FEDERAL COURT OF AUSTRALIA

Buchari v Minister for Immigration & Multicultural Affairs [2001] FCA 432

migration – review of decision of Refugee Review Tribunal – whether Tribunal failed to apply “real chance of persecution” test – whether a presumption of continuity of a past well-founded fear of persecution – whether Tribunal failed to consider effectiveness of State protection.

Migration Act 1958 (Cth)

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 considered

Minister for Immigration and Multicultural Affairs v Gui [1999] FCA 1496 referred to

Ahmed v Minister for Immigration and Multicultural Affairs [2000] FCA 123 referred to

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to

Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 referred to

TONNY BUCHARI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N61 of 2001

STONE J

SYDNEY

19 APRIL 2001

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1                     On 23 February 1999, the applicant, a citizen of Indonesia of Chinese ethnicity, applied to the respondent (“Minister”) for a protection visa pursuant to the Migration Act 1958 (Cth) (the “Act”). A delegate of the Minister refused to grant a protection visa on 15 October 1999, which refusal was upheld by the Refugee Review Tribunal (“Tribunal”) on 29 November 2000 in a decision handed down on 19 December 2000.

2                     Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees done at Geneva, as “amended” by the 1967 Protocol Relating to the Status of Refugees done at New York (“the Convention”). Article 1A(2) of the Convention provides that a refugee is any person who:

“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, 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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

Decision of the Tribunal

3                     The Tribunal considered the material before it, which included the applicant’s protection visa application, the oral evidence given to the Tribunal on 10 October 2000 and a submission made by the applicant to the Tribunal on 17 October 2000.

4                     The applicant’s claims, as understood by the Tribunal, can be briefly summarised.  Since the applicant was a child, he faced discrimination because of his Chinese ethnicity. At one period he was unable to attend school for several years because the Chinese schools were shut down. In 1969 and 1973 his house was stoned during racial riots. In 1976 the applicant claimed to have been attacked in the street by a person carrying a large cable. His finger was broken during this attack. Between 1980 and 1995, the applicant lived “a reasonable life style in Jakarta”. He claims, however, that because of the riots in Jakarta, since 1996, he has been afraid and stressed. During the major riots of May 1998, the applicant initially remained at home and then travelled to Singapore, then to Hong Kong, China, Malaysia and, finally, Australia. The applicant claims that the Indonesian government still promotes racism and that he fears future anti-Chinese riots as well as discrimination and persecution.

5                     The Tribunal referred to independent evidence regarding the problems faced by ethnic Chinese in Indonesia.  It noted that there was a long history of conflict between the indigenous Indonesians and those of Chinese ethnicity and commented that:

“In more recent years there has been some improvement in terms of official policy albeit that significant discrimination against the Chinese continues.”

6                      The Tribunal said that there had been serious rioting affecting the Chinese community over the years but that since the beginning of 1999 there had been “virtually no reports of anti-Chinese riots”. The Tribunal referred to a number of reports of violence in Indonesia that involved Chinese and to an April 1999 report of the Department of Foreign Affairs and Trade (“DFAT”). This report referred to communal tensions in Indonesia and stated that:

“Harassment of various Indonesian ethnic groups outside their ethnic home territory is not uncommon, but the victims of such actions can often secure refuge by relocating within Indonesia, although this represents a major dislocation to their lives”.

7                     The report commented that although the Chinese in Indonesia had reasonable grounds to fear for their safety if civil disorder should break out again, the risk needed to be kept in perspective. The report continued,

“As a very rough rule of thumb, we would doubt whether at any one time there would be a more than five percent chance any individual member of the ethnic group would be at risk of a physical attack, unless there was a generalised breakdown in law and order. That said, the risk remains randomly distributed through the community, and little could be done to predict where or when violence might break out. There is nothing to suggest that a Sino-Indonesian returning from overseas, even if they sought protection on the basis of having been subjected to some form of violence in the past, would be more vulnerable to attack than persons who had remained in Indonesia continuously.

