SZFHL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1569 (26 October 2005)

Last Updated: 7 November 2005

FEDERAL COURT OF AUSTRALIA

SZFHL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1569

SZFHL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ANOR

NSD 1560/2005

GRAHAM J

26 OCTOBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY		NSD 1560 OF 2005
BETWEEN:	SZFHL APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	GRAHAM J
DATE OF ORDER:	26 OCTOBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The Appellant pay the First Respondent's costs fixed in the sum of $4000.










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		NSD 1560 OF 2005
BETWEEN:	SZFHL APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	GRAHAM J
DATE:	26 OCTOBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The Appellant who is identified for the purposes of these proceedings as SZFHL was born on 13 May 1959. On 16 July 2003 he was issued with an Indonesian passport.

2 On 24 March 2004 he was issued with an Australian visitor's visa entitling him to visit Australia for a period of one month. On 17 April 2004 he arrived in Australia.

3 On 4 May 2004 the Appellant applied for a Protection (Class XA) Visa, which was refused by the Minister's delegate on 29 May 2004 because he did not satisfy the necessary criterion. Notice of the decision was sent to the Appellant at his residential address by letter dated 29 May 2004.

4 The material relied upon by the Minister's delegate included a decision and reasons for decision of 7 May 2001 of the Refugee Review Tribunal ("the RRT") from file number N00/32454 . That material included the following passage:

"Although there have been a number of protests and riots in various parts of Indonesia since mid May 1998, the only report found by the Tribunal, in which ethnic Chinese in Jakarta were mentioned as targets was on 21-22 November 1998 at Ketapang ... Over the last few years there have been no major outbreaks of violence in Jakarta in which Chinese people or property were attacked. Despite concern about the prospect for unrest, especially prior to the general election, there was no mass exodus of ethnic Chinese prior to the June 1999 elections."

5 The Appellant is of Chinese ethnicity. On 28 June 2004 the Appellant sought a review of the Minister's decision in the RRT. He stated in his application for review that he received the Minister's refusal letter but strongly disagreed with the decision. He said:

"The locals often did some violence to me and my friends. They threatened Chinese people in Indonesia if Chinese people won't give them the money. The government corrupted and the police took money from business people. As our economy and monetary crises, the crises became worse and worst (sic). They robbed us, stole and looted every single things from my shop. I was injured because I had fought with the local, they burnt our house and the other shops surrounding there and smoke was everywhere. My wife's sister were raped by a the local, it made a scratch so deeply in my heart. I do not want the riots happen to my family again, so I decided to come to Australia to apply for a protection visa."

6 On 16 September 2004 the RRT wrote to the Appellant stating that it was unable to make a decision in his favour on the material it had before it alone. In the circumstances, he was invited to appear at a hearing before it on Tuesday 26 October 2004, to give oral evidence and present arguments in support of his claims. The Appellant did not appear to take up the invitation to give oral evidence and present arguments in support of his claims.

7 On 28 October 2004 the RRT reached its decision and affirmed the decision of the Minister's delegate not to grant a protection visa. In reaching its conclusion the RRT was not satisfied that the Appellant was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol. In her findings and reasons the RRT member said:

"The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant...


Although given every opportunity to do so, the Applicant has not provided any evidence or detail (either written or oral) to substantiate his claims. Neither has he explained why he did not depart from Indonesia for nearly 12 months after obtaining an Indonesian passport if he genuinely feared suffering persecution on account of his ethnicity more than 5 years after the major ethnic riots in Indonesia in 1998. In the absence of any such evidence, detail, explanation, I am not satisfied that there is any foundation to the Applicant's claims.

I am not satisfied, on the evidence before me, that the applicant has a well-founded fear of persecution within the meaning of the Convention."

8 On 29 October 2004 the RRT wrote to the Appellant advising him that its decision would be handed down on 18 November 2004.

9 On 21 December 2004 the Appellant sought review of the decision of the RRT in the Federal Magistrates Court and filed an amended application on 9 June 2005. The matter came before the Federal Magistrates Court on 15 August 2005 with the Appellant appearing in person. The learned Federal Magistrate dismissed the application for review and ordered the Appellant to pay the First Respondent's costs fixed in the sum of $3900. Federal Magistrate Scarlett pointed out that the RRT decision made it quite clear that the Appellant did not provide sufficient evidence to satisfy the RRT and observed that it was not the fault of the RRT that the Appellant did not attend the hearing. The learned Federal Magistrate found that there had been no jurisdictional error on the part of the RRT.

10 The highest point that the Appellant's submissions before me have risen to is that he asks whether he could have another chance. There is nothing in the grounds nominated in the Appellant's notice of appeal which demonstrate that the RRT relevantly fell into error. There is a ground advanced of no evidence or other material to justify the making of the RRT’s decision but on examination of the findings it is clear that the RRT was not satisfied on the matters required by section 65 of the Migration Act 1958 (Cth) in the absence of evidence from the Appellant which he chose not to advance. \

11 What the Appellant is seeking is, in effect, a merits review and in this court he has no entitlement to a grant of such relief. In my opinion the appeal should be dismissed with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated: November 2005


The Appellant appeared in person

Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	26 October 2005
Date of Judgment:	26 October 2005