Ibrahim, Mustafa v Immigration & Multicultural Affairs [1998] FCA 802

FEDERAL COURT OF AUSTRALIA MIGRATION – application for a protection visa - refugee status – Indonesia – province of Aceh – claims to have been in hiding in Jakarta – evidence of interest shown in applicant by authorities – recent invention – internal flight principle – whether internal flight principle applies when persecution is by the State but is only carried out in one area of the entire country Migration Act 1958 (Cth) ss475 & 476 Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 Attorney-General of Canada v Ward (1993) 103 DLR (4th) 1

MUSTAFA IBRAHIM v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NG 568 OF 1997

EINFELD J

SYDNEY

10 JULY 1998

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 568 of 1997

BETWEEN: MUSTAFA IBRAHIM

Applicant

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

JUDGE: EINFELD J

DATE OF ORDER: 10 july 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. the application be dismissed 2. the applicant pay the respondent's costs of the proceedings

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 NG 568 of 1997

BETWEEN: MUSTAFA IBRAHIM

Applicant

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

JUDGE: EINFELD J

DATE: 10 july 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION Mustafa Ibrahim seeks an order of review under Part 8 of the Migration Act 1958 (Cth) (the Act) of a decision of the Refugee Review Tribunal (the Tribunal) made on 19 June 1997. The Tribunal determined that the applicant is not a refugee within the meaning of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol in that he did not have a well-founded fear of persecution in Indonesia. FACTUAL Background The applicant is an Indonesian national from the province of Aceh on the island of Sumatra. In 1988, while living in Aceh, he joined a separatist movement called Aceh Merdeka. His activities in the movement included helping in the production and distribution of a magazine and pamphlets and attending meetings. Members of his immediate family provided food and clothing to the separatists. The applicant's family was intimidated by the authorities to discourage their involvement in Aceh Merdeka and the applicant claimed that two of his relatives were killed by the Indonesian military because of their involvement. In 1989 the applicant came to the attention of the authorities in Aceh so he moved to Jakarta where he remained for six years until leaving for Australia in 1995. During this period he obtained his Indonesian identity card (KTP), attended a tertiary institution and was able to find casual work. He also maintained his involvement in Aceh Merdeka. The applicant arrived in Australia on 19 March 1995 and applied to what was then the Department of Immigration & Ethnic Affairs for a protection visa on 3 April 1995. The decision of the Minister's delegate to refuse the application was made on 4 October 1995 and the applicant applied to the Tribunal for a review of the decision on 30 October 1995. The Tribunal's decision was delivered more than a year and seven months later, on 19 June 1997, and on 18 July 1997 the applicant filed this application for an order of review in this Court. grounds of review The Tribunal decision is reviewable by this Court pursuant to section 475 of the Act. The grounds upon which a person aggrieved by a decision may seek a review of a decision are found in section 476: 476(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds: (a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed; (b) that the person who purported to make the decision did not have jurisdiction to make the decision; (c) that the decision was not authorised by this Act or the regulations; (d) that the decision was an improper exercise of the power conferred by this Act or the regulations; (e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision; (f) that the decision was induced or affected by fraud or by actual bias; (g) that there was no evidence or other material to justify the making of the decision. (2) … (not presently relevant) (3) The reference in paragraph (1)(d) to an improper exercise of a power is to be construed as being a reference to: (a) an exercise of a power for a purpose other than a purpose for which the power is conferred; and (b) an exercise of a personal discretionary power at the direction or behest of another person; and (c) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case; but not as including a reference to: (d) taking an irrelevant consideration into account in the exercise of a power; or (e) failing to take a relevant consideration into account in the exercise of a power; or (f) an exercise of a discretionary power in bad faith; or (g) any other exercise of the power in such a way that represents an abuse of the power that is not covered by paragraphs (a) to (c). (4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless: (a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist. Mr Ibrahim relied on the following grounds of review in his application: 1. The Tribunal erred in directing itself that there ought to be evidence before it showing that the applicant suffered confrontation with government authorities whilst living in Jakarta and that those authorities had enquired of his family as to his whereabouts before it was open to the Tribunal to find that the authorities were interested in the Applicant after 1989 which direction constitutes a ground of review within section 476(1)(d) and 476(3)(c) of the Migration Act 1958. 2. The Tribunal erred in finding that the Applicant advanced a claim, namely that he was hiding in Jakarta, in order to overcome a "difficulty set out in the Delegate's decision", namely that the Applicant remained in Jakarta for some 5 years without adverse attention, as that finding was an inference that was not open to the Tribunal, such error being a ground of review within section 476(1)(e) of the Act. 3. The Tribunal erred in that it failed to consider and determine the question whether the Applicant had a well-founded fear of persecution and, owing to such fear was unwilling to avail himself of the protection of his country of nationality and instead considered and determined whether the Applicant "faced a real chance of persecution if he were to reside outside of Aceh on returning to Indonesia", which error constitutes a ground of review within section 476(1)(e) of the Act. 4. The Tribunal erred in that it directed itself that if the Applicant could remain outside Aceh without suffering harm, those facts would amount to being within the protection of the Applicant's country of nationality which is a misdirection in law when the authorities of that country are the instigators of the persecutory conduct, which error is a ground for review within section 476(1)(e) of the Act.