Hassim v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The applicant Mr Alexander Chris Hassim seeks judicial review of a decision of the Refugee Review Tribunal, ("the Tribunal") dated 23 February 2000 in which the Tribunal affirmed a decision of the respondent's delegate to refuse the applicant's application for a protection visa. 2 In order to be eligible for a protection visa an applicant must show that he is a person who: "owing to a 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." The applicant says that he has a well-founded fear of persecution by reason of his race, he being an ethnic Chinese living in Indonesia. 3 The applicant arrived in Australia on 4 August 1998, on an Indonesian passport issued in 1995. His date of birth was said to be 25 August 1961. On 24 August 1998, he applied for a protection visa. He said in his application that he had been born in Indonesia, that he was of Chinese ethnicity and spoke Chinese. He described his schooling as having taken place in Jakarta between 1967 and 1984. Thereafter between 1985 and 1998 he said that he was employed as a clerk in three different organisations, two of them being banks. 4 The application was accompanied by a letter containing a statement from the applicant. In that statement he said that the Chinese had been targeted by the native Indonesians. He came to Australia to seek protection as his house and shops in Jakarta had been looted and burned. Some of his female relatives living in Jakarta had been raped. He left Indonesia, because he could no longer live in fear of harm and threat to his life. He was afraid to go back as the possibility of being "killed by the mob" was high. 5 On 20 October 1998, the respondent's delegate refused the applicant's application. The delegate's decision cited country information relating to Indonesia which acknowledged the seriousness of the May 1998 riots and the difficulties faced by Chinese Indonesians but which indicated that there were some parts of Indonesia which were safe for ethnic Chinese people. 6 On 5 November 1998 the applicant applied to the Tribunal for review of the Delegate's decision. For some unexplained reason it was nearly 15 months before any further steps appear to have been taken. On 1 February 2000 the Tribunal hearing took place at which the applicant attended and gave evidence. He was assisted by an interpreter in the Mandarin language. No transcript of the applicant's evidence has been provided to me but a description of it was contained in the Tribunal's decision. Given the matters raised in this Court, it is appropriate to quote the Tribunal's description of the applicant's evidence before it: "The Tribunal asked the applicant to produce his passport which on, examination, indicated that he had travelled to Singapore, the UK and to Australia in the past. The Tribunal asked the reason for this travel, and the applicant replied that he had been looking for opportunities in the restaurant business. He was not able to tell the Tribunal the address of the restaurant he had worked in Jakarta, nor was he able to write it down. He was also unable to pronounce, or to write, his home address. Queried about his claims in his primary application, he stated that none of the details in his application were correct. His adviser had probably not been conversant with his Fujian dialect. Asked where he was born, he said, he was not sure but his mother had mentioned Walong. Asked to describe his experiences in Jakarta in May 1998, when, he had claimed, his house and shops had been burnt down, he said that it was dangerous for Chinese people to leave their homes and some men had had to guard their quarter. Although he himself had not suffered, his restaurant had been damaged. The Tribunal, in the Indonesian language, asked the applicant his name. He was unable to respond. The Tribunal then put to the applicant that it was not satisfied that he came from Indonesia. He then claimed to have arrived in Indonesia from Fujian in 1992, after his father had died and he had to take over his restaurant. The Tribunal then put to the applicant that even if he was a Chinese-Indonesian, as he had claimed, the DFAT report and other independent evidence cited below indicated that the chance of his being attacked or having his property damaged in the future was remote, and that since President Wahid had come to power in October last year there had been substantial improvements in the situation of ethnic Chinese in Indonesia. The applicant agreed that the attitude of the government towards ethnic Chinese had improved but stated that he would still face difficulties on the street." 7 On 23 February 2000, the Tribunal affirmed the delegate's decision to refuse the applicant a protection visa. In its decision the Tribunal, after discussing the concept of persecution and the requirements of the Convention, turned to the facts of the applicant's case. It described the applicant's evidence before it in terms which I have just quoted. It then turned to the independent country information which in this case came from DFAT and was dated 31 May 1999. This showed that racial unrest continues in Indonesia with sporadic and unpredictable acts of violence against Chinese Indonesians. However, given that there are approximately 6 million Chinese Indonesians the individual risk factor was not high. The report ventured to suggest a factor of about 5 per cent, unless there was a generalised breakdown in law and order. The Tribunal went on to note that since President Wahid came to power in October 1999 there have been significant moves towards reconciliation between ethnic Chinese and other Indonesians. 