SBSC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 77 (26 May 2006)

Last Updated: 26 May 2006

FEDERAL COURT OF AUSTRALIA

SBSC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 77

MIGRATION – appeal from decision of a judge of this Court – whether primary judge erred – no fear based on Convention reason – appeal dismissed.


Migration Act 1958 (Cth), s 441A, s 425A


NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184, cited
VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134; (2004) 136 FCR 407, cited




















SBSC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

SAD 32 of 2006




LANDER, RARES and BESANKO JJ
26 MAY 2006
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 32 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	SBSC APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGES:	LANDER, RARES and BESANKO JJ
DATE OF ORDER:	26 MAY 2006
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The first respondent be described as the Minister for Immigration and Multicultural Affairs.

2. The appeal be dismissed.
3. The appellant pay the first respondent’s costs.









Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 32 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

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

JUDGES:	LANDER, RARES and BESANKO JJ
DATE:	26 MAY 2006
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal from an order of a judge of this Court in which he dismissed the appellant’s application pursuant to s 39B of the Judiciary Act 1903 (Cth) (‘Judiciary Act’) seeking the issue of constitutional writs directed to the second respondent, the Refugee Review Tribunal (‘RRT’).

2 The appellant was born in Indonesia on 19 October 1951. He is married and has one child, who is an adult. His wife and child still reside in Indonesia.

3 He entered Australia on 29 January 2001. On 20 February 2001 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth) (‘the Act’).

4 On 1 March 2001 a delegate of the Minister for Immigration and Multicultural Affairs refused the appellant’s application for grant of a protection visa. On 27 March 2001 the appellant applied to the RRT for a review of that decision.

5 On 16 August 2001 the RRT affirmed the Minister’s delegate’s decision not to grant the appellant a protection visa. On 26 September 2005 the appellant brought an application in this Court seeking review of that decision pursuant to s 39B of the Judiciary Act. It was that application which was dismissed by a judge of this Court.

6 In his application for a protection visa the appellant stated:

‘In Indonesia over 85 percent are Muslims. For the last few years, there have been non stop conflicts over religious differences, inter-religious violence was spreading out in most parts of Indonesia.
Beside, politically, the country is also in turmoil and instability.
Bascially [sic], the Indonesians are anti-Chinese, anti-Christian, anti-Buddhists; as a devoted Christian in Indonesia, my life is in danger.

...

I am fear that my life & property will be in danger. With the experience of the May riot in 1998, I do not feel any security when I was in Indonesia.
Recently, the Muslim extremists were declaring "Holy War" against the Christians, they said they will "burn the churches" and protested in Jakarta.
These rally and protests are encouraged by newspaper advertisements and Muslims politicians, and a mass conflicts between the Muslims & the Christian are very likely to occur, and killing and burning of houses etc. will happen.’

7 In answer to a question in the application as to who he thought might harm or mistreat him, the appellant said:

‘The native Indonesians, the Muslims, the Armry [sic] and the Muslim officials.’

He said:

‘They will mistreat us because we are Christians and we are not Muslims.
The nature [sic] Muslim Indonesians are hostile against the Christians, they want Indonesia to be a Muslim-only country and the Gov’t is encouraging the hostility against the Christians because the Government officials and army leaders are also Muslims.’

He said that he thought that the government and police in Indonesia, being Muslims, would not protect Christians. He said that they were corrupt.

8 On 17 July 2001 the RRT wrote to the appellant advising that it was not prepared to make a favourable decision on the written information provided to it and inviting the appellant to attend a hearing of the Tribunal to give oral evidence and to present any arguments in support of his claim. It set a hearing date on 15 August 2001. The appellant did not attend, nor did he respond to the invitation. The letter advising of the hearing appointment was sent to the appellant’s postal address, which was the address of the appellant and his adviser. In fact, the notice was returned on 19 July 2001. The appellant had not provided the RRT with a telephone number at which he could be contacted. The RRT attempted to contact the appellant’s adviser, but the telephone number provided by that adviser was disconnected and no further listing could be obtained. Because of the appellant’s non-attendance and non-response, the RRT proceeded to consider the matter on the written material before it.

9 The RRT reminded itself that the appellant was entitled to a protection visa if the appellant could establish that he:

‘... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence ..., is unable or, owing to such fear, is unwilling to return to it.’

10 The RRT concluded that there was insufficient evidence before it to establish that the appellant feared persecution for a Convention reason. It affirmed the decision of the Minister’s delegate not to grant a protection visa.

11 The appellant did not file any written submissions in support of his application to the primary judge for a review of the RRT’s decision. However, he did attend the hearing before the primary judge. The following exchange took place between the appellant and the primary judge:

‘MR SBSC: ... Actually when I arrive in Australia, in Sydney, January 2001, I met the immigration agent, Ms Mimi Wong, and talk about my actual problem. My real problem is not really fear about the national issue but it is fear about my personal issue. I work on the ship from ’81 until 1999, arriving back in Indonesia and tried to settle in Indonesia because I leave my family for a long time already. Then I joined my friend during 1999 to 2000, for some agent, recruiting for oil company to Timor Gap.

For some reason, because I have a lot of experience in the catering, I was their recruiting personnel for member to go to the catering and Timor Gap and for some reason I am the one who signed all the bill, the fee and then whatever – by the time they supposed to met together with one of the company, supposed to send them to Australia, he disappeared and I’m the one with responsibility for all the money back to the employ. That’s the time I get fear because they threaten my life, every day, especially my family, and then at the same time I get a friend who offer me a job in Australia through Mimi Wong.

