Tong v Minister for Immigration and Multicultural Affairs

[2000] FCA 792

FEDERAL COURT OF AUSTRALIA

Tong v Minister for Immigration & Multicultural Affairs [2000] FCA 792

MIGRATION – protection visa – application for review of decision of the Refugee Review Tribunal affirming the decision of the delegate of the Minister refusing grant

Migration Act 1958 (Cth) s 476(4)

Federal Court Rules O 35 r 7

TJIN PENG TONG v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 227 OF 2000

EMMETT J
8 JUNE 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 227 OF 2000

BETWEEN:	TJIN PENG TONG APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	8 JUNE 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

1. The applicant pay the respondent’s costs.

1. The respondent inform the applicant of the provisions of O 35 r 7 of the Federal Court Rules at the following addresses:
              (a)       Level 2, 768 George St, Haymarket, Sydney, New South Wales;
              (b)       Room 1104, Tower 2, 600 Railway Pde, Hurtsville, New South Wales; and
              (c)       Room 318, Dixon House, 413-415 Sussex St, Sydney, New South Wales.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 227 OF 2000

BETWEEN:	TJIN PENG TONG APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	8 JUNE 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of Indonesia and arrived in Australia on 21 December 1998.  On 18 January, 1999 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs.  On 16 August 1999 a delegate of the Minister refused to grant a protection visa and on 7 September 1999 the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for review of that decision.  On 10 February 2000 the Tribunal affirmed the decision not to grant a protection visa.  The applicant by application filed on 15 March 2000, now seeks an order from this Court for review of the decision of the Tribunal.

2. The matter first came before me on 5 May 2000 when the applicant appeared in person, assisted by an interpreter.  On that day I made orders requiring the Minister to file and serve a bundle of relevant documents by 12 May 2000 and requiring the applicant to file and serve any affidavit material on which he intended to rely on or before 2 June 2000.  I also required the applicant to file and serve written submissions five working days prior to the hearing date, which I fixed for today.  When the matter was called on for hearing today, there was no appearance for the applicant. 

3. The application discloses two addresses for the applicant.  One at second floor, 768 George Street, Haymarket, Sydney, New South Wales the other at room 1104 Tower 2, 600 Railway Parade, Hurstville, New South Wales, 2220. 

4. The solicitor for the Minister endeavoured to serve the Minister’s submissions on the applicant.  I have before me an affidavit of Alan Kavanagh, deposing to his attempts to do so at the two addresses to which I have just referred.  At the first address the applicant was not known.  There was nobody present at the second address when the attempt was made to serve the submissions.  The occupants of adjoining premises did not recognise the name of the applicant. 

5. The applicant did not appear before the Tribunal, notwithstanding that he was given an opportunity to do so.  He was notified on 22 November 1999 of the proposed hearing date on 19 January 2000.  On 20 January 2000 the Tribunal received a facsimile communication from the applicant's then adviser, dated 11 January 2000.  The facsimile communication stated the applicant did not wish to attend a hearing. 

6. There is no reason for me to doubt that the applicant was aware of the hearing fixed for today, having regard to the fact that he was present in Court when I fixed the matter for hearing, and was assisted by an interpreter.  The Minister has asked me to hear the matter and dispose of it.  In the circumstances, I propose to do so. 

7. In his application for protection visa, the applicant stated that he left Indonesia because of continuous unrest and because his life was in danger.  He indicated that he feared being harmed because of his ethnicity.  However, the Tribunal considered that the application provided no details of the treatment alleged to have been suffered.  The Tribunal recorded that the applicant’s application for a protection visa indicated that he had travelled to Thailand, Singapore and Hong Kong three months before he came to Australia.  No explanation was given as to why the applicant returned to Indonesia after his trip if he feared persecution in that country.

8. The Tribunal considered that the applicant’s return to Indonesia suggested that he did not genuinely fear persecution in his country of nationality.  The Tribunal was therefore not satisfied that the applicant had suffered harm because of his ethnicity in the past.  The Tribunal also had some doubt that the applicant had a genuine subjective fear of persecution in Indonesia. 

9. The Tribunal accepted that Chinese Indonesians have often been the target of verbal abuse, are restricted from operating Chinese schools and may be discriminated against in some areas of employment.  However, the private sector is readily available to Chinese Indonesians seeking employment and there is a broad range of tertiary education institutions that Chinese Indonesians can attend.  The Tribunal considered, therefore, that while verbal abuse and the restrictions placed on ethic Chinese Indonesians amounted to discrimination, those acts of discrimination were not of such severity that they amounted to persecution within the meaning of the Refugees Convention.

