FEDERAL COURT OF AUSTRALIA Tjoanardi v Minister for Immigration & Multicultural Affairs [2000] FCA 1012 MIGRATION - application for an order for review of decision of the Refugee Review Tribunal pursuant to Part 8 of the Migration Act 1958 (Cth) - whether the Refugee Review Tribunal erred in law by failing to comply with s430 of the Migration Act 1958 (Cth) - whether the Refugee Review Tribunal failed to refer to findings on material questions of fact in its reasons for decision - allegation of bias - whether findings of the Refugee Review Tribunal adverse to the applicant were affected by actual bias Migration Act 1958 (Cth) s430 Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845 applied Jayawardene v Minister for Immigration & Multicultural Affairs [1999] FCA 1577 referred to Xavier v Minister for Immigration and Multicultural Affairs [2000] FCA 927 followed MEDIANA TJOANARDI v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V 34 of 2000 MARSHALL J MELBOURNE 27 JULY 2000 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 34 of 2000 BETWEEN: MEDIANA TJOANARDI APPLICANT AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: MARSHALL J DATE OF ORDER: 27 JULY 2000 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs, including reserved costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 34 of 2000 BETWEEN: MEDIANA TJOANARDI APPLICANT AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: MARSHALL J DATE: 27 JULY 2000 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 This is an application for an order for review pursuant to Part 8 of the Migration Act 1958 (Cth) ("the Act"). The applicant, Ms Tjoanardi, has applied to the Court to review a decision of the Refugee Review Tribunal ("the RRT") made on 7 January 2000 to deny her a protection visa. Factual background 2 Ms Tjoanardi is a citizen of the Republic of Indonesia and is of Chinese ethnicity. She departed Indonesia on 9 November 1996 and spent time in China and Hong Kong before entering Australia on 7 July 1997. Ms Tjoanardi applied for a protection visa on 30 June 1998. That application was refused by a delegate of the respondent on 14 August 1998. An application to review the decision of the delegate was received by the RRT on 11 September 1998. 3 Ms Tjoanardi claimed that with the assistance of her father, she had been a successful businesswoman in Indonesia. She further claimed that in October 1996 some gangsters came to her shop, kidnapped her, took all her valuables and raped her. She also stated that during the anti-Chinese riots in Jakarta in May 1998, two properties owned by her father were burned and her businesses were ransacked and burned. Other members of her family were similarly affected. The RRT's findings 4 The RRT found that if Ms Tjoanardi was kidnapped and raped, "it was as a result of a random criminal act and was not on account of her Chinese ethnicity". The RRT also found that Ms Tjoanardi's delay in applying for refugee status showed that she did not have a well-founded fear of returning to Indonesia on account of her ethnicity. 5 The RRT accepted that the May 1998 riots were "particularly violent and were directed at Chinese". However, it concluded that: "… whilst there have been riots and demonstrations in Indonesia since May 1998, the anti-Chinese riots on the scale of those that occurred in May 1998 have not been repeated. Since that time many of the demonstrations have involved students. Religious violence and at times anti-Chinese has continued in Ambon. There is an independence movement in Aceh. East Timor is no longer part of Indonesia. There have also been significant development (sic) in Indonesian society since the May 1998 riots with a new government and president. The applicant has made claims that her family has been the victim of shop burnings and even some of her family members died during the riots. It may be that this is the case. The applicant herself was not present in Jakarta at this time. Such events occurred in the context of widespread violence that occurred over eighteen months ago. Whilst the Tribunal accepts that there has been discrimination against ethnic Chinese that at times has erupted into violence, on the basis of the above information, the Tribunal concludes that the violence is sporadic and is often directed at property, although as the applicant points out in May 1998, there were rapes and people were killed, often in building fires. Nonetheless the Tribunal is satisfied that there have not been anti-Chinese riots in Jakarta for the last eighteen months. When this is considered together with the changes in leadership and the statements of the new leaders, the Tribunal considers that there is no real chance in the reasonably foreseeable future that there will be further anti-Chinese riots on a similar scale in Jakarta. The Tribunal considers that the statements of the leaders indicates the