FEDERAL COURT OF AUSTRALIA

Tjhia v Minister for Immigration & Multicultural Affairs [1999] FCA 1174

MIGRATION – application for review of Refugee Review Tribunal (“RRT”) decision refusing grant of protection visa –– whether there was an error of law – whether RRT decision-maker incorrectly interpreted the applicable law –– whether the findings were open to the decision-maker –– where the findings were of fact and degree – where the applicant was a member of the Chinese ethnic community living in Indonesia

WORDS AND PHRASES – “persecution”

Migration Act 1958 (Cth) ss 36(2) and 476(1)(e)

1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees, Article 1A(2)

RRT matter, No. V97/07946, cited

Periannan Murugasu v Minister for Immigration and Ethnic Affairs (unreported, 28 July 1987), followed

Minister for Immigration & Multicultural Affairs v Abdi [1999] FCA 299, cited

Refugee Review Tribunal, Decision and Reasons for Decision, V97/07946, Dr Rory Hudson, 17 July 1998, cited

FONG HOI TJHIA v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 135 OF 1999

TAMBERLIN J

SYDNEY

24 AUGUST 1999

THE COURT ORDERS THAT:

1. The application for review is dismissed with costs.

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

REASONS FOR JUDGMENT

1                     The applicant is a citizen of Indonesia, born in 1970, who arrived in Australia on 27 November 1994.  On 30 January 1998 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth) (“the Act”).  On 13 February 1998 a delegate of the Minister for Immigration and Multicultural Affairs refused to grant a protection visa.  On 19 March 1998, the applicant applied for a review of that decision.  The matter was heard before the Refugee Review Tribunal (“the RRT”).  On 19 January 1999, the RRT affirmed the decision of the Minister’s delegate.  The applicant applied to this Court on 17 February 1999 for a review of the RRT decision, and it is this application which is the subject of the current proceeding.

2                     The applicant claims that he is a refugee within the meaning of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (“the Convention”).  Article 1A(2) of the Convention defines a refugee as any person who:

“… owing to well-founded fear of being persecuted for reasons of … race … 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 …”

3                     The applicant’s family had lived in Kalimantan, but before the applicant was born they were forced by the hostility of the Dayaks towards the ethnic Chinese to move to the town of Sui Pinyuh.  In 1984 when the applicant was 14 years old, the homes of about a hundred ethnic Chinese families including his were burned.  He was at school nearby but was prevented by road blocks from returning home to rescue any belongings.  His belief was that the fire was lit by native Indonesians and he felt it showed the depth of their hatred for the ethnic Chinese.  The family experienced difficulties in having the police accept their report of the fires.  They were required to produce evidence that they had lived in the area, a requirement which the applicant said would not have applied to native Indonesians.

4                     Following these events, the family relocated to Bogor, which is about forty to fifty kilometres from Jakarta, where they still live.  They were said to have encountered obstruction from, and had to bribe, officials with whom they were required to register their intention to move.  The applicant again felt that these were difficulties experienced by ethnic Chinese but not by native Indonesians.  The applicant completed the final six years of his schooling in Bogor.  He says that while at school he was often threatened by other children who would demand money.  This happened, he said, more than once a month over the six years of his schooling.

5                     When he finished school the applicant went to university.  Most of the students were non-Chinese, whose education was subsidised.  The applicant’s non-Chinese friends used to tell him that he did not belong there, that he should go to a more expensive university.  He completed only one year, and then commenced to work as an accounts assistant with a company, which involved his travelling to various towns to complete audits.   After two years he changed jobs and became a salesman.  He was away from home on business trips for long periods of time and he eventually left this job voluntarily.  He did not enjoy the long absences from home, but he also found the job too risky.  He said the risks he most feared were traffic accidents.

6                     It was the opinion of the applicant that native Indonesians hate the ethnic Chinese.  He thought the reason for that was they were perceived as having lots of money.  They were exploited in many ways, for example by being required to pay more to obtain the issue of an identity card.  He said that he was almost certain that he would be targeted by criminals if he returned to Indonesia because of his Chinese ethnicity and that some serious harm would befall him. 

The findings of the RRT

7                     The applicant expressed concern that after five years absence from Indonesia he would lose his nationality.  After considering the relevant circumstances, the RRT considered that he ought to be assessed as a national of Indonesia. 

