’s which has not since been repeated.  Accordingly, the Tribunal rejects these claims. 

7. The RRT made the following findings about claims for a protection visa on Convention grounds and complementary protection grounds: 

   33.The Tribunal has also considered cumulatively the applicant’s ethnicity, religion, strained relationships with her own family as well as the other general (not specifically Convention related) claims that have been put before the Tribunal.  However, even considered cumulatively, the Tribunal remains of the view that there is not a real chance the applicant will suffer serious harm in Indonesia.  The applicant’s husband and her first born child applied for protection as members of the applicant’s family unit who did not have their own protection claims.  The applicant’s husband did not give evidence at the Tribunal hearing.  The Tribunal has, as set out above, also considered the risk of harm to them according to the claims that were advanced by the applicant and the representative about that.  For, essentially, the same reasons the Tribunal finds that there is not a real chance the applicant will suffer serious harm in Indonesia, it also finds that there is not a real chance the applicant’s husband and child will suffer serious harm.  The applicant, her husband and child do not hold a well founded fear of persecution based on any convention ground.  

   … 

   34.With respect to the complementary protection criterion, for the same reasons the Tribunal finds there is not a real chance the applicant, her husband and child will suffer serious harm in Indonesia, the Tribunal also finds that there is not a real risk they will suffer significant harm.  In summary, while ethnic Chinese may encounter discrimination in Indonesia they play a major role in the economy; the government has taken steps in law to enhance their rights and the violence of the late 1990’s has not been repeated.  Based on the country information mentioned earlier in this decision the Tribunal considers that the risk of the applicants suffering significant harm because they are Chinese Christians is also remote.  The applicant’s family disapprove of her conversion but she did not claim she will suffer harm on that ground.  Other claims about the children not speaking Indonesian; concerns about finding accommodation, employment and being able to pay for school fees do not demonstrate there is a real risk the applicants will suffer significant harm in Indonesia. 

   35.While the applicant was recently assessed as suffering physically and mentally during her pregnancy she will return to Indonesia with the support of her husband who, in the first instance, will be able to seek employment and secure accommodation for the family in [location] the applicant’s native area, or, in Jakarta, where they both lived before coming to Australia.  Should the applicant continue to be restricted physically in any way, due to her education in Australia, she will return to Indonesia with skills to seek work in employment that does not require manual labour as such.  The risk of the applicant, her husband and child suffering significant harm on any of these grounds is remote.  Even when all of the grounds advanced on which it was claimed the applicants would suffer harm in Indonesia are considered cumulatively, the Tribunal remains of the view that there is not a real risk they will suffer significant harm.  Overall, there are not substantial grounds for believing that, as a necessary and foreseeable consequence of their removal from Australia to the receiving country, Indonesia, there is a real risk that the applicants will suffer significant harm. 

8. These findings represented findings and conclusions about the merits of the appellants’ claims for protection visas.  They were challenged in the FCCA on the basis that the RRT misapplied principles stated in various cases by the High Court, including Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559. The reasoning of the FCCA about those contentions is, with respect, compelling. There is no need to repeat it.

9. No jurisdictional error was identified to the FCCA.  No jurisdictional error has been identified or established in the present appeal.  There is no reason to doubt the correctness of the judgment of the FCCA. 

10. The application for an extension of time in which to appeal will be granted, but the appeal must be dismissed.  It is appropriate to dismiss it with costs. 

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated:       2 December 2015