Violence against Sino-Indonesians has not taken place as a result of state policy, rather it is a result of random rioting and civil unrest.”

8                     The Tribunal then went on to consider the position in Indonesia since the election of President Abdurrahman Wahid and Vice-President Megawati Soekarnoputri and referred to a DFAT report of November 1999. This report stated that:

“Wahid’s election should have positive implications for Indonesia’s diverse ethnic, racial, religious and social groups. He has a well-deserved domestic and international reputation for religious tolerance and his practice of a moderate traditionalist brand of Islam. He has championed interfaith relations, both in Indonesia and internationally.  During the Soeharto regime he was also involved in efforts to uphold human rights and build democratic institutions in Indonesia.”

9                     The Tribunal quoted from a Jakarta Post article dated 30 April 2000, which referred to the freedom of Chinese cultural expression now allowed. The article also referred to the President’s moves to assure the Chinese population of equal freedom citing, as an example, the appointment of  Kwik Kian Gie as coordinating minister of the economy, finance and industry.  The Tribunal also relied on other evidence to assess the likelihood of the applicant, being caught up in rioting in Jakarta. It referred to a statement made by a former US ambassador to Indonesia who commented that although there was some violence that “Jakarta, which is a metropolitan area of 25 million, bigger than most countries in the world, is largely at peace.”

10                  In considering the applicant’s evidence the Tribunal gave little weight to the incidents that occurred in the 1960s and 1970s as despite these incidents the applicant had been able to obtain education and good employment opportunities in Indonesia. As regards the applicant’s current situation, it stated:

“The applicant may continue to face some mild forms of discrimination on the basis of his ethnicity in his daily life. As set out above the ethnic Chinese have historically been the subject of discrimination by the indigenous Indonesian population. Part of the basis for this, appears to be resentment by indigenous Indonesians at the success of the ethnic Chinese in business. However, these general and mild forms of discrimination such as having to pay extra money to obtain official documentation are not so serious as to amount to persecution under the Convention.”

11                  The Tribunal separately considered the applicant’s claim that he would be caught up in rioting in Jakarta. It referred to independent evidence that suggested that recent occurrence of riots appeared to be unorganised, sporadic and not sanctioned by the Wahid government, that only a small number of Chinese Indonesians had been affected and that, following the election of the Wahid government, the incidence of rioting is likely to decrease further. It concluded that the applicant did not have a well founded fear of persecution because of his ethnicity and that the Indonesian government would act to protect members of the ethnic Chinese community against violence.

12                  The Tribunal also considered whether the applicant had a well-founded fear of persecution because of his Christian religion. It concluded that,

“there is only a remote chance that the applicant would have difficulties practicing his Christian religion were he to return to Jakarta. The reason for this view is that there is a very significant minority Christian population in Indonesia of some ten per cent of the population. The Constitution provides for religious freedom for members of five out of six officially recognised religions and belief in one supreme god. The Government generally respects these provisions…With the election of a moderate and tolerant President, Mr Wahid, there is only a remote chance that the applicant would experience any significant difficulties practicing his religion were he to return to Indonesia…The Tribunal is not satisfied that there is a real chance that the applicant would be unable to practice his religion were he to return to Indonesia. The Tribunal is not satisfied that there is a real chance that he would be harmed because he is a Christian were he to return to Indonesia.”

13                  The applicant was also concerned that the Indonesian government would notice the bridging visa ‘P’ in his passport and realise that he had applied for a protection visa. The Tribunal commented that it was “unaware of any reports that the authorities are interested in whether or not a person has applied for protection in Australia”. More importantly, it noted that the “P” did not stand for “Protection” but rather for “Primary Visa Holder” and that the Indonesian authorities would be unlikely to suffer from the same confusion as the applicant in this regard.

