Specialist in Australian Immigration, Migration Consultant and Online Australian Visa Assessment Service.
Australian Immigration Specialists - Australian Immigration Consultants Online Australian Visa Assessments for immigration to Australia
  Research Home

Categories
Administrative Appeals Tribunal
Federal Court
Federal Magistrates Court
Full Federal Court
High Court
Migration Review Tribunal
Other Jurisdictions
Refugee Review Tribunal
Recently Added
Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September 2001)
Singh v Commonwealth of Australia [2004] HCA 43 (9 September 2004)
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

"Use the Migration Specialists that migration agents use"
Cases

MIGRATION - Review of a decision of the Refugee Review Tribunal - whether the Tribunal erred in finding the applicants' fear of persecution was not well founded - no reviewable error found.

NAFX v Minister for Immigration [2002] FMCA 156 (25 July 2002)

NAFX v Minister for Immigration [2002] FMCA 156 (25 July 2002)
Last Updated: 13 August 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAFX v MINISTER FOR IMMIGRATION

NAFY v MINISTER FOR IMMIGRATION
[2002] FMCA 156

[2002] FMCA 157



MIGRATION - Review of a decision of the Refugee Review Tribunal - whether the Tribunal erred in finding the applicants' fear of persecution was not well founded - no reviewable error found.



Migration Act 1958 (Cth) s.474

Applicant:
NAFX



Respondent:


MINISTER FOR IMMIGRATION, MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 477 of 2002



Applicant:

Respondent:

File No:
NAFY

MINISTER FOR IMMIGRATION &, MULTICULTURAL & INDIGENOUS AFFAIRS

SZ 476 of 2002



Delivered on:
30 July 2002



Delivered at:


Sydney



Hearing Date:


25 July 2002



Judgment of:


Raphael FM



REPRESENTATION

For the Applicants:


Applicants in person



Counsel for the Respondent:


Mr T Reilly



Solicitors for the Respondent:


Sparke Helmore


ORDERS

(1) Applications dismissed.

(2) Each applicant pay to the respondent the sum of $2,500 by way of costs.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 477 of 2002

NAFX


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent

SZ 476 of 2002

NAFY




Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. These two applications for review of the decision of the Refugee Review Tribunal were heard together. The applications were brought by a brother and sister of Indonesian nationality, Chinese ethnicity and Christian religion.

2. Both applicants arrived in Australia on 27 January 2001. On 8 March 2001 they both lodged applications for protection (class XA) visas with DIMIA. On 12 April 2001 a delegate of the Minister refused to grant protection visas and on 10 May 2001 the applicants applied for a review of that decision. The decision on review was made on 1 March 2002 and handed down on 27 March 2002.

3. Both applicants had received the benefit of the Minister's Sydney pilot scheme for the provision of legal assistance. They were not represented at the hearing but they had had the proceedings explained to them. The female applicant who spoke for both herself and her brother confirmed that they had received the Minister's written representations prior to the hearing.

4. The applicants claim a well-founded fear of persecution arising out of the fact that they are both Chinese and Christian. They argue that both minorities are persecuted in Indonesia. They lived in Jakarta before arriving in Australia.

5. The applicants provided the Minister's delegate and the Tribunal with details of incidents which evidenced their well-founded fear of persecution. The female applicant alleged that she was bashed during a demonstration in Jakarta in November 2000 and that prior to that her family house had almost been burned in May 1998. However, at the Tribunal hearing the applicant advised that these particular incidents of mistreatment had not occurred and instead she substituted an incident which occurred approximately two years ago when she was hit on the head by a trishaw driver. She advised the Tribunal that she believed that she had been assaulted because of her Chinese origin. The female applicant also referred to an incident in 1998 when she arrived at a church to find that there had been a bomb scare there. The bomb did not explode and she was not harmed. The applicant alleged a general fear of travelling outside her home in Jakarta.

6. The male applicant also resiled from the claims of injury during a demonstration and the near burning of his home. In their place he substituted an incident which had occurred when he was in senior high school and was assaulted by a group of street kids because, he believed, of his Chinese ethnicity.

7. Both applicants expressed to the Tribunal their concern of the treatment of Christians and persons of Chinese ethnicity in Indonesia.

8. The Tribunal considered their claims and a significant amount of in-country information which was reproduced in the Court Book. This information indicated that whilst both ethnic-Chinese and Christians have been the subject of persecution in Indonesia in the past the situation had improved considerably since the election of President Wahid in 1998. The Tribunal acknowledged that there was still a serious problem with members of the Christian religion in the Ambon district. However, the evidence indicated that there was no such danger in Jakarta where the applicants had lived.

9. The applicants in their submissions informed the court that they believed that the Tribunal had not looked at the facts in Indonesia. They felt that the information which the Tribunal had obtained was incorrect. They said that there were still difficulties in Indonesia and that they were afraid to return to the country. The female applicant was particularly frightened of an anti-Christian group known as the "Jihad". She said that she would never feel safe outside her home when in Indonesia. They would not be able to take the bus safely as they could in Australia.

10. The respondent submitted that the applicants were doing no more than seeking from the court a different decision on the merits, based upon a different reading of the facts, than that provided by the Tribunal. This, the respondent argues, has never been the function of judicial review, still less a judicial review which is subject to a privative clause of the type contained in s.474 of the Migration Act 1958 (Cth).

11. I would have to agree with this submission. In the light of the lack of evidence of actual persecution or reason to fear persecution provided by the applicants the Tribunal was entirely within its powers in coming to a decision on the country information available to it that the applicants had failed to make out a case of a well-founded fear of persecution. The decisions, appear to me to be models of their kind and do not indicate on their face any matters which might reasonably constitute reviewable error.

12. I dismiss the applications. The respondent has advised that it would accept an assessment of costs in the sum of $3,100 in respect of each applicant. As these were very short and uncomplicated matters I order that each applicant pay to the respondent the sum of $2,500 by way of costs pursuant to my powers under Part 21, rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 30 July 2002
Australia Immigration Consultants and Online Australia Visa Assessments for immigration to Australia