Lam v Minister for Immigration & Multicultural Affairs [2000] FCA 1079 (31 July 2000)

Last Updated: 4 August 2000

FEDERAL COURT OF AUSTRALIA

Lam v Minister for Immigration & Multicultural Affairs [2000] FCA 1079

BENNY LAM V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 365 of 2000

MATHEWS J

31 JULY 2000

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N365 OF 2000

BETWEEN:	BENNY LAM APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MATHEWS J
DATE OF ORDER:	31 JULY 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant is to pay the 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
NEW SOUTH WALES DISTRICT REGISTRY	N365 OF 2000

BETWEEN:	BENNY LAM APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MATHEWS J
DATE:	31 JULY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicant Mr Benny Lam seeks review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 13 March 2000. The Tribunal affirmed a refusal by the respondent's delegate to grant the applicant a protection visa. The applicant who is an ethnic Chinese and an Indonesian citizen claims that he has a well-founded fear of persecution in Indonesia on the ground of his race.

2 The applicant left Indonesia and arrived in Australia on 5 December 1998. On 5 January 1999 he applied for a protection visa. His application was accompanied by a statement setting out his background and the reason why he said he had a well-founded fear of persecution in Indonesia. His background, as described, was as follows. He was born on 2 February 1970 in Jakarta. His mother was born in China and he retained close ties with family members in Fujian province in China. From an early age he moved between Fujian Province, where his aunt lived, and Indonesia, where his parents lived. Finally in 1997 he moved permanently to Indonesia where he used all his money to open a mixed business shop in Jakarta.

3 The applicant was unfortunately one of the numerous ethnic Chinese in Jakarta who fell victim to the May 1998 riots. He described the events of 13 May 1998 in his statement. On that day, he said, several native Indonesians broke into his shop, grabbed all the valuable goods and forced him to hand over all the money in the shop. They forced him and his staff to the wall with their hands up. After an hour his shop was completely empty. The windows were broken, and all the stock and money were gone. Within that hour he had lost everything. He described reporting the matter to the police, but realised that no action would be taken to recover his property.

4 From that time on, the applicant said, his family and he were worried about their safety. The native Indonesians are extremely jealous of the Chinese people. The Chinese have obtained wealth in Indonesia because of their hard work and diligence. The Indonesians rob and burn their property and insult Chinese women. The Indonesian Government, he said, has never been seriously concerned about the sufferings of the Chinese. As a Chinese Indonesian his personal safety was under threat. Therefore, fearing his life, he escaped to Australia.

5 On 6 August 1999 the applicant's application was refused by the respondent's delegate. On 6 September 1999 he applied to the Tribunal for review of the delegate's decision.

6 On 11 February 2000 the Tribunal sent a letter to the applicant at the address nominated in his application informing him that there was to be a hearing of the matter on 6 March and inviting him to attend to give evidence. There was no appearance by or on behalf of the applicant on that day. On 13 March 2000 the Tribunal gave its decision which, as indicated, affirmed the delegate's decision. The decision referred to a great deal of country information relating to the situation of Indonesia Chinese people. It described the devastating riots of May 1998 when high levels of violence were perpetrated against ethnic Chinese. However it noted that since the beginning of 1999 there have been virtually no reports of anti-Chinese riots in Indonesia. The Tribunal also noted that President Wahid appears committed to reducing inter-racial conflict in Indonesia.

7 The Tribunal quoted a recent DFAT report which referred to the fear held by Chinese people for their property and physical safety. However the report noted that the risk needs to be kept in perspective. The size of the Chinese community in Indonesia is in the region of 6 million people. The report ventured as a "very rough rule of thumb" that there would be no more than a five per cent chance that any member of the Chinese ethnic group would be at risk of physical attack unless there was a generalised breakdown in law and order.

8 Having referred to this material the Tribunal dealt with the applicant's claims raised in the statement which accompanied his application for a protection visa. It accepted his account of the looting of his shop in May 1998 and accepted also that the applicant had a strong subjective fear of harm as a Chinese Indonesian. It accepted that what happened to him in May 1998 amounted to persecution. The Tribunal's real concern was whether the applicant's fear of persecution in Indonesia was a well-founded one. In this regard the Tribunal found, on the basis of the country information, that the overwhelming majority of Indonesians of Chinese descent continue to work and live as they always have, albeit with some degree of apprehension. The Tribunal also referred to the increased commitment of the Indonesian government to halt racial violence and prosecute perpetrators. It therefore concluded that for the reasonably foreseeable future, the Indonesian authorities are likely to provide adequate protection to Chinese Indonesians. In the light of these findings, the Tribunal concluded that the applicant's fear of persecution was not well founded. Accordingly, it affirmed the decision not to grant him a protection visa.

9 The application to this Court repeats a number of his statements as to the applicant's fears of persecution were he to return to Indonesia, and quotes part of the Tribunal's decision. It then refers to two grounds of review under s 476 of the Migration Act 1958 (Cth) ("the Act"). These are, first, that the decision was induced or affected by actual bias, this being a ground under section 476(1)(f) of the Act, and secondly, that there was no evidence or other material to justify the making of the decision, this being a ground of review under section 476(1)(g) of the Act.

10 The applicant appeared in Court today with the assistance of an interpreter but with no legal representation. He had little to say in support of either ground of review. In relation to the claim of bias, he conceded (as clearly had to be the fact) that as he had had no personal contact with the Tribunal member, the claim of bias was based only on the terms of the Tribunal's decision.

11 To my mind, there is no basis for this ground of review. The Tribunal's decision was an extremely detailed one which explored in depth the available information relating to the position of Chinese Indonesians. There is nothing whatsoever in the terms of the decision from which one could infer that the Tribunal member had a closed mind to the issues or had prejudged the case or was in any other way unwilling or unable to decide the case impartially. Indeed, a contrary impression is gained from a reading of the decision.

12 The second ground of review relied upon by the applicant, under s 476(1)(g) of the Act (to which one must add the requirements of section 476(4)) has similarly not been made out. It is abundantly clear from a reading of the Tribunal's decision that there was considerable material which supported its findings. Nor is there any suggestion in this case that the requirements of s 476 have been made out. The applicant has not pointed to any fact upon which the decision was based did not exist. No reviewable error having been demonstrated, I have no choice but to dismiss the application.

13 The application is dismissed. The applicant is to pay the respondent's costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mathews.

Associate:

Dated: 4 August 2000

Counsel for the Applicant:	The applicant appeared in person
Solicitor for the Applicant:
Counsel for the Respondent:	D Godwin
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	31 July 2000
Date of Judgment:	31 July 2000