14                  For the reasons outlined above, the Tribunal concluded that the applicant was not a person to whom Australia had protection obligations under the Convention.

Application to the Federal Court

15                  The applicant submitted that the Tribunal had erred in that it had failed to apply the “real chance” test formulated by McHugh J in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 429 (“Chan”):

“an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted. Obviously, a far-fetched possibility of persecution must be excluded. But if there is a real chance that the applicant will be persecuted, his or her fear should be characterized as ‘well-founded” for the purpose of the Convention and the Protocol.”

16                  The applicant submitted that although the “real chance” test is referred to in the opening paragraphs of the Tribunal’s reasons for decision, the test is not adverted to in any other part of the reasons. The implication of this submission is that the Tribunal’s reference to the ‘real chance’ test is merely pro forma and not carried through into consideration of the applicant’s claim. The applicant’s submissions referred to:

·         the Tribunal’s acceptance that the applicant had, in the past, been the subject of physical attack and assaults on his home; and

·        its apparent acceptance of the DFAT report of April 1999 with its reference (quoted in [7] above) to there being a 5% chance of physical attack and its statement that “little can be done to pre-empt any attacks on Sino-Indonesians”.

17                  The defect in these submissions is that they concentrate only on one part of the independent evidence surveyed by the Tribunal. The Tribunal’s survey of the independent evidence examined the change in official attitudes to Sino-Indonesians in recent years. It noted that since the May 1998 riots there had been a marked improvement which, under the Wahid government, could be expected to continue. The independent evidence surveyed by the Tribunal included not only on the DFAT report of April 1999 but also more recent reports and evidence as summarised above. On the basis of this survey of the independent evidence the Tribunal was satisfied that:

“under the current Government, the Indonesian authorities would not tolerate ethnic violence directed at the ethnic Chinese and would not fail to protect members of the ethnic Chinese community in such incidents. … The independent evidence indicates that the Indonesian authorities would seek to restore order in situations of civil disturbance and act against those who have committed criminal offences.”

18                  The applicant accepted that the Tribunal had adverted to an expectation that the incidence of ethnic rioting would be reduced under the government of President Wahid. Nevertheless, relying on the comment of Gaudron J in Chan at 415, the applicant submitted that the Tribunal was obliged to consider whether there was a real chance of persecution in the light of the applicant’s own history. Mr Jackson, counsel for the applicant, submitted that the Tribunal was in error in that it had failed to do this.

19                  It is worth setting out Gaudron J’s comment in full:

“If an applicant relies on his past experiences it is, in my view, incumbent on a decision-maker to evaluate whether those experiences produced a well-founded fear of being persecuted. If they did, then a continuing fear ought to be accepted as well-founded unless it is at least possible to say that the fear of a reasonable person in the position of the claimant would be allayed by knowledge of subsequent changes in the country of nationality.”

20                  Mr Jackson interpreted Gaudron J’s comments as creating a presumption that if the applicant’s fear was well-founded in the past then it continues to be well-founded unless rebutted by evidence of changes in the country of nationality.  Mr Smith, for the respondent, submitted that, if this is the correct interpretation of Gaudron J’s comment, then the majority of the Court does not support it. He referred to comments of the other members of the Court in Chan in which each of the judges accepted the relevance of past experiences and fears: Mason CJ at 387, Dawson J at 399, Toohey J at 406 and McHugh J at 432. All accepted that a fear might cease to be well-founded if the situation in the relevant country changes so that a reasonable person would no longer hold such a fear. None of the judges in any way suggested that a past well-founded fear created any presumption of continuity.

