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MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection (Class XA) visa - no jurisdictional error - application dismissed.

SZEVO v Minister for Immigration [2004] FMCA 659 (1 October 2004)

SZEVO v Minister for Immigration [2004] FMCA 659 (1 October 2004)
Last Updated: 19 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEVO v MINISTER FOR IMMIGRATION
[2004] FMCA 659




MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection (Class XA) visa - no jurisdictional error - application dismissed.




Migration Act 1958 (Cth), ss.65, 474

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2

Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1

Craig v South Australia (1995) 184 CLR 163

Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26

Australian Broadcasting Tribunal v Bond (1990) CLR 321

SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231

Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 78 ALJR 992, 998-999

Minister for Immigration & Ethic Affairs v Wu Shan Liang [1996] HCA 6

Applicant:
SZEVO




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SZ2096 of 2004




Delivered on:


1 October 2004




Delivered at:


Sydney




Hearing date:


15 September 2004




Judgment of:


Lloyd-Jones FM




REPRESENTATION

Counsel for the Applicant:


Ms L Tucker




Counsel for the Respondent:


Mr J Smith




Solicitors for the Respondent:


Australian Government Solicitor




ORDERS

(1) The application is dismissed.

(2) The applicant is to pay the Minister's costs and disbursements of and incidental to the application, fixed in the amount of $4,000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SZ2096 of 2004

SZEVO



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
The proceedings

1. This is an application for a review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 10 September 2003, affirming a decision of a delegate of the respondent made initially on 22 January 1997 and affirmed by the Tribunal, differently constituted, on 1 July 1998 to refuse to grant the applicant a protection (Class XA) visa.

2. The applicant claims to be a citizen of Indonesia, who arrived in Australia on 18 September 1997. The applicant applied to the Department of Immigration & Multicultural Affairs for a protection visa on 4 November 1997. A delegate of the Minister of Immigration & Multicultural Affairs refused to grant a protection visa and the Tribunal differently constituted affirmed the delegate's decision on 1 July 1998.

3. The applicant joined a class action seeking a review of a number of Tribunal decisions and on 17 April 2003 the High Court quashed the decision and remitted the matter to the Tribunal to determine according to law.

The history

4. The applicant, when she originally arrived in Australia in September 1997, was a single woman of Chinese ethnicity from the city of Medan in the province of Sumatra, Indonesia. She has since married and has a young daughter. The applicant's parents and siblings remain in Indonesia.

5. The applicant was born on 1 February 1978. She has completed her secondary school education and listed her occupation on her passport as student. The applicant stated in her Tribunal application for review form that she had successfully completed high school in 1996 and had never been employed.

6. The applicant stated that she was born into a Chinese / Buddhist family and that she had been exposed to discriminatory behaviour by native Indonesians on a constant basis. She refers to an incident in August 1996 when native Indonesians burnt their temple. She claimed that there are racial differences between native Indonesians and Indonesians of Chinese descent and she was not safe even though she had a harmonious family arrangement.

7. The applicant also stated the native Indonesians do not like Indonesians of Chinese descent. She stated that because of her Chinese ethnicity, she feels like a foreigner in her own country. She also stated that Chinese language publications except the official newspapers are officially banned and Chinese language advertising shop signs are forbidden.

8. The applicant's initial visa application was rejected by a delegate of the Minister on 22 January 1997. As a consequence, the applicant filed a review application before the Tribunal which was heard and the decision handed down on 1 July 1998, affirming the decision of the delegate not to grant a protection visa.

9. The High Court of Australia issued writs of certiorari quashing the decision of the Tribunal made on 1 July 1998 and a writ of mandamus requiring the Tribunal, differently constituted, to consider and determine according to law the applicant's application for refusal of a protection visa application.

10. A differently constituted Tribunal handed a new decision on 10 September 2003, which affirmed the decision not to grant a protection visa.