8                     The RRT accepted that the applicant had experienced extortion demands, but did not accept that the demands were made because he and his family were ethnic Chinese.   Further, while the applicant had expressed concern that he might be killed or injured by criminals who demanded money, there was no evidence of attempts to obtain police protection from criminal activities. 

9                     The applicant’s decision to seek refugee status was expressed to be motivated by an awareness that riots were increasing and that ethnic Chinese may suffer economic loss and physical injury in the riots.  He recounted no personal experiences of this kind nor any that had been experienced by his parents since his departure in 1994.

10                  The RRT looked at what it referred to as “independent evidence”, which was country intelligence that in recent times the anger of ordinary people in Indonesia manifested itself in violence against property and sometimes the persons of ethnic Chinese.  The RRT also accepted that there was support for the applicant’s claims concerning discrimination experienced by ethnic Chinese in their daily existence at the hands of indigenous Indonesians.  The RRT considered that the Chinese were perceived as being a distinct race and a particular social group by many ethnic Indonesian individuals, but that this was not endorsed by the government when it came to their rights as citizens, although there had been some discriminatory laws passed in the early days of Indonesian independence.  The RRT considered that the independent evidence showed that despite outbreaks of violence from time to time, and the fact that 1998 saw some such outbreaks, they were random and sporadic incidents.  It appeared that if unrest broke out, whether the initial cause was in any way connected with the Chinese community, the resulting disorder may develop into violence against the property, and on occasion the persons, of any ethnic Chinese citizens who happened to be within reach of the rioters at the time.  This was said to be what the applicant fears, that he would be in the wrong place when rioting began, whatever the cause. 

11                  In its findings the RRT stated that:

“Involvement in incidental violence as a result of civil or communal disturbance is not necessarily of itself persecution: Periannan Murugasu v Minister for Immigration and Ethnic Affairs [unreported, Federal Court, Wilcox J, 28 July 1987 at 13].  The fear of such involvement is therefore not necessarily a fear of persecution”

12                  The RRT found that what the applicant feared did not amount to persecution.

13                  Having reached its conclusion, the RRT went on to go through some of the history of discrimination against ethnic Chinese in Indonesia and the attitudes of the Indonesian government.  It found that the government was on its guard at times of heightened tension, and never abandoned its obligation and intention to protect all citizens including ethnic Chinese.

14                  Although the RRT found that the applicant, as a member of the ethnic Chinese community in Indonesia, has experienced and can in the future expect to experience some discriminatory treatment; it was not satisfied that it amounted to persecution for the purposes of the Convention.  For these reasons the RRT was not satisfied there was a real chance the applicant would because of his membership of the Chinese community suffer harm amounting to persecution.  The Tribunal held that the applicant did not satisfy the criteria set out in s 36(2) of the Act for a protection visa, namely that he was a refugee.

Grounds of reviewThe applicant’s submissions 

15                  For the applicant it is submitted that in an earlier RRT matter, No. V97/07946, the Tribunal member, “representing the Minister”, on 17 July 1998, made an interpretation of the applicable law from the case of Periannan Murugasu v Minister for Immigration and Ethnic Affairs (unreported, 28 July 1987) (“Murugasu”).  It said that on 19 January 1999, the RRT in the present case seemed to reach the opposite interpretation on similar facts.  It is then submitted that the situation concerning ethnic Chinese in Indonesia up until 17 July 1998, was identical for both the applicant in RRT reference V97/07946 and the applicant in the present matter.  It is finally submitted that the reasons for decision in that earlier matter accepted the correct interpretation of the applicable law and correctly applied that interpretation to the facts.  The RRT member in the earlier case decided that the applicant was a refugee.  By inference, the submission in relation to the present case is that there was an error of law in the interpretation and application of the law as stated in Murugasu: see s 476(1)(e) of the Act.

16                  As to the submission concerning the differences in interpretation of Murugasu in the two matters, it seems to me that there was no difference in substance.

17                  In Muragasu’s case Wilcox J said this (at p 13):

“The word ‘persecuted’ suggests a course of systematic conduct aimed at an individual or at a group of people.  It is not enough that there be fear of being involved in incidental violence as a result of civil or communal disturbances.  I agree with counsel for the applicant that it is not essential to the notion of persecution that the persecution be directed against the applicant as an individual.  In a case where a community is being systematically harassed to such a degree that the word persecution is apt, then I see no reason why an individual member of that community may not have a well-founded fear of being persecuted.