resolve of the government to protect Chinese citizens from such occurrences. Indeed the recent events in Indonesia have been momentous and have occurred without there being any further anti-Chinese riots. The remaining risk factor mentioned by DFAT above is economic recovery. However it is not possible to predict with any certainty exactly what will occur in the future if the present government fails to overcome Indonesia's difficulties. What can be said though is that the parliament for the first time in recent history contains numerous groups which will go some way towards preventing the problems of 1998 re-appearing. On the basis of the above information the Tribunal is satisfied that the prospect of there being further anti-Chinese riots in Jakarta in the reasonably foreseeable future and of the applicant being caught up in any such further riots is remote. The Tribunal finds that there is no real chance that the applicant will face harm serious enough to amount to persecution because of her Chinese ethnicity should she now return." Competing Contentions (i) The s430 Issue – re October 1996 events 6 Mr Krohn, of counsel, appeared for Ms Tjoanardi. He submitted that the RRT was in breach of its obligations under s430 of the Act because it did not clearly set out its findings concerning whether Ms Tjoanardi suffered abduction, repeated rape and robbery on or about 10 October 1996. Ms Kennedy, of counsel, appeared for the respondent. She submitted that there was no obligation on the RRT to make specific findings on those matters given that it had found that the attack on Ms Tjoanardi, if it occurred, was not for a Convention based reason. 7 Mr Krohn further contended that the finding that, "there is no evidence from the applicant's account of the circumstances that the perpetrators were trying to punish her for being Chinese", was a wrong finding. Ms Kennedy's response was that the RRT, having made a specific finding that the attack was not on account of Ms Tjoanardi's ethnicity, was under no obligation to refer to evidence that undermined that finding. 8 Further, it was submitted that the Court was, in effect, being asked to find that the RRT had failed to take into account a relevant consideration, when that was an impermissible ground of review. (ii) The Social Group Issue 9 Mr Krohn submitted that a substantive issue raised by the material before the RRT was whether Ms Tjoanardi had a well-founded fear of persecution by reason of membership of a particular social group or groups; that is, Chinese women, wealthy Chinese, women of wealthy Chinese families, and Chinese in business. Mr Krohn said that the RRT ignored this issue in its decision. The well founded fear was said to arise from acts which had been perpetrated upon her and as a result of riots which may occur and affect her. 10 Ms Kennedy responded by contending that it was implicit in the RRT's finding that Ms Tjoanardi was not attacked because of her ethnicity, that she was also not attacked for being a woman of that ethnicity or a wealthy person or business person of that ethnicity. Further, it was submitted that there was no evidence which pointed to the existence of such suggested social groups as groups set apart from the rest of the community with some characteristic other than a fear of persecution uniting them. (iii) Failure of Indonesian Authorities to Afford Protection 11 Mr Krohn submitted that the RRT failed to determine or failed to properly determine whether Ms Tjoanardi would face persecution as a result of selective failure by the authorities in Indonesia to protect her on the basis of her race or membership of the social group "wealthy Chinese women in business". Ms Kennedy's response was that this issue did not arise and that no Convention related claim leading to a requirement for such protection was found to exist. (iv) Failure of RRT to consider the claims of suffering of relatives of the applicant in May 1998 – another s430 Issue 12 Mr Krohn submitted that the RRT made no specific findings on a question of importance; that is, whether the relatives of Ms Tjoanardi suffered in the riots of May 1998. Ms Kennedy submitted that the claim about Ms Tjoanardi's relatives was dealt with by the finding that the prospect of further large scale anti-Chinese riots was remote. (v) Bias 13 Mr Krohn submitted that the decision of the RRT was affected by actual bias in that, as shown by its reasons for decision, in the face of the overwhelming nature of her case, the RRT was not open to persuasion in favour of Ms Tjoanardi's claims. In her written contentions, Ms Kennedy submitted that this complaint amounted to taking issue with a finding that was adverse to Ms Tjoanardi; that is, the attack on her not being on account of her Chinese ethnicity. It was contended that a dispute with the correctness of that finding does not support an allegation of actual basis. Consideration 