8 Finally, the Tribunal found that the applicant lacked credibility. It completed its decision in the following terms: "For the reasons which follow, the Tribunal is satisfied that the applicant has fabricated his claims in the hope of ensuring success in his application for a protection visa. I do not accept that the applicant is a citizen of Indonesia. He does not have even a basic acquaintance with the language, which he would have had he arrived in 1992, as he has claimed, and worked in the restaurant trade. Nor was he able to recall his home or workplace address as he should have reasonably been expected to have been able to do. He was uncertain as to where he was born. He claimed that his immigration adviser, a Mandarin speaker, had not been able to understand his Fujian dialect, and had therefore misrepresented his case, giving incorrect claims and personal details. His account of his alleged experiences during the May 1998 riots did not conform with the many accounts available to the Tribunal. The Tribunal finds that the applicant is not a citizen of Indonesia, as he has claimed and therefore his claims cannot be assessed against that country. Even if he were an Indonesian citizen of Chinese descent, the independent evidence is clear that the chance of his being persecuted for a Convention reason is remote." The Tribunal therefore concluded that the applicant did not satisfy the criteria for a protection visa. 9 The application to this Court for review of the Tribunal's decision was made on 7 April 2000. On its face, this would appear to be outside the 28 day period allowed in section 478(1) of the Migration Act 1958. That provision requires that an application under section 476 of the Act be lodged with the Court within 28 days of the applicant being notified of the decision. Under section 478(2) the Federal Court cannot extend the period specified in sub-section (1)(b). The decision was said to have been sent to the applicant on 24 February 2000. Accordingly, if regulation 5.03 of the Migration Regulations 1994 applied, it would be taken to have been received seven days later, on 2 March. The application was lodged more than 28 days after that date. 10 Accordingly, the respondent has lodged a notice of objection to competency. The applicant said in his application that he only received the Tribunal's decision on 6 April 2000. If that were correct then, in the absence of regulation 5.03, his application would have been lodged within the time specified in section 478. There are at least two decisions of this Court to the effect that regulation 5.03 is invalid. The matter is currently the subject of further appeals. In the circumstances, there is much to be said for adopting the approach suggested by the respondent in its written submissions, namely thatif the Court were otherwise minded to allow the application, it should defer handing down its decision pending the outcome of one of the appeals on this issue. However, it is the respondent's principal submission that the application should be dismissed in any event. 11 I turn to the terms of the application to this Court. It raises two grounds: first, that the decision was affected by actual bias under section 476(1)(f) of the Act and, secondly, that there was no evidence or other material to justify the making of the decision, that being a ground under section 476(1)(g) of the Act. 12 No particulars have been given of the ground of actual bias. There is a suggestion that the applicant asked for a further interview which did not take place. Clearly, the Tribunal member disbelieved the applicant's account, but he himself had given conflicting information as he conceded to the Tribunal. As the Full Court said, in Zaltni v Minister of Immigration & Multicultural Affairs [2000] FCA 399 at para [56]: "The nature of actual bias is well established and is simply that the decision-maker is so committed to reaching a certain decision as to be incapable of being persuaded not to do so." 13 There is no evidence whatsoever before me that the Tribunal member had prejudged the applicant's application or had a closed mind to the applicant's claims. The suggestion of actual bias cannot be made out. 14 As for the ground under section 476(1)(g), it is also necessary for an applicant to satisfy section 476(4) of the Act. That subsection provides as follows: "(4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless: (a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist." 15 The substantial matter which the applicant relies upon in support of this ground is that the Tribunal did not believe that he was born in Indonesia and was a citizen of that country. Today he has tendered a birth certificate with a translation which shows that Alexander Chris Hassim was born on 25 August 1961, in Ujang Pandang, this being consistent with the information set out in the passport which the applicant used when he first travelled to Australia. Ms Watson who appears for the respondent objected to the reception of the birth certificate upon the basis that it does nothing to further the applicant's ground of review under section 476(1)(g). As Ms Watson pointed out, the Tribunal was not prepared to accept that the applicant was the person identified in his passport, namely Alexander Chris Hassim, born 25 August 1961, in Indonesia. Given the applicant's inability to answer a number of basic questions relating to Indonesia and his inability to understand any Indonesian, the Tribunal's was finding was well open to it. It is difficult to see how the presentation of the birth certificate to the Tribunal would have affected its decision in this regard. 16 Section 476(1)(g) is not easy of application in a case where the Tribunal has not been satisfied that a claim for refugee status has been made out. The presentation of the birth certificate in this case is in itself quite insufficient to establish this ground. Nor is there any other material which could support such a ground. 17 It is to be noted that there were two strands to the Tribunal's ultimate decision. Even if the Tribunal had accepted the applicant to be an Indonesian, it still did not consider that, as an ethnic Chinese he had a well-founded fear of persecution on the ground of race. Accordingly, the production of the birth certificate could not in any event have impugned a fact on which the decision was based. 18 The applicant is not legally represented in this Court. Accordingly I have, as I always do in these cases, closely scrutinised the Tribunal's decision for any reviewable error. I am unable to find any such error. Accordingly, in my view the application must be dismissed. 19 The order of the Court is that the application be dismissed. The applicant is to pay the respondent's costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mathews.