I fly to Australia and meet Ms Mimi Wong because the reason I have to go to Australia, I have to solve the problem in Indonesia and I get fear if all the employees go to my house every day. So that is my explanation to Mimi Wong and I don’t know exactly – Mimi Wong don’t give me the same address I live because she’s the one that give me the address first when I arrive and I never know any information. Only a couple of times I see her but she told me everything is okay.

I keep working with Captain Cook Cruises for the past 4 years and then 2005 I got caught while I’m working with Captain Cook Explorer and that is the time I know my address is not the same address they send all the paperwork, and I was very upset and I just told them while I was in Villawood that this is not right because I really don’t know exactly – because I blame Ms Mimi Wong as a immigration agent for all my problems and I explain her everything but she never explain back to me what is going on, why I am here in Australia. She just told me: you can work. That’s the little bit of my story. Thank you very much.

HIS HONOUR: So what you are saying to me is the reason you don’t wish to return to Indonesia is because your former employer is pursuing you for money?

MR SBSC: Yes.

HIS HONOUR: That is the only reason you do not wish to return to Indonesia?

MR SBSC: Yes. That’s the only reason. Actually, when I met Ms Mimi Wong, I am fear about my life because I am not running from them but I have to try and give it back – all my fortune from the time I work in the sea, I have to sell that all to cover this problem because if they fear me and they go to my house every day, not only me as a person, but my family of course. That is why I am looking to solve the way. I have to go and get another job again and try to solve this problem.’

12 His Honour dismissed the application for review because there was no jurisdictional error shown in the RRT’s reasons and its decision that the appellant’s fears did not amount to a well-founded fear of persecution for a Convention reason.

13 The appellant complains on this appeal that the primary judge ‘did not take into access [sic] that the applicant have [sic] "well founded fear of persecuted on Convention reason"’.

14 In support of that ground of appeal, the appellant has provided two written submissions. In his written submissions dated 25 April 2006 he said that his failure to attend the RRT hearing was the fault of his adviser, Ms Wong, who had given the RRT her address, which was not his address.

15 That complaint can be dealt with immediately. Section 441A of the Act deals with the dispatch of documents and, in particular, a notice under s 425A inviting an applicant to appear before the RRT: s 441A(3)(c). Section 441A(1) at the relevant time provided:

‘(1) A document specified in subsection (3) is taken to be duly given to an applicant for review if:

(a) the document is sent (physically, electronically or otherwise) to:

(i) the last address for service provided by the applicant in connection with his or her application for review; or

(ii) the last residential address provided by the applicant in connection with his or her application for review; and

(b) the Tribunal has a receipt or other evidence indicating the date of dispatch.’

16 The notice in this case was sent to both the appellant’s last residential address provided by the appellant’s adviser and to the adviser. Both letters were returned to the RRT as sender. That was sufficient compliance by the RRT with its statutory obligations in this regard. The fact that the appellant’s adviser might have given the RRT the appellant’s wrong address or failed to give the RRT the appellant’s change of address, or may herself have left her notified address, does not assist the appellant in this appeal. His complaint that he was unaware of the hearing is ‘of no legal relevance’: NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184 at [16]. See also VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134; (2004) 136 FCR 407 (‘VNAA’).

17 Although s 441C of the Act was not in operation at the time that the RRT sent the invitation in this case, that does not mean that the reasoning in VNAA is not apposite to this case. The RRT complied with its statutory duty and indeed made other attempts to contact the appellant. It did all it could and all it needed.

18 In his written submissions, the appellant said that he had left Indonesia because he was a Christian and had come to Australia because ‘I believe as a majority Christian believer Australia is a lovely country to solve and help a lot of refugee with forgiveness and peace, and for myself as a Christian I believe that God send me here for some reason, and I believe whatsoever I suffer from far away from my loved ones that is better than life in Indonesia in fear and never solve the problem.’

19 He pointed out in his submission that since he has been in Australia he has worked for a period of about four years for Captain Cook Cruises until he was detained in the Villawood Detention Centre in 2005.

20 In his written submission dated 28 February 2006, which he incorporated into his written submissions of 25 April 2006, he explained that immediately before he came to Australia he was recruited by a company in Indonesia to work for an oil drilling company at Timor Gap as personnel manager. Whilst so working, the director/owner of the company absconded with some fee money. As a result, he was threatened because the director/owner had absconded with the fee money. Consequently, he came to Australia.

21 Also accompanying the appellant’s written submissions were a number of testimonials and references from people with whom he had worked in Australia on Captain Cook Cruises and persons who had travelled on those cruises. All of those testimonials and references were highly complimentary of the appellant.

22 On this appeal the appellant repeated all of the matters contained in his written submissions and pleaded to be allowed to remain in Australia.

23 However, this Court’s function is to determine whether the primary judge fell into error in dismissing the application for review of the RRT decision on the ground that there was no jurisdictional error in the RRT’s reasons and decision that the appellant did not have a well-founded fear of persecution for a Convention reason. The appellant told the primary judge that he did not wish to return to Indonesia because his employer was pursuing the appellant for money. In those circumstances, the primary judge was clearly right, for the reasons he gave. It may be that the appellant is fearful for his safety for the reason he explained to the primary judge. However, the reason he gave is not a Convention reason and, as a result, he has no entitlement in law to a protection visa. No other reason was advanced on appeal.

24 The primary judge was right to dismiss the application. The appeal must be dismissed.

25 The appellant must pay the first respondent’s costs.

I certify that the preceding twenty-seven (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.

Associate:

Dated: 26 May 2006

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the First Respondent:	Ms K Bean
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	The Second Respondent did not appear
Date of Hearing:	5 May 2006
Date of Judgment:	26 May 2006