FEDERAL COURT OF AUSTRALIA

Soebandi v Minister for Immigration & Multicultural Affairs [2001] FCA 781

SOEBANDI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 351 of 2001

SACKVILLE J

SYDNEY

22 JUNE 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

THE PROCEEDINGS

1                     This is an application to review a decision made by the Refugee Review Tribunal (“RRT”) made on 8 March 2001.  The RRT affirmed a decision of the Minister’s delegate not to grant the applicant a protection visa.

2                     The applicant is not legally represented.  His application to this Court identified two grounds:

“1.       The decision was induced or affected by actual bias of the [RRT member].

2.              There was no evidence or other materials to justify the making of the decision.”

Each of the grounds relied upon by the applicant is available as a ground of review of the RRT’s decision: Migration Act 1958 (Cth), s 476(1), (f) (actual bias) (g) (no evidence); see also s 476(4), which limits the scope of s 476(1)(g).

BACKGROUND

3                     The applicant is a citizen of Indonesia, from Bakasi Timur, now aged 56.  He is a single man of Chinese ethnicity and is a Christian.  He completed six years education in Indonesia and for a period of some ten years before leaving that country worked at a timber mill owned by his brother-in-law. 

4                     The applicant arrived in Australia on 12 March 1999, on a visitor’s visa.  He lodged an application for a protection visa on 19 April 1999.  This application was refused by the Minister’s delegate on 13 October 1999.  As I have noted, the delegate’s decision was affirmed by the RRT on 8 March 2001.

5                     The applicant claimed before the RRT that he feared he would become a victim of violence in Indonesia because of his Chinese ethnicity and the fact that he is Christian.  In particular, he claimed that the timber mill at which he had been employed had been burned down during riots in 1998 and that he had not worked after that time.  He also claimed that he had been beaten by rioters and suffered injuries during the disturbances.  He said that he had suffered injuries when a fight occurred between mill workers and the rioters who had set fire to the mill.  According to the applicant, his brother-in-law, the mill owner, had been killed during the attack.  The applicant said that he had been taken to hospital and thereafter stayed with friends until he left for Australia.

THE RRT’S DECISION

6                     The RRT noted that the applicant had expressed the fear that he would be the victim of anti-Chinese or anti-Christian violence in Indonesia.  The RRT identified the issue to be determined as whether his fears were well-founded. 

7                     The RRT considered in some detail the situation of Chinese in Indonesia.  The RRT summarised the position as follows:

“It is clear that Chinese-Indonesians have faced systematic, but low key discrimination in some areas for many years.  It is also clear that Chinese-Indonesians have been a target for violence during times of unrest in Indonesia.  While the ultimate cause of the 1998 unrest in Indonesia and the violence which accompanied it was economic and political, some Chinese-Indonesians were victims because of their ethnicity.  There also appear to be occasions on which the authorities were unwilling or unable to protect them.  However, the evidence does not suggest that people of Chinese ethnicity are generally excluded from education or employment, face serious impediments or restrictions on their movements or to their livelihood or are otherwise generally subjected to a degree of discrimination that amounts to persecution, notwithstanding some discriminatory legislation.  Nor does it suggest that Chinese people are generally subjected to physical attacks, nor that they are denied State protection during periods of civil [dis]order.  Furthermore, the current government is committed to fostering tolerance and to protection [of] Chinese-Indonesians.  In these circumstances, while a possibility of future outbreaks of violence cannot be ruled out, the chance of widespread anti-Chinese violence which would place all Chinese-Indonesians at risk of harm because of their ethnicity within the reasonably foreseeable future, is remote and insubstantial.”

8                     The RRT then considered the position of Christians in Indonesia.  It summarised the position, so far as Christians are concerned, as follows:

“…[t]he picture is one of a generally tolerant attitude towards mainstream Christians, who are generally permitted to practice [sic] their faith…without serious restrictions with episodes of localised violence directed primarily at the property of the Christian Church and serious outbreaks of inter-religious violence in some areas.  This violence is not condoned or tolerated by the government which regards such acts as criminal and treats them accordingly.  Thus, while the possibility of outbreaks of inter-religious violence or of mob violence against Christians cannot be ruled out, I am satisfied that Christians in Indonesia do not face a real chance of falling victim to physical harm or facing other serious problems because of their religion.”

