Applicant S321/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 883

FEDERAL COURT OF AUSTRALIA

Applicant S321/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 883 APPLICANT S321/2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 361 of 2003 ALLSOP J 20 AUGUST 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 361 of 2003

BETWEEN: APPLICANT S 321/2002

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: ALLSOP J

DATE OF ORDER: 20 AUGUST 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The applications for writs of prohibition, mandamus, certiorari and injunction in the draft order nisi remitted from the High Court to this court be dismissed. 1. The proceedings be otherwise dismissed. 1. The applicant pay the respondent's costs. 1. The orders made today not be entered prior to 4 September 2003. 1. The matter be stood over to 9.30 am, 4 September 2003 for the finalisation of the orders. 1. Time be extended for filing the leave to appeal or notice of appeal from today's orders so as to run from no earlier than 4 September 2003. 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 361 of 2003

BETWEEN: APPLICANT S 321/2002

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: ALLSOP J

DATE: 20 AUGUST 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 In this matter, the applicant, who is an Indonesian national of Chinese ethnicity, filed an application for constitutional writs in the High Court of Australia. The matter was remitted to this Court by Gaudron J on 6 February 2003. Her Honour made various orders on that day including that the costs of the application to the date of remission including costs of this order are to be according to the scale applicable to proceedings in the High Court and thereafter according to the scale applicable in the Federal Court of Australia and in the discretion of that court. 2 The applicant was born on 6 April 1974. He is now 29. He is a national of Indonesia. He is ethnic Chinese. He is Christian. The applicant arrived in Australia on 15 September 1996. On 21 May 2002 he lodged an application for a protection visa with the Department. On 18 June 2002 a delegate of the respondent Minister refused to grant a protection visa. The applicant applied for review of that decision on 25 June 2002. The Tribunal had a hearing at which the applicant gave oral evidence and that took place on 30 July 2002. On 9 August 2002 the Tribunal made its decision in which it affirmed the decision of the delegate not to grant a protection visa. 3 In large part the Tribunal accepted what the applicant had to say. This is not a case where the Tribunal has had recourse to findings of credit in disbelieving the applicant. The applicant's history was, in all substantial respects, accepted. The conclusion of the Tribunal was that on his own version of events he did not have a well-founded fear of persecution according to the Refugees Convention. Thus it is necessary to understand what it was that the applicant said and whether or not the approach of the Tribunal in assessing that material was correct in the sense that it displayed no jurisdictional error for the application of constitutional writs. 4 The applicant recounted his own particular history in Indonesia, growing up in a place called Tanah Abang. The Tribunal accepted that the applicant as a child and as a teenager was beaten, robbed and threatened by a group of five native Indonesian children who lived in his neighbourhood in Tanah Abang. The Tribunal accepted that the applicant had a subjective fear of encountering this group upon his return to that neighbourhood. In fact his brother had encountered the group in 2000 when he returned and was the subject of attention by those people. 5 The particular aspects of this, at the very least, victimisation by this group of ethnic Indonesians who were Muslim is contained in the recitation of the applicant's claims and evidence on pages 5 and 6 of the Tribunal's reasons. When the applicant was about 13 or 14 he moved to Bogor and then Sukabumi. The applicant claimed that he experienced further discrimination when he moved to Sukabumi. He claimed that he often got into fights with native Indonesians and was often forced to defend himself. He says that he was beaten up in an attempt to defend a high school friend at a Christian school. 6 In the reasons of the Tribunal at page 18 the Tribunal further accepts that in the 1990s the applicant witnessed the murder of a school friend. This is the event recounted on page 6 of the reasons where the Tribunal was told by the applicant that on the day after the applicant sought to defend his friend at school the school was surrounded by a number of Indonesian students from various local high schools and his Chinese friend who had been involved in the previous day's incident was beaten to death. There are other incidents of harm referred to in the section of the reasons dealing with claims in evidence which are not precisely summarised on page 18 and following of the Tribunal's reasons. But I take it that in the absence of any specific rejection of that evidence, the Tribunal is generally accepting of the history of events, as recounted