SZJHM v Minister for Immigration and Citizenship [2008] FCA 200 (3 March 2008)

SZJHM AND ANOR v MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR
NSD2179 OF 2007

SACKVILLE J
3 MARCH 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD2179 OF 2007

BETWEEN:	SZJHM First Appellant SZJHN Second Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE :	SACKVILLE J
DATE OF ORDER:	3 MARCH 2008
WHERE MADE:	SYDNEY

2. The appellants pay the costs of the first respondent.

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	NSD2179 OF 2007

BETWEEN:	SZJHM First Appellant SZJHN Second Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	SACKVILLE J
DATE:	3 MARCH 2008
PLACE:	SYDNEY

1 This is an appeal from a judgment of the Federal Magistrates Court (Barnes FM) given on 15 October 2007, dismissing an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’). On 13 July 2006, the Tribunal affirmed a decision of a delegate of the first respondent (‘the Minister’), made on 30 March 2006, refusing the appellants’ application for a protection visa.

2 The appellants are husband and wife. Both are Indonesian citizens. They arrived in Australia on 29 December 2005 and lodged an application for a protection visa on 20 January 2006. Only the first appellant (‘the husband’) made specific claims under the Convention Relating to the Status of Refugees (‘Convention’). The second appellant (‘the wife’) relied on her membership of the husband’s family.

3 In the protection visa application, the appellants claimed to be Indonesians of Chinese descent, from Semrang. The husband stated that he had suffered ‘massive trauma’ due to the anti-Chinese riots of May 1998 in Jakarta. The husband claimed that he was tortured by rioters and that his shop was burnt to the ground. He further claimed that his community’s place of worship had been bombed. He and his wife had been unable to cope with their daily activities and had conducted their business in fear.

4 The husband also submitted that the ‘moral bankruptcy’ of both the Suharto and post-Suharto regimes made it unsafe for him to live in Indonesia.

5 At hearing, the husband made additional claims. He stated that he had been beaten by a mob in May 1998 after he had been involved in a road accident in which a Muslim Indonesian was injured. No police attended the incident and he claimed to have been attacked due to his Chinese ethnicity.

6 The husband also claimed that he and his brother had conducted a business renting Play Station Consoles from 2003, but were forced to close it in 2005 due to demands for protection money. The husband stated that there was no point in seeking police protection. Moreover, someone had falsely reported the business as a gambling operation and he and his brother had been required to pay money to the police. The husband also claimed that while he worked as a salesperson for a paint business, he found that many Muslim-owned businesses were unwilling to work with him because he was Chinese.

7 The appellants attended a hearing before the Tribunal on 15 June 2006. The appellants were assisted by an interpreter in the Bahasa Indonesian language.

8 The Tribunal found the husband had not suffered persecution or serious harm in the way described in his written claims. At the hearing, he had retracted his claims insofar as they suggested that he had experienced the events personally. He instead characterised the events as general experiences of the Chinese community in Jakarta during May 1998.

9 The Tribunal accepted that the husband had been beaten up by a crowd of bystanders as he had claimed. However, the incident had occurred in 1998 and the husband made no claim that he had suffered further harm because of it. The Tribunal accepted he ‘may have suffered some harm and discrimination during this incident’, but did not accept that it was serious harm. Nor did it accept that the husband now had any subjective fear regarding future repercussions arising out of any past discrimination.

10 The Tribunal accepted that the husband had been subjected to demands for protection money in relation to the Play Station business in 2003 and that the husband believed that the police would not give him effective protection. However, the husband had not claimed that this was the reason for closure of the business. Further, he had not received any demands after closing the business. The Tribunal found that these experiences and the limited difficulties he had encountered in the paint business did not amount to serious harm and did not give rise to a well-founded fear of persecution.

11 Overall, the Tribunal accepted the husband had suffered some societal discrimination because of his Chinese ethnicity. While the husband might be subject to some discrimination on his return, the Tribunal was not satisfied the appellant had a well-founded fear of persecution within the meaning of the Convention.

12 The application for judicial review of the Tribunal’s decision to the Federal Magistrates Court raised two grounds.

13 The first was that the Tribunal’s decision was ‘illogical’, in that the Tribunal had rejected the husband’s claim to have a well-founded fear of future serious harm, yet accepted that he had been beaten up in 1998 as a result of ‘systematic and discriminatory conduct’. In relation to this ground, the Magistrate pointed out that the Tribunal had not found that the husband had been beaten up as the result of systematic and discriminatory conduct. On the contrary, the Tribunal had found that the harm was not serious and that the husband had no subjective fear of future repercussions. There was no illogicality in the Tribunal’s conclusions, which were open to it on the evidence.

14 The second ground was that the husband had not found page 8 of the Tribunal’s decision, a copy of which had been sent to him on 3 August 2006. Her Honour noted that there was no affidavit evidence to support this claim, but that the copy of the Tribunal’s reasons for decision annexed to the wife’s affidavit comprised only every second page of the reasons.

15 On the assumption that page 8 was in fact missing, the Federal Magistrate held that the omission of a page from the reasons for decision did not constitute a jurisdictional error. On this issue, she followed the decision of Madgwick J in SZFLM v Minister for Immigration & Citizenship [2007] FCA 863.

17 The notice of appeal repeats the claim of illogicality and asserts that the Tribunal failed fully to consider the risk faced by the appellants if they were returned to Indonesia. The appellants have not filed any written submissions in support of their appeal.

18 For the reasons given by the Federal Magistrate, the illogicality contention cannot be sustained. The conclusions reached by the Tribunal were consistent with its findings. The findings were open on the material before the Tribunal.

19 The second ground in the notice of appeal is an invitation to revisit the merits of the appellants’ claims. This Court cannot accept that invitation. If the Tribunal’s decision is to be set aside, it is necessary to establish a jurisdictional error on its part. Even if the Court were to take a different view of the evidence than that taken by the Tribunal, no jurisdictional error would thereby be established.

20 If the appellants intend to maintain their complaint about receiving an incomplete copy of the Tribunal’s reasons for decision (although this is not identified as a ground of appeal), the Tribunal’s failure to send a complete copy (assuming that there was a failure) does not constitute a jurisdictional error. As Madgwick J held in SZFLM v Minister, although the Tribunal is obliged to notify an applicant of the reasons for decision (Migration Act 1958 (Cth), s 430B(6)), a failure to comply with the obligation does not result in the antecedent decision being affected by jurisdictional error. There may be other consequences flowing from the failure to notify the applicant correctly (cf WACB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 50; (2004) 210 ALR 190), but the consequences do not include an entitlement to have the Tribunal’s decision set aside on the ground of jurisdictional error.

I certify that the preceding twenty-one (21) numbered Paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

	The appellant appeared in person

Counsel for the Respondent:	Ms McWilliam

Solicitor for the Respondent:	DLA Phillips Fox

Date of Hearing:	28 February 2008

Date of Judgment:	3 March 2008

Federal Court of Australia