Questions of degree are involved, both as to the extent of harassment which exists in a particular case and as to the continuity of that harassment, so as to answer the question whether it amounts to persecution.  Conclusions of fact have to be made.”

18                  The decision-maker in V97/07946 (a different member of the RRT to the member who sat in the present case) said of the observations by Wilcox J quoted above:

“In my opinion the key word … is ‘incidental’.  I believe his Honour intended to point out that if a person is not deliberately persecuted but merely becomes an incidental victim of violence which is occurring around him or her, then this is not a Convention-related case.  This would be because the violence would not occur ‘for reasons of’ one or more Convention grounds; nor would there be the necessary motivation on the part of the persecutors to harm the victim…  The situation would be comparable to the situation of the person who was the victim of natural disaster.”

19                  The decision-maker then went on to observe that other Australian cases had endorsed the views of Wilcox J, and had clearly stated that it is not necessary for a successful applicant for refugee status to show that he or she would be singled out for persecution. 

20                  In the present matter, the RRT referred to Murugasu and said (at Appeal book (“AB”) p 63-64) that:

“Involvement in incidental violence as a result of civil or communal disturbance is not necessarily of itself persecution: …. The fear of such involvement is therefore not necessarily a fear of persecution.” (Emphasis added)

21                  The important words in the above quotation are “not necessarily”.  What this qualification means, is that simply because a person is caught up in incidental violence arising from civil or communal disturbance, it does not follow that the person is persecuted for a Convention reason.  There must be more, namely, something to show that the violence is directed to a person or group for a Convention reason: see, for example, Minister for Immigration & Multicultural Affairs v Abdi [1999] FCA 299 at 13.  The involvement of a person in “incidental” violence does not bear, without more, the necessary characterisation to bring it within the operation of the Convention definition.  This is a correct statement of principle and does not disclose an error of law.

22                  A further question arose as to whether the RRT had been inconsistent in its treatment of a Department of Foreign Affairs and Trade (“DFAT”) cable, JA 18312 of 22 June 1998.  This cable was found in the present matter to support the summary of events set out in the independent evidence, and also the conclusion that the Indonesian government continues to have an intention to protect all its citizens.  In the earlier case V97/107946, the decision-maker expressed the view that the same cable provided a “pretty slender basis” for forming a conclusion about the situation of the Chinese in Indonesia.

23                  In considering the fact that two different RRT members gave different weight to the contents of a DFAT cable in cases involving different persons with different histories, it is difficult to see how such a difference in emphasis can give rise to an error of law or principle which of itself makes one or both of the decisions amenable to judicial review.  For example, in addition to the information contained in DFAT cable JA 18312, in V97/07946 there was a great deal of additional country information and articles itemised at length, together with what may be termed an in-depth investigation of the position having regard to such intelligence.  Furthermore, the Tribunal received additional advice from Professor Copple of the Department of History in the University of Melbourne, who on 19 May 1998 expressed his view of the situation at that time.  This additional evidence was not before the RRT in the present case.

24                  Although there are similarities between the two cases, insofar as the political situation was concerned in the first half of 1998 in Indonesia, I am not persuaded in light of the above discussion that the conclusion reached by the RRT member in the present case was not open on the evidence before him.

25                  In this case, the RRT member recognised that at various times economic dissatisfaction could develop into violence against the property of ethnic Chinese citizens.  However, specific affirmative findings were made that such incidents were random and sporadic, and that if unrest were to break out, resulting disorder may develop against the property or person of ethnic Chinese citizens who happen to be within reach.  Having taken this into account, the RRT found that there is only a remote chance that the applicant might be involved in such an incident and an even more remote chance that he would be exposed to serious harm or injury.  Furthermore, there was a finding that the events of rioting and violence had been localised and rare.  In my view, the findings were questions of fact and degree which were open to the RRT on the evidence and the reasoning discloses no reviewable error.

26                  Accordingly, for the above reasons, the application for review in this case should be dismissed with costs.

Associate:

Dated:              24 August 1999