SZGZY v Minister for Immigration & Multicultural Affairs [2006] FCA 289 (6 March 2006)

SZGZY v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS & ANOR

NSD78 OF 2006

EMMETT J
6 MARCH 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD78 OF 2006

BETWEEN:	SZGZY APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	6 MARCH 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs of the appeal.

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	NSD78 OF 2006

BETWEEN:	SZGZY APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	EMMETT J
DATE:	6 MARCH 2006
PLACE:	SYDNEY

1 This is an appeal from a decision of the Federal Magistrate’s Court dismissing an application for judicial review of a decision of the second respondent, the Refuge Review Tribunal (‘the Tribunal’), affirming a decision of the first respondent, the Minister for Immigration and Multicultural Affairs (‘the Minster’), refusing to grant a protection visa to the appellant.

2 The appellant arrived in Australia on 10 June 2004. There is a question of whether she claimed to be a citizen of Indonesia, a subject to which I shall return shortly. On 9 July 2004, the appellant lodged an application for a protection (class XA) visa under the Migration Act 1958 (Cth) (‘the Act’). On 2 September 2004, a delegate of the Minister refused to grant a protection visa. On 1 October 2004, the appellant applied to the Tribunal for a review of the delegate’s decision. On 29 June 2005, the Tribunal affirmed the decision not to grant a protection visa. The appellant was advised of that decision on 19 July 2005.

3 On 22 August 2005, the appellant filed an application in the Federal Magistrates Court of Australia seeking relief under s 39B of the Judiciary Act 1903 (Cth) in respect of the Tribunal’s decision. The application was completed in a way that indicated the author of it had no comprehension of what he or she was doing. There were no claims for relief as such. In that part of the application where the claims are to be specified the following was inserted:

5 The Tribunal’s reasons recorded that the appellant gave oral evidence at the Tribunal hearing on 16 December 2004. She was accompanied by her adviser who is a registered migration agent. At the hearing the appellant gave the Tribunal an Indonesian passport, which was issued on 5 May 2004, and a Chinese passport in her name, which was issued on 20 May 2002. The Tribunal informed the appellant that the first issue to be resolved was her country of nationality. The Tribunal asked her why, as an Indonesian national, she feared returning to Indonesia. The Tribunal recorded, at some length, the response to that question and to further questioning of the appellant by the Tribunal.

6 The Tribunal concluded by saying that the appellant told the Tribunal what had happened to her in China. The Tribunal informed her it was going to make further inquiries as to the relevant nationality laws of China and Indonesia and would hold another hearing after that information was available. On 11 March 2005, the Tribunal wrote to the appellant pursuant to s 424A of the Act inviting her to comment on particulars of information that could be the reason or part of the reason for the Tribunal affirming the decision under review.

7 The appellant was given a copy of a translation of her Indonesian marriage certificate that indicated that she and her husband had been married on 22 April 2004 and it had been registered on that day. She was also given a copy of an endorsement on her Indonesian passport stating that she was the legal wife of an Indonesian national, that the passport holder gained Indonesian citizenship, that the passport holder had renounced her citizenship of the Peoples Republic of China on 27 April 2004 and that the passport holder had returned the passport to the embassy of the Peoples Republic of China in Jakarta on 30 April 2004.

8 The appellant was informed that the evidence indicated that she was an Indonesian citizen and that her claim should be determined on the basis that that was her country of nationality. She was also informed that the evidence contained in the marriage certificate could cast doubts on the truthfulness of her evidence relating to the circumstances of her Indonesian marriage and that that could lead to the conclusion that her claims had been fabricated to obtain a protection visa.

9 The appellant responded in writing on 28 April 2005, stating that she could not return to Indonesia and that she cannot live there for safety and human rights reasons. She claimed that her life in that country was threatened. The appellant gave further oral evidence at a hearing of the Tribunal on 3 June 2005, when she was assisted by an interpreter and also adduced evidence from the pastor of a local church.

10 The appellant was asked questions about her Indonesian passport. The Tribunal put to the appellant that it appeared that she had paid someone to leave China and go to Indonesia to become married to an Indonesian citizen. It was put that it was then arranged for her to enter Australia and that the whole situation was contrived to obtain entry to Australia and that her story was not truthful. The Tribunal recorded, in some detail, the appellant’s response to the questioning.

11 The Tribunal accepted that the appellant was born in China and possessed a Chinese passport, which was issued in 2002. The Tribunal also accepted that the appellant had Chinese nationality before she arrived in Indonesia in April 2004. The Tribunal also accepted that the appellant married and had Indonesian citizenship, as evidenced by her Indonesian passport.

12 The Tribunal found that a person who marries an Indonesian citizen is entitled to Indonesian citizenship. That acquired citizenship can only be revoked if the married couple divorce and the wife makes a formal statement to that effect to a particular official. Giving of such a statement results in a revocation of Indonesian citizenship unless such revocation results in the woman becoming stateless. The Tribunal also found that independent country information indicated that the effect of taking citizenship of another country automatically revokes Chinese citizenship.

