Tjiuw v Minister for Immigration & Multicultural Affairs [2000] FCA 1031

FEDERAL COURT OF AUSTRALIA

Tjiuw v Minister for Immigration & Multicultural Affairs [2000] FCA 1031

DJIN KHIONG TJIUW v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 347 OF 2000 HELY J 21 JULY 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 347 OF 2000

BETWEEN: DJIN KHIONG TJIUW

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: HELY J

DATE OF ORDER: 21 JULY 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed with costs. 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 347 OF 2000

BETWEEN: DJIN KHIONG TJIUW

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: HELY J

DATE: 21 JULY 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 When this matter was called on for hearing this morning the applicant did not appear. For reasons which I then gave, I dismissed the application under Order 32, rule 2(1)(c). Later this morning Mr Tjiuw arrived in court, and by arrangement with Mr Markus the matter was re-listed for hearing this afternoon and the services of another interpreter obtained. 2 Mr Markus says that he is prepared to consent to my vacating the orders made this morning provided Mr Tjiuw is prepared to proceed with the hearing of his application this afternoon. Mr Tjiuw tells me that he is so prepared. On that basis I vacate the orders which I made this morning dismissing the application with costs. 3 On 19 July 1997 the applicant arrived in Australia travelling on a visa. On 11 May 1999 he was arrested upon the basis that he was an unlawful non-citizen as he had stayed in Australia beyond the period permitted by his visa. On 28 May 1999 the applicant applied for a protection visa and his application was refused by the Minister's delegate on 3 August 1999. He sought a review of that decision by the Refugee Review Tribunal ("RRT") and on 20 March 2000 RRT affirmed the delegate's decision not to grant a protection visa. 4 Mr Tjiuw appeared in this Court in person with the assistance of an interpreter. The disadvantages of a person having to deal with complex questions in that way without the benefit of legal assistance are obvious and I have done my best to make proper allowance for them. Mr Tjiuw told me that he fears persecution because of his Chinese ethnicity and because he is a Christian. He says that if he returns to Indonesia he will be the victim of discriminatory treatment. He also indicated that if the Australian government will not grant him permanent residency, he seeks a temporary visa which would permit him to remain in Australia until the situation in Indonesia improves. 5 As to the first of those matters, Mr Tjiuw is effectively asking me to come to a different conclusion on the facts from that reached by RRT. The RRT reviewed the facts and came to the conclusion that it was not satisfied that the applicant had a well-founded fear of persecution either because of his Chinese ethnicity or because of his adherence of the Christian religion. 6 I am not entitled to engage in a merits review of RRT's decision. This Court can only interfere with a decision of RRT on one of the grounds referred to in s 476 of the Migration Act 1958 (Cth) ("the Act"). Nothing which Mr Tjiuw put to me comes anywhere near establishing one of those grounds. As to the second of the matters referred to by Mr Tjiuw, this Court is not a visa issuing authority and I simply have no power to issue him a temporary visa. 7 In his submissions Mr Tjiuw did not seek to support the grounds set forth in his application. However, because he is not legally represented, I have independently considered each of those grounds. 8 The application seeks to review the decision of the delegate given on 3 August 1999, as well as the decision of RRT given on 20 March 2000. Insofar as the application seeks a review of the decision of the delegate, it is incompetent. The objection to competency lodged by the respondent on 20 April 2000 must to that extent be upheld. 9 Insofar as the application seeks a review of the decision of RRT, a number of grounds are specified. The first is that RRT did not comply with s 54 of the Act and has not considered all the information and material set out in the application for review. Rather, RRT has relied on its own source of information. 10 Section 54 of the Act does not apply to RRT. The RRT is entitled to rely upon generalised country information and it regularly does so. The fact that RRT based its decision on that information does not mean that material submitted by the applicant has not been taken into account. 11 The second ground on which review is sought is that RRT misinterpreted the definition of the Article 1A(2) of the United Nations Convention Relating to the Status of Refugees 1951 as explained by Justices of the High Court in Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559. This ground is not made out. At page 99 of the Green Book RRT referred in some detail to the judgment in Guo and set out in summary form certain aspects of that judgment in a manner which does not disclose any misapprehension of the applicable law. 12 The next ground is as follows: "I submitted material to the Department of Immigration and Multicultural Affairs to apply for protection visa. My agents lodged the claims for me and my wife. If the Department had adverse material to lead them dump my claims, I should be provided an opportunity to study that material and to express my view." 13 I do not know whether or not the applicant was given the opportunity to inspect or to comment upon the independent country information material relied upon by RRT. All that I know is that on 17 February 2000, RRT conducted a hearing in respect of the application, but I do not know what happened on that occasion. Assuming for the moment that the applicant's claim is correct, it amounts to an assertion that he was denied natural justice. By virtue of s 476(2)(a) of the Act this is not a ground of review that is available in the context of this application. 14 The last ground of review is as follows: "In submission to the RRT my agent sent reports from the media to the Tribunal for its consideration. However reference was only made to its own source of information. Furthermore, on 25 February, 2000, my agent sent a fax to advise the Tribunal that the priest of my church had returned from overseas and was willing to answer inquiry (he'd just returned from Indonesia). However, the priest was not contacted by the Tribunal and a decision was made on 20 March, 2000. The RRT also failed to present Guo's case (1997) 191 CLR 559 for me and my wife to comment before a decision was made." 15 There is no substance in this ground. The facsimile of 25 February 2000 was not a notice under s 426(2) of the Act, and even if it were, RRT is not required to obtain evidence from such a person. Further, the proposed witness was not available at the hearing of the application. The applicant could have provided a statement from the witness to RRT but chose not to do so. No reviewable error was committed by RRT in not contacting the priest before giving its' decision. Nor is there any obligation on RRT to provide the applicant with a copy of Guo's case for consideration and comment by him before making its decision. 16 None of the grounds as stated in the application have been made out, and there is nothing further which Mr Tjiuw put to me orally, which was capable of establishing a reviewable error. It follows that the application for an order of review must be dismissed, and unless there is anything further which Mr Tjiuw wishes to say to me on the issue of costs, it seems to me to be inevitable that the application has to be dismissed with costs. 17 The order which I will make is that the application is dismissed with costs. I certify that the preceding sixteen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.