by the applicant. It could not be otherwise as there is simply no rational, non-capricious, or non-arbitrary reason for accepting some of the evidence and not the balance. No aspect of the reasons of the Tribunal reflect an arbitrary, irrational or capricious approach to the past and, so, I will conclude that the general acceptance of the applicant extends to an acceptance of the whole of his personal history by way of the harm inflicted on him from time to time and what he observed inflicted on others. Turning back to the Tribunal's reasons, it first approached the matter by examining the applicant's general fear of persecution for reasons of his race and religion, that is, it approached the matter looking at the applicant's subjective fear. 7 In this context it accepted that he did have a subjective fear of returning to Indonesia which was in part based on his own personal experiences. The Tribunal then discussed the resentment that has often existed in Indonesia of native Indonesians towards the ethnic Chinese community by reference to the latter community's position in the field of commerce and business. The Tribunal accepted that there are individuals and groups in Indonesia which from time to time might well take advantage of social disturbance to direct their violent resentment towards Chinese. 8 The Tribunal also accepted from the independent country material that Indonesia had a long history of state-sponsored discrimination against ethnic Chinese dating from the colonial period through to the end of what the Tribunal referred to as the authoritarian Soeharto Government. However, the Tribunal noted that the applicant had left Indonesia six years ago in 1996 and that there have been substantial changes in Indonesia since that time. President Soeharto stepped down from power in 1998, that is two years after the applicant left Indonesia. 9 The Tribunal then discussed the changes in government policy under President Wahid and President Soekarnoputri. The Tribunal made the following findings: Since Suharto stepped down in 1998 and particularly since former President Abdurrahman Wahid took office in October 1999 there have been continuous moves in ending formal discrimination against the ethnic Chinese. Although Sino-Indonesians continue to report instances of harassment and discrimination and they face potential physical threat should social unrest breaks out in Indonesia, rationally motivated attacks against the ethnic Chinese have dropped sharply and relatively few of the outbreaks of communal violence and rioting since the riots of May 1998 have targeted ethnic Chinese. 10 The Tribunal also noted the approach of President Soekarnoputri who it was found, often spoke of the need to protect minority groups and who had brought with her group of advisers, Indonesians who are both Chinese and Chinese Christians, as well as from other ethnic groups. The Department of Foreign Affairs' material indicates that President Megawati Soekarnoputri supports policies of multiculturalism and non-discrimination towards Chinese, ethnic Chinese Christians and Christians. 11 The Tribunal noted that while the country was populated largely by Muslims, it was a secular and not an Islamic State and that by the Constitution the rights of Christians are protected. It also noted that traditionally the Islamic faith in the country had been moderate which I take to be by way of anthesis to a more fundamentalist and rigid approach. It noted that in areas such as Ambon there had been horrific death and injury in conflict between Muslims and Christians but it noted that this was not the case throughout all of Indonesia. 12 The Tribunal was of the view that there was no indication that the current government and the current President were taking any different approach than that taken by President Wahid and that there was no evidence to suggest that the Indonesian authorities themselves promote, condone or permit persecution of Christians in Indonesia or withhold reasonable protection. The Tribunal found that though social unrest and random violence cannot be ruled out in the future, based on the evidence before it, it was not satisfied that the applicant faced a real chance of persecution for the reason of his ethnicity or faith. 13 Stopping there, it is important to understand the limited basis upon which I can review factual findings of this kind. Having examined the material in the green book, I am not able to conclude that the factual findings which I have just outlined about the state of affairs in Indonesia in the past and likely in the future is one which might suffer from criticism of the kind identified by the High Court in either Minister for Immigration and Multicultural and Indigenous Affairs v Yusef (2001) 206 CLR 323 or Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 [2003] HCA 30. That is, put generally, I am not able to identify any basis upon which one could conclude that those findings, even if they might be seen as wrong or doubtful in fact by another trier of fact, were approached irrationally, illogically, capriciously or arbitrarily. They appear to me to be open on the material before the Tribunal. 