The Delegate of the Minister's decision and reasoning

11. The delegate for the Minister, in refusing the protection visa application, gave the following reasons for that decision:

a) Although independent evidence indicates that there is widespread racial discrimination towards people of Chinese descent in Indonesia, which includes systematic discrimination in relation to certain aspects of employment opportunities, education and religion. The evidence, however, does not suggest that people of Chinese ethnicity are excluded from employment or that they face serious restrictions or impediments to their livelihood.

b) While acknowledging that it is not a necessary element of persecution for convention purposes that an individual should be a victim of a series of attacks, a single attack will suffice. If a person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a convention reason against that person as an individual or a member of a class, he or she is being persecuted for the purpose of the convention. The delegate was not satisfied, on the available evidence, that a course of systematic conduct against the Chinese community, as distinct from intermittent incidents of ethnic tension in which members of the Chinese community had been mistreated or their property damaged, had occurred. These incidents tended to occur during times of heightened social and political tension, such as in the lead up to national elections.

c) The delegate referred to independent evidence concerning various riots that had occurred since 1994, which indicated that the Indonesian Government had intervened to stop such violence and had prosecuted the perpetrators. There was evidence that the military had been promptly deployed to contain the violence and the system of national riot alert centres had been established in attempt to monitor potential explosive social tension.

d) The delegate stated that no state could ensure the complete safety of all of its citizens against all forms of harm, mistreatment or even death. However, independent advice indicated that the Indonesian authorities have acted to restore order in situations of civil disturbance and have taken action against those who have committed criminal offences. This protection is available to people of Chinese ethnicity in response to crimes perpetrated against them.

e) The delegate stated that outside general claims of racial discrimination and generalised violence, the applicant had not provided any information from which the delegate could be satisfied that she had been or would face a real chance of being in need of such protection for a convention reason. The applicant had never sought to rely upon such protection, which leaves the contention untested. This left the delegate to conclude that she had never been in a position compelling her to do so.

The Tribunal's decision and reasoning

12. The Tribunal wrote to the applicant on 9 July 2003 inviting her to attend a hearing on 30 July 2003 to give oral evidence and arguments in support of her claim. This occurred on 30 July 2003.

13. On 10 September 2003 the Tribunal affirmed the decision of the delegate not to grant a protection visa.

14. The Tribunal had before it the Departmental files, which included the protection visa application and the delegate's decision record. The Tribunal had regard to the material referred to in the delegate's decision, although some of it was considered to be no longer relevant because of the passage of time since the original decision.

15. During the hearing on 30 July 2003, the Tribunal, with an assistance of an accredited interpreter in the Indonesian language, put a number of issues to the applicant seeking her response. In summary, these issues were:

a) The Tribunal put to the applicant that in her written protection visa application were very general claims of antipathy against the Chinese by the Indonesian. The applicant claimed there was a specific incident when she was twelve years of age when she was assaulted by an Indonesian. However, no complaint was lodged and consequently no action was taken. This incident had not been raised with the original delegate.

b) It was noted that the applicant had been in Australia at the time of the downfall of the Soeharto regime when many incidents occurred against Sino-Indonesions. When questioned about what happened to her family, the applicant stated that they had closed their shop and stayed indoors during the period of civil arrest. The applicant also said that other families moved away during this time.

c) The Tribunal put to the applicant that since May 1998 the situation had calmed and there were no reports of violence against the Sino-Indonesian community. The applicant agreed that there had been no "big" conflicts but stated that there were still small ongoing conflicts. Information relayed through the applicant's mother was that Chinese could still be robbed or be victims of extortion. The applicant raised the issues of it not being safe to go out or do business and that teachers were extorting money from parents for placement of their children in school.

d) The Tribunal raised that a number of discriminatory pieces of legislation against the Sino-Indonesians had been removed by the Presidents Wahid and Megawati. The applicant stated in her reply:

"Chinese people close to President Megawati - those about whom she is concerned - are those with money; she said that `little people within the Chinese community do not have anything'."