9                     The RRT accepted that the applicant was fearful that he would become a victim of violence in Indonesia at some time in the future because of his Chinese ethnicity and Christian religion.  The RRT stated, however, that it did not find these fears to be well-founded. 

10                  Despite its acceptance of the applicant’s subjective fears, the RRT found that he had not been “completely honest” in the evidence he had given about his experiences during the 1998 riots.  The RRT noted that the applicant had made no mention of the destruction of the mill, nor of the alleged death of his brother-in-law in his submissions to the Department.  The RRT considered that he would not have failed to mention these matters if the claims were true.  Accordingly, it found that the claims were “concocted after the refusal of his initial application to bolster his claim for refugee status”.  The RRT also expressed doubts as to the genuineness of his claim that he had been injured during the 1998 rioting. 

11                  The RRT continued as follows:

“However, even if I accept all of [the applicant’s] claims regarding his experiences prior to his departure from Indonesia, I do not believe there is a real chance that he will be persecuted if he returns to Indonesia because of his race or his religion.  As discussed above, the evidence indicates that there has not been continuing violence against people of Chinese ethnicity in Indonesia since 1998 and, while there have been serious outbreaks of religious violence, they have been localised.  Generally speaking, the Indonesian authorities have acted to protect people regardless of their ethnic background or religion.  While the possibility of violence occurring some time in the future cannot be ruled out, the evidence does not suggest that there is a real chance of widespread or continued violence against people of Chinese ethnicity and/or Christian religion within the reasonably foreseeable future, such that Chinese Christians throughout Indonesia could be said to face a real chance of experiencing serious harm amounting to persecution.  I am therefore not satisfied that [the applicant] has a well-founded fear of persecution because of his race or religion or for any other reason in the Convention.”

reasoning

12                  A directions hearing was held in this matter on 10 May 2001.  At that hearing, the applicant was directed to file and serve any amended application and any evidence upon which he proposed to rely by 30 May 2001, some three weeks prior to the hearing.  Directions were also made for the filing of written submissions.  The applicant did not file any amended application and did not file any evidence in support of his claim that the decision of the RRT had been affected by actual bias.

13                  The applicant did, however, file written submissions.  It is clear from those submissions that the basis for the applicant’s claim that the RRT’s decision was affected by actual bias is his disagreement with the RRT’s reasons for affirming the delegate’s decision.  Mere disagreement with the reasoning of the RRT is not, however, a basis for imputing actual bias to the RRT member.  In Minister for Immigration and Multicultural Affairs v Jia; Re Minister for Immigration (2001) 178 ALR 421, Gleeson CJ and Gummow J endorsed (at 428, 438) a test of actual bias in the following terms:

“[there] must be a pre-existing state of mind which disables the decision-maker from undertaking or renders him unwilling to undertake any or any proper evaluation of the materials before him or her which are relevant to the decision to be made.” 

There is nothing whatsoever in the materials before the Court to suggest that the member had a pre-existing state of mind of this kind.

14                  The remaining submissions by the applicant, in effect, challenge the factual findings made by the RRT.  In his oral submissions, he repeated the substance of his claims before the RRT.  It is not, however, for this Court to reconsider the merits of the applicant’s claims.  It is for the RRT to make findings of fact.

15                  The RRT rejected as “concocted” a central element of the applicant’s claim.  In addition, it referred in some detail to country information and other independent evidence relating to the position of Chinese-Indonesians and Christians in Indonesia.  The RRT also dealt in some detail with evidence concerning the protection available to minority groups in Indonesia from the threat of ethnic or religious violence.  It concluded, on the basis of this material, that there was no real chance that the applicant would be persecuted if he returned to Indonesia, by reason of his race or religion.  It cannot be said, therefore, that there was no evidence or other material to justify the making of the decision for the purposes of s 476(1)(g) of the Migration Act.  Much less can it be said that the applicant has satisfied either limb of s 476(4) of the Migration Act, which limits the operation of s 476(1)(g) of the Migration Act.

16                  The application must be dismissed.  The applicant must pay the Minister’s costs.

Associate:

Dated:              22 June 2001

The Applicant was unrepresented.