14 Returning to the reasons of the Tribunal, the Tribunal then turned to the particular history of the applicant and his fear of the Indonesian gang who seriously mistreated him as a child and an adolescent. The Tribunal accepted that the applicant was fearful of encountering this group. I have earlier indicated that his brother, on return three years ago, encountered them in unfortunate circumstances. The Tribunal concluded that the applicant's and his brother's experiences of this gang were geographically localised to the neighbourhood in Tanah Abang where they grew up with their parents. 15 The applicant's parents have passed away. His brother does not reside in Tanah Abang. The former family home in Tanah Abang has been sold, and his brother, at least, has moved to Bogor. The Tribunal discussed in the hearing the reasonableness or not of the applicant relocating to Bogor if he should be returned to Indonesia. The applicant is recorded as arguing against that relocation by stating that there was inter-school fighting and many of his friends were harmed and mistreated there, which I take to be a recollection of what had occurred while he was of school age and when his friends were of school age. 16 He also said that his brother's business had recently failed and he did not wish to be a burden, so the Tribunal recorded. The Tribunal then dealt with these matters and it found that there was no evidence before it to indicate that Bogor had been a scene of ethnic or religious violence in recent years. While the Tribunal appreciated the applicant's legitimate human concerns that he did not wish to be a burden on his brother, the Tribunal was of the view that it would not be unreasonable for him to locate in Bogor and to attempt to support himself economically there. 17 Thus, in conclusion, the Tribunal found that the particular matters of the behaviour of the Indonesian gang could be avoided in the future by relocating away from the neighbourhood in which he grew up which relocation the Tribunal found to be reasonable. Otherwise, the Tribunal found and was satisfied that, as an ethnic Chinese Christian, the applicant did not face a real chance of persecution. As with the various findings concerning the position of the applicant as an ethnic Chinese Christian, I do not perceive in the Tribunal's reasons concerning the Indonesian gang and his ability to relocate any factual conclusion or any particular approach which can be criticised in the way I earlier described. 18 Thus, in the circumstances, looking at the matter by reference to whether there has been jurisdictional error, I cannot conclude that the Tribunal approached the matter in any way failing to understand the correct question or not approaching that question correctly. The affidavit of the applicant in the High Court which set out his then complaints was short and, if I may say so respectfully, conclusory. It was in the following terms: I fear persecution if I am to return to my home country, Indonesia. There continues to be attack on Chinese ethnic Christians and everybody knows it. Even if it is not serious like murder, I still will be unable to live a normal life in that country. I do not trust all the statements made by the government about the condition is better or that they are not against us, the fact is that I will still be treated the same if I return. I cannot survive there, I will go crazy. Also I know I always receive more mistreatment, I usually don't know what to say if people are insulting or harassing me. The government may have changed some laws but the society is even more angry because of it. I honestly do fear I will be persecuted again 19 As can be seen from these reasons the Tribunal accepted some of that affidavit, in particular it accepted the personal fear and apprehension that this applicant has in returning to Indonesia. Where it differed from the applicant was drawing the conclusions about the approach of the Indonesian government and the lack of a real chance of persecution by reference to the material before the Tribunal, in particular the country information. 20 As I said earlier, the fact that a different person would have reached different conclusions than the Tribunal or that others may disagree with the weight put on the country information by the Tribunal does not lead to the conclusion that the Tribunal has failed to exercise its jurisdiction according to law so as to enable the invocation of the constitutional writs. In these circumstances I have no alternative but to dismiss the application. 21 The orders that I make are as follows: 1. The applications for writs of prohibition, mandamus, certiorari and injunction in the draft order nisi remitted from the High Court to this court be dismissed. 2. The proceedings be otherwise dismissed. 3. The applicant pay the respondent's costs. 4. The orders made today not be entered prior to 4 September 2003. 5. The matter be stood over to 9.30 am, 4 September 2003 for the finalisation of the orders. 6. Time be extended for filing the leave to appeal or notice of appeal from today's orders so as to run from no earlier than 4 September 2003. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.