e) When asked to describe her fears about returning to Indonesia, noting that her family were still there and in the same place as when she left, the applicant described how her situation had changed. She stated she left Indonesia as a young person just out of school and had now married another Sino-Indonesian while in Australia and they had a daughter. The applicant also noted some domestic difficulties concerning her husband and daughter if they returned to Indonesia.

f) When the requirements of the Refugee Convention were discussed, the applicant stated that the Chinese did not suffer at the hands of the authorities but at the hands of demonstrators being native Indonesians. She stated that the Chinese did not think of calling the police because they would not do anything. The applicant also stated that if there was a demonstration and Chinese or their property are hurt then it is too late to call the police.

g) When the Tribunal questioned the applicant about specific harm suffered by her, the applicant gave an account of a number of issues of rudeness, bribes and various forms of discrimination relating to the obtaining of official documents and forms. The applicant also raised the issue of discrimination in relation to work. She inadvertently agreed with comments about the ability of the richer members of society being able to go overseas during periods of civil disturbance.

h) The applicant claimed that she and her family had been victims of verbal abuse from Muslim Indonesians who frequented a nearby mosque.

i) The Tribunal stated:

"The number of Sino-Indonesians who were physically harmed or whose property was destroyed during the 1998 riots in fact remains extremely small. After those riots, the overwhelming majority of Sino-Indonesians (including the applicant's family) continued to work and live as they always did."

16. The Tribunal also had at its disposal independent evidence which addressed the issues of interracial tension and the changes that had occurred since the fall of the Soeharto regime. The most recent of these was identified as the International Crisis Group, Indonesia: Violence and Racial Muslims, 10 October 2001.

17. In the Tribunal's decision under the heading "Findings and Reasons" it made a number of general acknowledgments in respect of the applicant:

a) The applicant is a citizen of Indonesia and the Tribunal assessed her claim against that country.

b) The applicant made no claim, nor does the evidence suggest that she suffered harm amounting to persecution for a convention reason.

c) The applicant made one specific claim about an experience when she was twelve years old, but this incident was not reported or investigated.

d) The applicant was not in Indonesia during the period of civil unrest in 1998 when a number of Sino-Indonesians reported feeling particularly vulnerable and insecure.

e) The applicant's family did not suffer during the 1998 uprising by taking the precaution of closing their shop and staying indoors.

f) The applicant's parents continue to operate their business out of the same premises that they occupied before the 1998 uprising.

18. The Tribunal then made some observations based on independent material that it had available to it:

a) There has been a long history of discrimination against the ethnic Chinese in Indonesia with specific instances of violence.

b) The fall of the Soeharto regime has brought a number of changes to Indonesia including the repeal in January 2000 by the then President Wahid of a number of laws which discriminated against Sino-Indonesians and lifted restrictions relating to the enjoyment of Chinese culture.

c) There has been no significant clash involving the Chinese community in the major cities since the fall of the Soeharto regime.

d) Racially motivated attacks against Sino-Indonesians has dropped sharply since 1998 although there are still reports of instances of discrimination and harassment.

19. Based on all of the evidence before the Tribunal, it stated it was satisfied that the Indonesian Government was not initiating or condoning any systematic conduct that brings serious harm to the Sino-Indonesian community. However, it acknowledged that there are instances where individual Chinese have suffered serious harm.

20. The Tribunal then focused on the specific issues raised by the applicant which, in the view of the Tribunal, concerned some difficulties in the domestic arrangement should she return to her family in Indonesia. The applicant raised the problem of obtaining employment and the general problem experienced by the poorer members in any society. The Tribunal found that, in effect, these generalised claims are more about social disadvantage and are not issues that fall into the category requiring protection of the Refugee Conventions Protocols.

