SZDXE v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 182 (7 February 2006)

Last Updated: 8 March 2006

FEDERAL COURT OF AUSTRALIA

SZDXE v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 182

SZDXE, SZDXF & SZDXG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ANOR

NSD 2080 of 2005

GRAHAM J

7 FEBRUARY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2080 OF 2005

BETWEEN:	SZDXE FIRST APPELLANT SZDXF SECOND APPELLANT SZDXG THIRD APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	GRAHAM J
DATE OF ORDER:	7 FEBRUARY 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Each of the appeals be dismissed.

2. Appellant SZDXE is to pay the First Respondent’s costs fixed in the agreed amount of $3,500.

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 2080 OF 2005

BETWEEN:	SZDXE FIRST APPELLANT SZDXF SECOND APPELLANT SZDXG THIRD APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	GRAHAM J
DATE:	7 FEBRUARY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 Section 29(1) of the Migration Act 1958 (Cth) (‘the Act’) makes provision for the Minister to grant a non-citizen permission, to be known as a visa, to, amongst other things, remain in Australia. Section 65(1)(a)(ii) of the Act provides that the Minister is to grant a visa if, after considering a valid application for same, the Minister is satisfied that, amongst other things, ‘the other criteria for it prescribed by this Act or the regulations, have been satisfied ...’.

2 Section 65(1)(b) of the Act provides that the Minister is to refuse to grant a visa ‘if not so satisfied’.

3 Section 36(2) of the Act provides a criterion for a protection visa. The relevant criterion is expressed as follows:

‘(2) A criterion for a protection visa is that the applicant for the visa is

(a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

(b) a non-citizen in Australia who is the spouse or the dependant of a non-citizen who:

(i) is mentioned in paragraph (a); and
(ii) holds a protection visa.’

4 The First Appellant, who is known for the purpose of these proceedings as SZDXE, is a non-citizen in Australia who has applied for a Protection Visa relying upon section 36(2)(a) of the Act. The Second and Third Appellants, who are identified for the purposes of the proceedings as SZDXF and SZDXG, are the spouse and son of the First Appellant. They seek the issue of Protection Visas on the basis that they satisfy the criterion contained in section 36(2)(b) of the Act.

5 In the proceedings which are before the Court today the First Appellant has appeared in person with the assistance of an interpreter interpreting between the Indonesian and English languages. There has been no appearance by the Second and Third Appellants. However, it is common ground that their appeals ride on the coat tails of the appeal brought by the First Appellant. If his appeal fails so also do their appeals and if his appeal succeeds so also would their appeals.

6 The First Respondent is represented by Mr J.A.C. Potts of counsel and the Court is indebted to him for his helpful submissions in relation to the legal issues which have arisen.

7 Notwithstanding a direction made by me on 24 November 2005, the First Appellant failed to file and serve any written submissions in support of his appeal.

8 The notice of appeal filed 31 October 2005 does not articulate grounds of appeal with any clarity. The grounds are expressed as follows:

"2. RRT made jurisdictional error when considering my application. I was not given proper opportunity to explain my case and RRT referred to the wrong independent information for the consideration of my application.

3. RRT failed to assess a chance of my persecution on my return to Indonesia.

4. The Federal Magistrates Court did not take full consideration of the information provided for my review of my application.

5. I believe that RRT did make jurisdictional error and my application should be reassessed at RRT."

9 When invited to address the court in relation to these grounds of appeal and the manner in which the First Appellant contends the Tribunal made jurisdictional errors, the First Appellant said words to the effect:

‘My life is still in danger if I should go back to Indonesia.
...
I appeal to your Honour to reconsider my application.
...
I just felt that they did not understand my situation in Indonesia.’

10 The First Appellant indicated that he had nothing further to say in support of his appeal.

11 It would appear that the First Appellant was born in Medan, Indonesia on 30 May 1949, that his wife was born on 15 July 1955 and his son was born on 27 July 1986.

12 The First Appellant claims to be an Indonesian of Chinese ethnicity. It would appear that an Indonesian passport was issued to the Second Appellant on 7 June 2000, that a passport was issued to the Third Appellant on 18 December 2000 and a passport was issued to the First Appellant on 18 May 2001.

13 Australian Visitor's Visas were issued to the First Appellant on 10 March 2002 and 13 October 2003. It would appear that the Second and Third Appellants arrived in Australia in November 2003 followed by the First Appellant who arrived on 10 December 2003. On 12 December 2003 the Appellants applied for Protection (Class XA) Visas.

14 On 9 January 2004 their applications were refused by the Minister's delegate. On 30 January 2004 the First Appellant applied to the Refugee Review Tribunal (‘the Tribunal’) for a review of the Minister's delegate's decision. That application gave an address for the First Appellant which is the same address as was given by that Appellant in a later application for the issue of constitutional writ relief in the Federal Magistrates Court of Australia.

15 On 30 January 2004 the Tribunal wrote to the First Appellant at the address given. That letter included the following:

‘We have asked the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) to send us its file so that the Tribunal can review your application for a protection visa.

When we get your file, we will decide if we can consider your review application. If we can consider it, a Member of the Tribunal will look at the information you and DIMIA have given us and information about your country.’

16 The Tribunal wrote to the First Appellant again at the same address on 4 February 2004 inviting the First Appellant to attend a hearing of the Tribunal to give oral evidence and present arguments in support of his claims. That letter included the following:

‘The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.
...