10. The Tribunal accepted that much of the rioting that occurred in Indonesia in 1998 was fuelled by racist hatred.  The Tribunal was aware of reports of Indonesian Chinese being in the wrong place at the wrong time, and suffering injury and even death.  The Tribunal considered that those Chinese were the victims of a situation in which shopkeepers were targeted, spilling over into one of more general targeting of the ethnic Chinese population.

11. The Tribunal considered that there was a chance that any ethnic Chinese Indonesian might suffer harm, amounting to persecution, if he or she were caught up in the sporadic rioting that has occurred in Indonesia.  The Tribunal considered, however, that the most recent occurrence of riots in Indonesia appears to be random and sporadic in nature.  The Tribunal considered that the number of Chinese Indonesians who have been physically harmed or whose property has been destroyed in fact remains extremely small.

12. The Tribunal concluded that the overwhelming majority of Indonesians of Chinese descent continue to work and live as they always have, albeit with some degree of apprehension.  The Tribunal considered that it was significant that there have been no reports of anti-Chinese riots occurring in 1999.  In the light of the evidence before it, the Tribunal was of the view that, without something more, the chance of any individual Chinese Indonesian, such as the applicant, being harmed in a riot is remote.

13. The Tribunal found that the independent evidence to which reference was made in its reasons indicated that the Indonesian government has intervened to halt such violence, and has prosecuted perpetrators.  The Tribunal did not think that it could be said that the Indonesian authorities have tolerated ethnic violence, or failed totally to protect members of the ethnic Chinese community in such incidents.  While it is true that individuals have been harmed and property damaged and that, given the unpredictable nature of such events, that may often occur because the Indonesian military and police response can only occur after some damage has been done, the Tribunal considered that no state could ensure the complete safety of all of its citizens against all forms of harm, mistreatment, or even death.

14. The Tribunal acknowledged that the events of May 1998 in Jakarta were particularly widespread and brutal and that many Chinese and Indonesian individuals were harmed and their property destroyed before the authorities restored order.  The Tribunal took account of the fact that there is some speculation that those riots were organised or instigated by one faction of he military, in particular by Lieutenant General Prabowo Subianto.  The Tribunal noted however, that General Prabowo was subsequently dismissed from the army, indicating that his actions did not have the support of the central army command or of the Habibie Government.

15. The Tribunal also considered that news reports such as those of November and of December 1998 that were cited in its reasons, indicate that the government of Indonesia took strong action to quell civil disturbances.  In view of that and in view of the long history of President Wahid’s history of support for the ethnic Chinese community, the Tribunal was of the view that for the reasonably foreseeable future, adequate protection is available from the Indonesian authorities to Chinese Indonesians in response to the conduct of mobs in incidents of civil disturbance.

16. The Tribunal was therefore not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.  For those reasons, the Tribunal affirmed the decision not to grant a protection visa. 

17. The grounds of review specified in the applicant’s application filed on 15 March 2000, are as follows: 

    “1.  The decision was induced or affected by actual bias of the officer.
    2.  There was no evidence or other materials to justify the making of the decision.”

18. There is nothing in the reasons which suggests to me that the decision of the Tribunal was affected by bias.  The Tribunal observed, on a number of occasions, that had the applicant attended a hearing, the Tribunal would have put a number of questions to the applicant.  In particular, more information would have been sought concerning his allegations of persecution because of his ethnicity.  The Tribunal would also have endeavoured to inquire further as to whether the applicant did in fact have a genuine fear of persecution.

19. The applicant, in his application, in specifying the basis upon which he was aggrieved by the decision, made a number of substantive comments as follows:

    “1. I am a Chinese Indonesian.  Indonesian authorities can not provide effective protection to me.  There have been continuous unrest in the country and that as a Chinese person my life is in danger.  The native Indonesians are anti-Chinese.  They robbed and killed Chinese people.  The people are hostile and the government is corrupt and does not protect the Chinese.  Since the people in Indonesia have become poorer and poorer, they have become more violent and anti-Chinese.  The native Indonesians are jealous of the Chinese.  They want to eliminate us and non-Muslims.  The government blames the Chinese for the economic crisis in Indonesia.  The government and the police are all native Indonesians.  They are not willing to protect Chinese people.