The application for review of the Tribunal's decision

21. The applicant filed an amended application in this Court on 31 August 2004, setting out the grounds for review as follows:

1. The Tribunal acted beyond its jurisdiction in its determination of the Applicant's evidence as it misdirected itself as to the nature of part of the Applicant's claim and thus failed to take into account a relevant consideration.


Particulars
The Applicant's evidence to the Tribunal in relation to the situation for wealthy Chinese close to President Megawati Sukarnoputri who may be protected, as opposed to the `little people' in the Chinese community, was characterised by the Tribunal as a concern that "is doubtless true for all Indonesians of whatever ethnic background".

Such a finding did not property address the claim that there are particular circumstances affecting the Chinese in Indonesia and this is aggravated by poverty and/or lack of political influence.

2. The Tribunal made findings of fact in the absence of evidence or contrary to the evidence before it such as to constitute jurisdictional error.


Particulars
The Tribunal stated that "the number of Sino-Indonesians who were physically harmed or whose property was destroyed during the 1998 riots in fact remains extremely small". There is no reference to the source of this information. Further, it is contrary to the evidence to which the Tribunal had regard."

The law

22. The present application is affected by the privative clause contained in s.474 of the Migration Act 1958 (Cth) ("the Act"). The High Court in Plaintiff S157/2002 v Commonwealth of Australia ("S157/2002") and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (S134/2002"), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and Applicants S134/2002 at [15].

23. An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal's power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.

Submissions

24. The applicant's submissions in relation to ground (b) made reference to a statement in the findings and reasons section of the Tribunal's decision:

"The number of Sino-Indonesians who were physically harmed or whose property was destroyed during the 1998 riots in fact remained extremely small."

25. The applicant's submission was that there was no reference to the source of this information. Furthermore it was contrary to the independent evidence that the Tribunal had before it. The first reference was found in the Department of Foreign Affairs & Trade Country Information Report No. 284/98 dated 22 June 1998 which addresses "Indonesia: treatment of ethnic Chinese in Indonesia - May riots". This report contained two references, namely:

"In the riots which took place in Jakarta mid May we observed that as well as widespread destruction of shops, vehicles and goods owned by Chinese people, the residential area was also targeted.

26. There was also a reference to the serious riots in Medan (home of the applicant) and Solo which also occurred in May:

"The government organisation to promote ethnic harmony said it had received 1,284 reports from Chinese Indonesians who had been victims one way or another during the May riots, complaints including burning and looting of their homes and business as well as sexual assaults and deaths."

27. The second reference was to the cover feature in the Far Eastern Economic Review dated 19 September 2002 and headed "Indonesia - The Battle to be Accepted", in which the opening paragraph stated:

"It's more than four years since protesters rampaged through Jakarta's Chinatown district, burning down homes, looting businesses and claiming hundreds of lives."

28. In Australian Broadcasting Tribunal v Bond per Mason CJ at 355; [87]:

"The question whether there is any evidence of a particular fact is a question of law: McPhee v S. Bennett Ltd. (1934) 52WN (N.SW.) 8, at p 9; The Australian Gas Light Co. v The Valuer-General (1940) 40 SR (NSW) 126, at pp 137-138. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law: Australian Gas Light, at pp 137-138; Hope v Bathurst City Council (1980) 144 CLR 1, at pp 8-9. This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions: Federal Commissioner of Taxation v Broken Hill South Ltd. (1941) 65 CLR 150, at pp 155, 157, 160. So, in the context of judicial review, it has been accepted that the making of finds and the drawing of inferences in the absence of evidence is an error of law: Sinclair v Maryborough Mining Warden (1975) 132 CLR 473, at pp 481, 483."

29. The other authority on this issue to which I was directed was SFGB v Minister for Immigration & Multicultural & Indigenous Affairs at [19]:

"This argument, if it were made out, would be sufficient to establish that the Tribunal had made a `jurisdictional error' so as to found jurisdiction in this Court to intervene. If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: See Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-357. If the decision of the Tribunal was `Wednesbury' unreasonable or if the material on which the Tribunal relied was so inadequate that the only inference was that the Tribunal applied the wrong test or was not, in reality, satisfied in respect of the correct test, then there would be no jurisdictional error: See Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 (`S20') at 62, 67, 76, 90-91."