Please read and complete the enclosed form carefully and:

• send us new documents or written arguments you want the Tribunal to consider...’

17 A further letter was sent by the Tribunal to the First Appellant on 11 March 2004 advising that the proposed hearing date before the Tribunal had been changed from 26 April 2004 to 28 April 2004. Each of the letters notifying the appellant of the proposed hearing date and time were returned to the Tribunal in the first instance with an indication ‘unclaimed’ and in the second instance with the notation ‘unknown at address’. Each letter had been sent to the First Appellant by registered post.

18 The Appellants having failed to appear meant that it fell to the Tribunal to determine the application for review on the basis of the Departmental file which included the Appellants’ Protection Visa applications and the Minister's delegate's decision and certain country information that was non-specific to the Appellants. In the First Appellant's application for a Protection Visa he, relevantly, said:

"I opened a mixed business that went good for quite a while, later on after that we were often visited by a number of groups demanding money from us in order for us to be safe to operate there.

We later found out that these people were form [sic] the Pemuda Pancasila Group, a group that’s very well known in Indonesia was they have harassed and attacked a number of innocent people like myself especially to those who are non-native Indonesian."

19 The application proceeded to indicate that the people who called on the First Appellant sought the payment of protection money. The First Appellant claimed that they got angry and started to give threats, threatening to burn the First Appellant's shop and ‘even kill us’. The First Appellant claims that the people got:

‘... more and more violent to a stage where I was held with a knife against my throat and they took my wallet, watch and my ring and ran off with it.
...
I knew that the police couldn't do anything about it anyway coz they never do and besides, these people are actually friends with the authorities which means that the authorities are aware with what they are doing anyway and if I do ask the authorities for help, it would only mean taking money out of my pocket for a no help been given.

I was devastated and terrified for the safety of me and my family and so therefore I decided to sell my business and come to Australia to seek for protection.

My wife and son came to Australia first because I had to stay back and finish off some business and other important things and as for my wife and son, I’ve asked them to leave first so that they wont be pressured with all the threats from these cruel people.’

20 The decision of the Tribunal on the application for review was dated 3 May 2004 and handed down by the Tribunal on 27 May 2004. A copy of the Tribunal's reasons was forwarded by the Tribunal to the First Appellant at his nominated address on 27 May 2004.

21 By an application filed in the Federal Magistrates Court of Australia on 23 June 2004 the Appellants sought review of the Tribunal's decision affirming the decision of the Minister's delegate not to grant Protection Visas.

22 It would appear that pursuant to directions given by the Federal Magistrates Court an amended application was filed although that application is without date and does not appear to bear a stamp of the court indicating when it was filed.

23 The application for constitutional writ relief in the Federal Magistrates Court was dismissed with costs or, more accurately, the applications for constitutional writ relief by each of the Appellants were dismissed with costs on 18 October 2005. It is from that decision that the current appeals have been brought.

24 In the course of the Tribunal's reasons for decision the Tribunal member observed that in a publication entitled ‘Surveillance and Territoriality in Bandung’ (J Barker ‘Surveillance and Territoriality in Bandung’, 1999, in VL Rafael (ed), Figures of Criminality in Indonesia, the Philippines and Colonial Vietnam, Southeast Asia Program Publications, Ithaca pp95-127), Joshua Barker wrote that Chinese Indonesians were not ‘the toughs’ exclusive targets’.

25 Under the heading ‘FINDINGS AND REASONS’ the Tribunal observed that it was for the applicants to satisfy the Tribunal that all of the statutory elements for the grant of Protection Visas were made out. The Tribunal indicated as follows:

‘The Tribunal has not had the opportunity to obtain direct oral evidence of and further details about the applicant husband's claims. Without such further evidence the Tribunal cannot be satisfied that the events claims (sic) actually occurred and the (sic) if they did the degree of harm suffered by the applicant husband." (emphasis added)

26 Later the Tribunal said:

‘... without further evidence as to the events claimed by the applicant husband the Tribunal cannot be satisfied on the basis of the evidence before it, that in the situation alleged by the applicant husband, that the essential and significant motivation of the perpetrators of such incidents was his race rather than a perception that the victim was wealthy. In that latter case, the essential and motivating reason for these crimes would not be Convention related but rather criminal greed.’ (emphasis added)

27 The Tribunal proceeded to find that any harm that the applicant husband would suffer:

‘... would not engage the provisions of the Convention since they would not be for a Convention reason.’

28 The Tribunal was not satisfied that the First Appellant was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol. The Tribunal observed that no specific Convention claims were made by or on behalf of the Second and Third Appellants and that the fate of their applications depended on the outcome of the First Appellant’s application.

29 I have had the advantage of reading the carefully and well expressed reasons for judgment of the learned Federal Magistrate. Nothing has been said in the notice of appeal or in the oral submissions of the First Appellant to cast doubt upon the correctness of the findings of the Federal Magistrate. No jurisdictional error on the part of the Tribunal has been identified. In the circumstances each of the appeals should be dismissed with costs.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham .

Associate:

Dated: 6 March 2006

Counsel for the First Appellant:	The First Appellant appeared in person
Counsel for the Second and Third Appellants:	The Second and Third Appellants did not appear
Counsel for the Respondent:	J A C Potts
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	7 February 2006
Date of Judgment:	7 February 2006