21                  In Minister for Immigration & Multicultural Affairs v Gui [1999] FCA 1496 at [24]-[27] Heerey, Carr and Tamberlin JJ rejected a similar argument. Their Honours considered a submission by the Minister that the trial judge had erred in requiring the Minister to identify circumstances which ‘negate or qualify’ a finding that the applicant had, in the past, a well-founded fear. The trial judge had stated that,

“… here one is faced with a situation in which the RRT makes findings which, in my opinion, unless negated or qualified by other findings, would result in a conclusion that the applicant has a well-founded fear of persecution for a convention reason.” [emphasis added]

22                  Their Honours commented that:

“The observations of their Honours in Chan do not, in our view, warrant the application of a ‘negate or qualify’ approach in relation to the [past] events. To adopt such a formulation is to place a gloss on the words of the Convention, which call for a determination, as at the date of the RRT decision, as to whether a person then satisfies the requirements of refugee status.”

23                  In any event, even if Gaudron J’s approach were mandatory, it seems to me that the Tribunal’s approach here would satisfy it. The Tribunal placed considerable weight on the changes that have occurred in Indonesia in recent years. Effectively the Tribunal determined that any subjective fear that the applicant has is no longer well-founded because a reasonable person in the position of the applicant would be reassured by recent developments in Indonesia. That finding was open to the Tribunal on the independent evidence and cannot be interfered with by this Court: Ahmed v Minister for Immigration and Multicultural Affairs [2000] FCA 123 at [27].

24                  As indicated above, the applicant attached some significance to the fact that the “real chance” test was only mentioned in the opening comments of the Tribunal and not in relation to the specific claims of the applicant.  In response to this submission it is only necessary to refer to the comments of the majority of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272:

“the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.”

25                  The fact that the Tribunal has not expressly referred to the “real chance” test does not mean that the appropriate standard encapsulated by that test has not been applied. On the contrary there are several references in the Tribunal’s decision to risks being “remote”. As a “real” chance of persecution is commonly contrasted with a chance that is “far-fetched” or “remote”, it would seem that the Tribunal had the “real chance” test in mind in making such comments.

26                  It is also necessary to remember that however helpful the “real chance” test may be, the Convention refers to a “well-founded fear of persecution”. Provided the Tribunal has addressed that issue, it is not to the point if it did not specifically apply the “real chance” test. To suggest otherwise is to ignore the express warning of the majority of the High Court in  Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 at 576:

“In this and other cases, the tribunal and the Federal Court have used the term ‘real chance’ not as epexegetic of ‘well-founded’, but as a replacement or substitution for it. Those tribunals will be on safer ground, however, and less likely to fall into error if in future they apply the language of the Convention while bearing in mind that a fear of persecution may be well-founded even though the evidence does not show that persecution is more likely than not to eventuate.”

27                  The applicant also submitted that the Tribunal erred in that, while it found that the Indonesian government would seek to protect the applicant, it failed to consider if the government is capable of providing effective protection. In my opinion that submission is not made out. In setting out its findings under the heading, “State protection” the Tribunal stated:

“Moreover the Tribunal is satisfied that under the current Government, the Indonesian authorities would not tolerate ethnic violence directed at the ethnic Chinese and would not fail to protect members of the ethnic Chinese community in such incidents. It is true that individuals and property have been harmed in the past and particularly under previous Governments.

Clearly no State can ensure the complete safety of all of its citizens against all forms of harm, mistreatment or even death … but it [the State protection] would be adequate in Jakarta. The independent evidence indicates that the Indonesian authorities would seek to restore order in situations of civil disturbance and act against those who have committed criminal offences.”

28                  In my opinion this passage contains findings that the Indonesian government would be willing to protect the applicant and would be able to do so. The reference in the first paragraph that the government, “would not fail” to protect ethnic Chinese and the statement in the second paragraph that protection “would be adequate in Jakarta” are both express findings of the government’s capability.  In addition, the comment in the second paragraph that “no State can ensure the complete safety of all of its citizens” involves an implicit finding that protection would be available subject to the stated proviso.

29                  I am satisfied that the Tribunal’s decision does not contain reviewable error and for this reason the application must be dismissed with costs.

Associate:

Dated:              19 April 2001