30. The applicant submitted that such a finding, in the absence of, or contrary to the evidence before it, formed part of the Tribunal's reasoning as to the general situation in Indonesia. It was submitted that the Tribunal's finding that there was only a remote chance of serious harm befalling the applicant if she were to return to Indonesia was thus flawed.

31. In respect of ground (a), it was submitted that the applicant gave evidence to the Tribunal in relation to different situations for wealthy Chinese close to President Megawati Sukarnoputri as opposed to described by the applicant in her interview before the Tribunal as the "little people" in the Chinese community. It was then claimed that the Tribunal characterised that evidence as a concern that discrimination experienced by Sino-Indonesians appears to differentiate between rich and poor and that people such as the applicant did not enjoy the same advantages as the wealthy.

32. It was submitted that the way the Tribunal dealt with the applicant's concerns in relation to continuing discrimination affecting poor Chinese by expanding it into a general observation that disadvantages "is doubtlessly true for all Indonesians of whatever ethnic background". It was submitted that this finding did not properly address the applicant's claim, the point being that there were particular circumstances affecting ethnic Chinese and the evidence in the relation to the protection afforded to the wealthy

33. Mr Smith, Counsel for the respondent, submitted that to satisfy this Court that it ought to exercise its discretion to grant the orders sought, the applicant must establish that there was some jurisdictional error in the Tribunal's reasoning or the procedure which it had adopted to review the delegate's decision. He submitted there was no allegation that the procedure was in any way unfair, so it must only be in the first respect, that the applicant makes her case. The applicant must establish that the Tribunal, in arriving at its conclusion that there was no well-founded fear of persecution, was arrived at because of some legal error, whether it be in a misunderstanding or misconstruction of its task by misunderstanding what is a refugee or simply by failing constructively to exercise its task.

34. In respect of ground (b), it was submitted by the respondent that it is not enough to allege that there is a particular finding for which there is insufficient evidence nor is it enough to show that there was no evidence of the particular fact unless that particular fact was either critical to the ultimate decision or it was expressed by the legislation to be an essential pre-condition to the exercise of power.

35. The respondent Counsel claimed that ground (b) proceeds on a misapprehension of what is required to establish jurisdictional error. It was not suggested that there was no evidence (or rational basis) for the Tribunal's lack of satisfaction as to whether the applicant met the criteria for the grant of a protection visa. That is, the ground does not address the jurisdictional fact upon which the Tribunal's power to affirm the delegate's decision was based. Rather, the applicant stated that another fact namely, "the number of Sino-Indonesians who were physically harmed or whose property was destroyed during the 1998 riots in fact remained extremely small" was not supported by the evidence. However, the applicant did not say that this fact was critical to the decision.

36. It was submitted that there was nothing in the Act making the question of whether or not "the number of Sino-Indonesians injured in the 1998 riots was small" a pre-condition to exercise of jurisdiction. It was submitted accordingly that no questions of a "no evidence" ground of jurisdictional error arose: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB per Gummow and Hayne JJ at [39] and Gleeson CJ agreeing at [1]. Section 65 of the Act sets out the requirements which are an essential pre-condition to the exercise of power by the Tribunal as to whether a particular applicant has met the criteria for the grant of a protection visa. If there is no evidence to justify the satisfaction or lack of satisfaction to meet the criteria, then it is clear that there will have been a jurisdictional error.

37. It was submitted that the applicant put her case on a much more difficult and narrow attack on an individual finding of fact, an anterior finding of fact which was not necessarily a pre-condition to an exercise of power. That fact must be examined in the light of the whole of the Tribunal's reasons, read broadly in accordance with the warning given by the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang. The Tribunal made four findings:

e) the applicant has not made any past claims of fears of persecution except for the claim of assault when she was twelve;

f) she was not in Indonesia at the time of the 1998 unrest;

g) there was no claim that her family has suffered any harm during that period; and

h) the general experience of Sino-Indonesians.

