FEDERAL COURT OF AUSTRALIA BZADM v Minister for Immigration and Border Protection [2014] FCA 72 Citation: BZADM v Minister for Immigration and Border Protection [2014] FCA 72 Appeal from: BZADM v Minister for Immigration & Anor [2013] FCCA 1563 Parties: BZADM v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: QUD 721 of 2013 Judge: MARSHALL J Date of judgment: 13 February 2014 Legislation: Migration Act 1958 (Cth) s 36(2)(a) Cases cited: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Date of hearing: 11 February 2014 Place: Brisbane Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 16 Counsel for the Appellant: The Appellant appeared for himself. Counsel for the Respondents: Ms K Slack Solicitor for the Respondents: Sparke Helmore Lawyers IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 721 of 2013 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: BZADM Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: MARSHALL J DATE OF ORDER: 11 february 2014 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellant pay the first respondent's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 721 of 2013 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: BZADM Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: MARSHALL J DATE: 13 february 2014 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The appellant appeals from a judgment of the Federal Circuit Court dismissing his application for judicial review of a decision of the Refugee Review Tribunal. The Tribunal had affirmed a decision of a delegate of the respondent Minister to refuse the appellant a protection visa. 2 The appellant is a citizen of Indonesia. He entered Australia as the holder of a tourist visa on 1 February 2012. Four weeks later, he applied to the respondent Minister's Department for a protection visa. He claimed to fear persecution if returned to Indonesia by reason of his Chinese ethnicity and as a result of an event which occurred in January 2012 ("the Temple incident"). 3 The Court below described the appellant's claim about the Temple incident as follows: (he) claimed that his friend's Uncle had built a hotel on the site of a "Muslim Temple", and, at the end of January 2012, local Islamic Indonesians surrounded the hotel; then rushed into the hotel and kidnapped [him] and others… (They) were tortured and kept in a small room for many days. [He] says that the local Islamic Indonesians threatened to kill [him] and his friends… [He] says that he managed to escape with assistance and reported to Police but claims that the Police refused to assist… because [he] is a Chinese Indonesian. 4 The delegate stated that Australia did not owe protection obligations to the appellant under s 36(2)(a) of the Migration Act 1958 (Cth) ("the Act") or under the complementary protection provisions in the Act. In short, the appellant was not a person to whom Australia owed any protection obligation under the Refugee Convention. 5 The delegate described the appellant's claims as "very vague and lacking in detail". The appellant did not put forward any information to support his assertion that the Islamic Indonesian protestors had attacked, kidnapped or tortured anyone during the Temple incident. In fact, a local newspaper report contradicted these assertions entirely. 6 Moreover, the delegate noted the appellant's failure to seek assistance from the Department of Immigration immediately upon his arrival in Australia. The appellant had instead taken the opportunity to travel to Victoria, New South Wales and Queensland. The delegate concluded as follows: [It] is more likely that the applicant has submitted an application for [a] protection visa in order to delay leaving Australia rather than [as a result of his] fearing persecution or serious harm in Indonesia. 7 The appellant sought a review of the delegate's decision before the Tribunal. The Tribunal observed that the appellant's account of the Temple incident and its aftermath was inconsistent with the timing of his arrival in Australia. The appellant left Indonesia three days after the Temple incident and could not have spent a further eight to 10 days in Indonesia, as he claimed, before coming to Australia. As the Tribunal noted, and as the judge below agreed, this put the appellant's credibility in issue. 8 As an adjunct to the appellant's lack of credibility on the Temple incident and its aftermath, the Tribunal also found, in line with the delegate's decision, and relying on the same in-country evidence, that the appellant had never been kidnapped or tortured during the Temple incident. 9 On the evidence before it, the Tribunal also found that the appellant's claim of a "well-founded fear of persecution" was negated somewhat by his being able to find stable employment and housing in Indonesia. The Tribunal therefore dismissed the appellant's claim for protection. 10 The appellant then sought judicial review in the Court below. Three grounds of review were adduced; first, that the Tribunal failed to notify him of part of the reasons for affirming the delegate's decision. This the judge below rejected outright on the evidence. 11 Second, the appellant argued that the Tribunal did not comply with the Act in an unspecified way. Third, he argued that the Tribunal applied the wrong tests in making its decision. The appellant did not specify any particulars as to why the tests applied by the Tribunal were wrong. 12 The Court found that the Tribunal had committed no jurisdictional error. Rather, the judge concluded that the Tribunal had made certain findings of fact in relation to the appellant and the Temple incident, open to it on the evidence. The Tribunal was not required to accept the appellant's claims. As the High Court (Brennan CJ, Toohey, McHugh and Gummow JJ) noted in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 282: In other words, the material provided by the respondents did not go very far towards satisfying the delegate that there was a real chance of persecution, because it was contradicted by more relevant material. 13 Here, the implausibility of the appellant's claims of kidnapping and torture, as well as his allegations as to the timing of the Temple incident and his departure from Indonesia, were contradicted by relevant material in the form of an article in the Jakarta Post. The appellant has at no stage pointed to additional sources to support his claims, neither in front of the delegate, nor the Tribunal, nor the Court below. 14 The vague and unspecified grounds relied on below are also relied on by the appellant in this appeal. Given that the appellant is unrepresented, the Court has very carefully considered the decision of the Tribunal and the judgment below. However, it is of the view that the former is free of jurisdictional error and the latter is free of appealable error. 15 In his oral submissions this morning, the appellant did not raise any additional issues which may have assisted his appeal. 16 Accordingly, the appeal must be dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 13 February 2014