Buchari v Minister for Immigration & Multicultural Affairs

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.