38. Based on these findings, the Tribunal then sought to examine what may happen to the applicant on her return to Indonesia. The analysis was based on four separate items:

a) a long history of discrimination and specific instances of violence;

b) since 1998 the State has made a number of changes and lifted a number of laws in respect of Chinese and their enjoyment of their own culture;

c) there has been no significant clashes in the major cities since the uprising and reports show the racially motivated attacks have dropped sharply since 1998; and

d) out of Indonesia's total population of 200 million which is distributed over 4,000 cities and towns, there are 5 million Sino-Indonesians. This indicates the large population is spread over a large area.

39. The Tribunal then came to the finding which was impugned by the applicant as follows:

"The number of Sino-Indonesians who are physically harmed or whose property was destroyed in fact remains extremely small."

40. The respondent conceded that that phrase did not come directly from any evidence or independent material before the Tribunal. However, it was claimed that it was a statement of evaluation from other facts found. It was submitted that the question for the Court was whether it was open on all the facts before it to draw that inference. Having regard to the relative numbers, it was submitted that the evaluation by the Tribunal was in fact open. However, perhaps more importantly than the fact that the finding was open to it, it was submitted that this particular finding did not necessarily lead to the conclusion by the Tribunal that the applicant did not have a well-founded fear of persecution. As the violence had decreased dramatically since 1998, the submission is that the outbreak of violence had radically reduced and the probability of danger was similarly reduced.

41. The respondent Counsel submitted that the most important issue raised in the Tribunal's findings and reasons is the second last paragraph in Court Book page 76. In that paragraph the Tribunal considered the attitude and ability of the Indonesian Government to protect Sino-Indonesians. It was in this paragraph that the well-foundedness of any fear in respect of ethnic riots was evaluated by the Tribunal. Where it was found that an applicant had a fear of persecution by a non-State agent, the willingness and ability of the State to protect against that will be a relevant consideration as to whether or not that person was a refugee. The question goes to three major facts:

a) the willingness of the State to provide the necessary convention nexus;

b) the Government's willingness and ability to protect the individual against harm and the prospects of that harm eventuating; and

c) the willingness of the applicant to avail themselves of the protection of the country by approaching the authorities outside of the country.

If these are answered in the affirmative and the applicant still does not wish to return, it raises the question as to whether the unwillingness to return is due to some other reason other than the fear of persecution. These matters were explored by the High Court in Applicant S152/2003.

42. It was the respondent's submission that the Tribunal assessed the question of the Indonesian Government'' willingness to protect, both at broad level and in respect of the possibility of being harmed in anti Chinese riots in the foreseeable future. It was only in respect of the second of those matters that the impugned fact, mainly the number of people harmed in 1998 riots, was relevant. The finding that the risk of being harmed in the future was remote, the anti Chinese riots, meant that there was no connection between the impugned finding and the ultimate decision of the Tribunal. It was submitted that firstly there was evidence which was probative of the findings that the number harmed was extremely small, bearing in mind it is an evaluation rather than a black and white finding. Secondly, that did not lead to nor was critical to the ultimate decision, because of the finding of effective protection, that the second ground cannot be made out.

43. In respect of the first ground, the respondent submitted that this relied on a very generous reading of what was said in one isolated comment by the applicant at the Tribunal hearing. It was submitted that if there was discriminatory legislation, one must assume that it applied across the board to Sino-Indonesians and that was the effect of what the Tribunal was putting to the applicant.