13 The Tribunal found that the appellant’s action in obtaining Indonesian citizenship in April 2004 and an Indonesian passport in May 2004 resulted in the loss of her Chinese nationality as a matter of law. The Tribunal found the endorsement in her Indonesian passport confirmed that she has renounced her Chinese nationality upon the taking of Indonesian citizenship and that the country information indicates that neither country allows dual citizenship. The Tribunal did not consider the fact that the appellant still has possession of a Chinese passport alters the position in law, namely that she is no longer a citizen of China due to her action in taking up Indonesian citizenship.

14 The Tribunal did not accept that the appellant is at risk of being sent to China if she returns to Indonesia. It referred to country information that indicates the appellant has a right to enter and reside in Indonesia as an Indonesian citizen. The information available to the Tribunal indicates that, if the appellant were to return to Indonesia, the entry officer may have some concerns as to whether she is a genuine Indonesian citizen, due to her inability to speak Indonesian. In those circumstances, she would either be held in detention until her citizen status was confirmed or sent back to Australia. The Tribunal considered the country information indicated that there was no risk of her being sent to a third country such as China.

15 The appellant indicated to the Tribunal at the hearing that she did not want to return to live in Indonesia for a number of reasons. She claimed to fear harm in Indonesia as a person of Chinese ethnicity and as a Christian. The Tribunal accepted the appellant is of Chinese ethnicity and is a Christian. The Tribunal also accepted that many persons of ethnic Chinese origin were harmed and Chinese property was destroyed in the 1998 riots in Indonesia and that that remains a recent traumatic memory for many Chinese. However, the Tribunal found that religious freedom is guaranteed by the constitution of Indonesia and that the Government takes an active role in protecting citizens from sectarian strife.

16 The Tribunal found that there is not a real chance that the appellant will be persecuted because of her religion in the reasonably foreseeable future if she returned to Indonesia. The Tribunal accepted that, while the appellant may have a subjective fear of racial unrest against the Chinese should she return to Indonesia, it found that such a fear was not well-founded and that there was not a real chance of such harm occurring if she returned. The Tribunal found that the overwhelming number of Indonesians of Chinese descent continued to work and to live normal lives in Indonesia as they have always done, albeit with some degree of apprehension. The Tribunal concluded that the appellant does not face a real chance of persecution for reasons of ethnicity, religion or any other Convention reasons if she returns to Indonesia in the reasonably foreseeable future.

17 The primary judge considered that the Tribunal member had conducted the review with scrupulous attention to the requirements of natural justice and procedural fairness. His Honour considered that the Tribunal approached the question of the appellant’s citizenship in a careful way and the finding that the appellant is a citizen of Indonesia was clearly open to the Tribunal on the evidence before it. His Honour considered that it was open to the Tribunal to make the finding that the appellant had acquired Indonesian citizenship and therefore it was appropriate to assess the appellant’s claims of fear and persecution on that basis. His Honour concluded there was no jurisdictional error on the part of the Tribunal demonstrated by the appellant.

18 The appellant appeared before the Federal Magistrates Court in person, without any legal assistance, and addressed, at some length, her oral submissions and did not address the question of error on the part of the Tribunal. She reiterated her concern that it was dangerous for her to go back to Indonesia. She quarrelled with the Tribunal's finding that there was no danger for her if she returned to Indonesia.

19 Before this Court, the appellant also provided written submissions, pursuant to directions, quarrelling with the findings of fact made by the Tribunal. The submissions assert that the basic reason her application was refused by the delegate and the Tribunal is that they think she is an Indonesian citizen. She repeated that she could not go to Indonesia and that it was very dangerous for her to go to China. She referred to persecution of her Christian church in China and said that she fled China because of the threat of persecution as a Christian.

20 The appellant referred to having been introduced to an Indonesian man who then invited her to marry him. She complained when she was taken to his home she found that her new husband already had a wife and a daughter and the appellant was being asked to be his concubine. She said in her written submission that her husband saw she was very unhappy with his family and could not get on with them. He therefore had to find a way out and discussed with the appellant the possibility of getting her to leave Indonesia to stay in another country. She said that he therefore organised the Indonesian passport for her in a very short period of time.

21 In her written submission, the appellant complained about the finding that the taking of citizenship of another country automatically revokes Chinese citizenship. The appellant said that she fears that if she does return to Indonesia, notwithstanding the finding made by the Tribunal, she may somehow be sent back to China and that she is frightened to go back to China. There is nothing in her written submissions that addresses the question of jurisdictional error on the part of the Tribunal.

22 The only grounds in the notice of appeal to this Court are completely lacking in substance and are in the following terms:

23 There is nothing in the reasons of the primary judge to indicate any error on his part. There is nothing in the reasons of the Tribunal to indicate jurisdictional error on the part of the Tribunal. It follows, in my view, that the appeal should be dismissed.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

The Appellant appeared in person.

Counsel for the First Respondent:	Mr T. Reilly

Solicitors for the First Respondent:	Blake Dawson Waldron

Date of Hearing:	6 March 2006

Date of Judgment:	6 March 2006

Federal Court of Australia

SZGZY v Minister for Immigration & Multicultural Affairs [2006] FCA 289 (6 March 2006)