SZRHS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 123

FEDERAL COURT OF AUSTRALIA

SZRHS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 123 Appeal from: SZRHS & Ors v Minister for Immigration & Anor [2019] FCCA 2383

File number(s): NSD 1472 of 2019

Judge(s): THAWLEY J

Date of judgment: 12 February 2020

Cases cited: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 Singh v Minister for Home Affairs [2019] FCAFC 3

Date of hearing: 12 February 2020

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No Catchwords

Number of paragraphs: 39

Counsel for the Appellants: Mr L Karp

Solicitor for the Appellants: McArdle Legal

Counsel for the Respondents: Ms A. Douglas-Baker

Solicitor for the Respondents: Australian Government Solicitors

ORDERS NSD 1472 of 2019

BETWEEN: SZRHS First Appellant

DON16 Second Appellant

DOO16 (and another named in the Schedule) Third Appellant

AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: THAWLEY J DATE OF ORDER: 12 FEBRUARY 2020

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from transcript)

THAWLEY J:

BACKGROUND 1 The first appellant is an Indonesian national born in Blitar, East Java. The second to fourth appellants are the first appellant's wife and children. 2 The first appellant was a Chief of Village in Blitar between 1998 and 2006. On 3 March 2004, he was told by the central government through the Regional Income Office that the Blitar Regency would be receiving 1.3 billion rupiah from the central government as "tax restitution". This was to be divided between the 248 villages in the Regency. 3 Two days later, the first appellant and his colleague, Mr M, met with the Regional Secretary and the Regional Income Office. The Regional Secretary informed the first appellant and Mr M that there was only 266 million rupiah left because the money had been distributed to the Regent, the Deputy Regent, the Regional Secretary, the Head of the Regional Income Office, the Parliament and others. 4 The first appellant and Mr M undertook further investigations which revealed corrupt conduct on the part of the head of the Blitar Regency (Regent Imam Muhadi), the Secretary of the Blitar Regency (Subiyantoro), the head of the Regency Treasury (Kepala Kas Daerah), (Kristanto) and a staff member in the Regency Treasury (Solichin). 5 On 7 April 2004, the first appellant and some of his colleagues reported the matter to the Attorney General in Jakarta. On 9 April 2004, the first appellant's wife received a threatening phone call warning her to forbid her husband from revealing corruption in Blitar if he wanted to stay alive. On 12 April 2004, the first appellant provided preliminary evidence of corruption to the Regional Attorney General's Department and agreed to be a witness. During the course of the investigation, the first appellant said he continually received threats and anonymous phone calls. 6 The colleagues who had gone to Jakarta with the first appellant faced similar problems. In the end, only two of the seven village heads persisted with their claims of corruption. The two remaining village heads were the first appellant and Mr M. 7 Mr M's house was bombed with a Molotov cocktail. The first appellant decided to move his family. 8 The first appellant said that on one occasion five people came to his office and tried to tell him to stop the corruption case but his village people protected him. 9 The first appellant was pursued by the Regent and his staff at his office but the first appellant did not attend his office on that occasion. The first appellant moved around with his family, although he completed the remainder of his term as the village head which expired on 6 January 2006. 10 The second appellant departed Indonesia for Australia in 2008 and the first appellant followed in 2009. 11 Ultimately the Regent, Subiyantoro, Kristanto and Solichin were imprisoned. The Regent died in prison in 2009. 12 At the end of September 2010, the first appellant tried to return to Indonesia, but once he arrived he was told by friends that it was not safe for him to be there. Those who were convicted as a result of the first appellant's revelations were due to be released in 2011 and he considered that they still posed a threat. 13 In 2011, Mr M was convicted of engaging in corruption in relation to events which occurred in 2005 and imprisoned.