44. Further, in the terms of what the applicant said, it did not suggest that she was claiming that in a physical day to day sense the authorities did not protect or were not willing to protect Sino-Indonesians who were not wealthy. The comment did not indicate the attitude of the army or the police or any other agency of the State, which might be expected on a day to day basis to respond to any harm feared by the applicant or indeed any other Sino-Indonesian. The Tribunal extrapolated from the obscure comment of the applicant that the discrimination experienced differentiated between rich and poor.

45. It was submitted that the point made by the Tribunal, however is that the disadvantages are suffered across the board by the poor in Indonesia and not by reference to whether or not they are Sino-Indonesians. The Tribunal went on to consider whether poor Sino-Indonesians were a particular social group because that may be said to have been the claim constructively raised by the applicant's evidence. The Tribunal, however, rejected that claim.

46. It was argued that the Tribunal reached this conclusion because:

a) any disadvantage was due to poverty rather than because of ethnicity;

b) this did not apply to any particular social group;

c) the attitude of the Government and authorities towards ethnic Chinese as a whole.

47. My attention was drawn to the statement of the Tribunal's findings and reasons at page 76 of the Court Book:

"The Tribunal is satisfied that the government in recent years has shown itself willing to be able to extend state protection to ethnic Chinese citizens."

48. The respondent's final submission was that the Tribunal must make its findings based on the evidence before it and that evidence was:

a) the authorities tried in 1998 to quell the riots sometimes successfully, sometimes quickly;

b) that the Government was not always successful and that in some circumstances there was a total break down of law and order;

c) since 1998 the Government had abolished some discriminatory laws and lifted restrictions relating to the enjoyment of Chinese culture;

d) since 1998 the number and intensity of clashes had diminished radically or dropped sharply; and

e) during the 1998 disturbance, the Indonesian authorities were out in the streets protecting ethnic Chinese against ethnic Indonesians.

49. The question to be resolved was whether it was open to the Tribunal to draw from that material to support its findings.

Conclusion

50. The issue is whether the Tribunal erred in making its finding of fact in the absence of evidence or contrary to evidence before it resulting in jurisdictional error. If there is no instance to justify the satisfaction or lack of satisfaction to meet criteria, then it is clear that there will have been a jurisdictional error.

51. It is conceded that "the number of Sino-Indonesians who were physically harmed or whose property was destroyed in fact remained extremely small" does not come directly from any evidence or independent material identified by the Tribunal. However, it is an inference drawn from a number of individual pieces of information, which the Tribunal had open to it to make that finding. Irrespective of this finding, the Tribunal approaches the more important issue relating to the attitude and ability of the Indonesian Government to protect Sino-Indonesians.

52. The Tribunal evaluates the well-foundedness of any fear in respect of ethnic riots. Where it is found that an applicant has a fear of persecution by a non state agent, the willingness and ability of a state to protect against that will be a relevant consideration as to whether or not a person is a refugee. That evaluation was undertaken independently of the question as to relative numbers of Sino-Indonesian victims of the 1998 riots. There may have been an error as to the relative number of victims of the civil disturbance, however the appropriate tests to determine whether the applicant is a person to be offered refugee protection was properly applied. Similarly, the Tribunal may have misdirected itself in relation to the comment made by the applicant referring to "the little people" in the Sino-Indonesian community.

53. Some more fundamental error of law based upon a revision of the Act needs to be established. No such error has been identified by the applicant in these proceedings. The Tribunal appears to have applied the necessary elements of the legislative regime essential for it to arrive at the requisite state of satisfaction required under s.65 of the Act. If the Tribunal reached an erroneous inference on the relative number of people affected by the 1998 riots, or the interpretation of the reference to the "little people", these are no sufficient to conclude that the Tribunal reached an erroneous conclusion in its assessment of the refugee status of the applicant.

54. On the material before me no jurisdictional error is established in the Tribunal's ultimate decision. The application must be dismissed.

55. I am satisfied that an order for costs should be made in the circumstances of this matter. I order that the applicant pay the Minister's costs and disbursements of and incidental to the application.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: Menna McMullan

Date: 1 October 2004
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