    ………………………

    2.  On the letter for the final decision of my application from RRT, the officer provides a lot of reports of the fact that riots had been targeted to the Chinese and then reports of the fact that the others [sic] people also suffered at the riots.  He acknowledged the turmoil was threatening the safety of Chinese Indonesians.  However, he foresees that the government will take action to protect the Chinese Indonesians in the future.  And he emphasised that I had not been to the interview, that means the fear for persecution is not strong enough.  He made the decision on my application with bias.  I did not attend the interview because I did not receive the notice on time and did not have enough time for preparation for the interview and I was not allowed to arrange for another time for the interview by RRT.”

20. While that assertion is made in the application, there has been no evidence before me.  The notification of the hearing was dated 22 November 1999.  There is no reason to think it was not received by the applicant within a short time after that date.  In any event, as I have said, the applicant's adviser indicated, albeit ex post facto, that the applicant did not wish to attend the hearing.  I do not consider that the failure to take account of the matters to which the applicant refers in his application constitute actual bias, on the basis of the material that I have seen. 

21. The application goes on to say as follows:

    “[In] the final decision…the officer of the RRT mentioned ‘it has been noticeable that since the beginning of 1999, there have been virtually no reports of anti-Chinese riots.  Indeed, it was widely expected that the June 1999 general elections might be accompanied by anti-Chinese violence but this did not eventuate.’, the officer is wrong. 
    As a matter of fact, only in the last few months I have heard news from media that conflicts are still occurring, and two months ago, a Chinese Indonesian was carrying a native Indonesian by a three wheeled bike, they had an argument and a fight occurred, as a result, the native Indonesian was dead on the way to the hospital.  Then many native Indonesians started to attack the Chinese man, destroyed his home and then spread to other Chinese Indonesians’ homes.  The officer should not make the decision just on the basis of the good side of the ‘Independence [sic] Information’, he did not cover all Sides of it.”

22. Again, in the absence of any indication from the applicant as to the material that should have been given greater weight, it is impossible to form any conclusion that there was actual bias on the part of the Tribunal.  In any event, it is a matter for the Tribunal to decide what weight it gives to the material that it takes into account in making a decision. 

23. Finally, the applicant says in his application as follows:

    “[In the reasons the Tribunal says] ‘Mr Tong states that he left Indonesia because of the continuous unrest and because his life was in danger.  Mr Tong indicated that he feared being harmed because of his ethnicity.  However, Mr Tong has not provided any details of the treatment he has suffered because of his ethnicity.  Had Mr Tong elected to come a hearing, I would have sought more information from him in relation to this.  Furthermore, Mr Tong’s application for protection visa indicates that he travelled to Thailand, Singapore and Hong Kong 3 months before he came to Australia.  Mr Tong does not explain why he returned Indonesia after his trip, if he feared persecution in that country  His return to Indonesia suggested that he did not genuinely fear persecution in his country of nationality.  I would also have asked Mr Tong about this had he attended a hearing.’”

    Having referred to that part of the reasons, the applicant then goes on to say that the Tribunal made the decision with bias.

    “I could not apply for any sort of application in Thailand, Singapore and Hong Kong, where should I go to?  I have to return to Indonesia, and that is why I came to Australia because I could apply for a protection visa here.  The officer said I did not attend to the hearing.  I did not have sufficient time for the preparation, and I was not allowed to arrange for another time for the interview.”

24. Again, those matters are matters that it was possible for the applicant to put before the Tribunal had he attended the Tribunal.  I have already said that I consider that there is no material upon which I could conclude that the applicant was not given a fair opportunity to attend the hearing.  In the circumstances, I do not consider that the ground of actual bias has been made out. 

25. The second ground, that there was no evidence or other material to justify the making of the decision simply appears to me to be unsupportable. In the light of the material cited by the Tribunal, there was material upon which it could form the conclusion that it reached concerning the likelihood of danger to the applicant. I do not consider that the requirements of section 476(4) of the Migration Act 1958 (Cth) have been satisfied and accordingly I do not consider this ground has been made out.

26. Accordingly, I propose to order that the application be dismissed.  I also propose to direct the respondent to inform the applicant as soon as practicable at the two addresses referred to above and at the address referred to in the application to the Tribunal, of the provisions of Order 35 rule 7.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             16 June 2000

Counsel for the Respondent:	Mr D Jordan
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	8 June 2000
Date of Judgment:	8 June 2000