14 I agree with each of the rejoinders of Ms Kennedy to the submissions of Mr Krohn. I do so for the following reasons: (a) It was unnecessary for the RRT to make clear findings on whether the harm alleged to have been done to Ms Tjoanardi occurred in 1996. A fair reading of the reasons of the RRT suggests that the RRT assumed the harm to have occurred but found that it did not occur for a Convention based reason. The facts which Mr Krohn contends ought to have been the subject of a clear and precise finding were not material questions of fact in the sense discussed in Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845 at paras [55] to [57] per Black CJ, Sundberg, Katz and Hely JJ. (b) I also reject Mr Krohn's submission that the RRT breached s430 of the Act by failing to refer to Ms Tjoanardi's claim that her rape was caused by her ethnicity in the context of a finding of a lack of evidence from her "account of the circumstances" that she was raped and robbed for being Chinese. The account of the circumstances was set out in the third paragraph of her statement accompanying her application which was before the delegate. That paragraph was as follows: "The most serious incidence (sic) was on 10 October 1996, which is a day that I will never forget. There were four gangsters (all of them were native Indonesian), they came and kidnapped me in front of my shop and took me into a small house. They took all my money, gold necklaces, diamond rings and expensive watch and then they started ruthlessly raping me in turn for as long as six hours." That account of the circumstances did not in terms refer to Ms Tjoanardi's ethnicity. However, the RRT was obviously alive to her claim that her treatment related to her ethnicity as it was one of the major planks of her submission before the delegate and before the RRT. (c) I hold the same view about "the failure to afford protection" point. There was no basis for the finding of the existence of any social group in any event as persecution on the basis of ethnicity had been rejected by the RRT. It is unnecessary to determine if the requirements for the existence of such a group as referred to by Goldberg J in Jayawardene v Minister for Immigration & Multicultural Affairs [1999] FCA 1577 have been established. (d) The complaint about the failure of the RRT to address the harm done to Ms Tjoanardi's relatives does not truly relate to a material question of fact in the Singh sense, having regard to the RRT's ultimate finding that the prospect of the repetition of such an event was remote. I consider that, on a fair reading of the RRT's reasons, the RRT did not fail to make a finding on whether there was a real chance of persecution if Ms Tjoanardi was returned to Indonesia on account of a single act of persecution being directed at her. I do so given that the claims about the 1998 events were put in the context of a fear of a recurrence of a riot. (e) I also see no basis for the allegation that the RRT's decision was affected by actual bias. The complaint appears to have the flavour of an invitation to the Court to engage in merits review. Indeed, the following observations of Merkel J in Xavier v Minister for Immigration and Multicultural Affairs [2000] FCA 927 at para [13] are apposite: "It was submitted that the Tribunal had brought a closed mind to the issues before it. It is not easy to see how that ground can properly be raised on the basis of the material before the Court. The only material relied upon in support of the ground were actual findings made by the Tribunal in its reasons for decision. In making its decision, the Tribunal is disposing of the matter and is required to reach conclusions. The issue of bias in the sense of having a closed mind relates to the role of the Tribunal prior to making its decision. Nothing has been raised before me that suggests that, in discharging its function of giving the applicant an opportunity to be heard, or indeed any other function prior to its decision, the Tribunal approached the resolution of the present matter with a closed mind. Accordingly, the allegation of actual bias must be rejected." Mr Krohn highlighted two strong adverse statements about the evidence of Ms Tjoanardi which were made by the RRT. However, confident findings of that sort, even if on their face surprising, do not suggest that it was not open to the RRT to so find (see Xavier at paras [15] to [17]). 15 Accordingly, I order as follows: 1. The application be dismissed. 2. The applicant pay the respondent's costs, including reserved costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 4 August 2000 Counsel for the Applicant: Mr A Krohn Solicitor for the Applicant: MSC Legal Service Counsel for the Respondent: Ms M Kennedy Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 27 July 2000 Date of Judgment: 27 July 2000 (ex - tempore as revised from the transcript)