SZHPJ v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The appellant is a citizen of Indonesia, who arrived in Australia on 24 June 1996. On 12 September 1996, he lodged an application for a protection visa under the Migration Act 1958 (Cth) ('the Act'). On 24 April 1997, a delegate of the first respondent, the Minister for Immigration and Multicultural Affairs ('the Minister'), refused to grant a protection visa. On 26 May 1997, the appellant sought review of that decision by the second respondent, the Refugee Review Tribunal ('the Tribunal'). On 29 January 1998, the Tribunal affirmed the decision not to grant a protection visa. Ultimately, the appellant commenced a proceeding in the Federal Magistrates Court of Australia seeking judicial review of the Tribunal's decision on the basis that it was attended by jurisdictional error. 2 The primary judge in the Federal Magistrates Court dismissed the proceeding on 22 June 2006. His Honour found that there was no jurisdictional error on the part of the Tribunal, but concluded that, even if he had accepted the arguments of the appellant, he would have refused relief in the exercise of judicial discretion, having regard to the delay in the commencement of the proceeding in the Federal Magistrates Court. This appeal is brought pursuant to notice of appeal filed on 13 July 2006. When the matter was called on for hearing today, I granted leave for the appellant to file an amended notice of appeal. That leave was granted without objection on the part of the Minister. 3 It is necessary to say something about the claims of the appellant before the Minister and the Tribunal. The appellant worked in a business that belonged to the family of another individual ('the Employer'). The Employer was the manager of the business, which was engaged in transportation and saw milling. Over a period of 15 years, offers were made by the government to the Employer's family to purchase the property on which the business was carried on. The offers were rejected. 4 On 29 July 1995, a number of police and army officers came to the Employer's property seeking to intimidate the Employer and his family into agreeing to sell. On the same day, the police threatened to take the Employer's father into custody because he refused to discuss the sale of the property. A physical confrontation ensued involving members of the Employer's family and employees of the business, including the appellant. In the course of the confrontation, injuries were inflicted on one of the police officers. Members of the Employer's family and four employees, including the appellant, were taken into custody. They were held in detention for one week but were subsequently released on bail. All six were required to report to the police station twice daily. The business was closed by the police on the day after the incident of 29 July 1995. 5 A second claim made by the appellant was that the Employer's family and all the employees of the business are members of the prohibited Islamic group Islam Jamaah. The appellant claimed to be a member since 1994. He said that he encountered no problems prior to the incident of 29 July 1995, but that after that incident the Employer's family and the employees of the business were banned from attending the local mosque and were ostracised by the local community. The appellant claimed that the authorities acted against the Employer's family and the employees, denying them their right to practise their religion. The appellant claimed that, if he returns to Indonesia, he fears he would have to report twice daily to the police and that he would be precluded from employment because of that reporting requirement. The appellant also claimed that he would be denied the right to practise his religion and that he would be detained, since he had breached the reporting conditions. 6 The Tribunal found that the adverse treatment of the appellant and the family of the Employer related to continued refusal of the Employer's family to sell the property for redevelopment and the resulting confrontation on 29 July 1995, during which a police officer was injured. That was characterised by the Tribunal as a criminal act. The Tribunal found that there was no evidence that the authorities in Indonesia viewed that other than as a criminal act. The Tribunal observed that the enforcement of ordinary, enforceable criminal law, or laws designed to protect the general welfare of society, do not amount to persecution. The Tribunal observed that the appellant admitted to being present during the 29 July 1995 confrontation, during which he himself committed assaults against three police officers, although he claimed they were in self-defence. The Tribunal considered that being implicated in the prosecution of such criminal law, either being accused as an accessory or having committed criminal acts, did not amount to persecution. 7 The Tribunal considered that the land dispute was simply a civil dispute. There was no evidence that indicated that the government would be expected to impute a political opinion to the appellant. The Tribunal found that the sole reason the appellant and the Employer's family were taken into custody, following the confrontation in question, was the altercation over the land dispute. While the appellant may fear for his safety if he were to return to Indonesia, the Tribunal considered that the fear was solely due to the assaults on police officers, which he had on his own admission committed, or to which he was a possible accessory. The Tribunal concluded that that was not Convention related. 8 In relation to the appellant's alleged involvement in Islam Jamaah, the Tribunal found that, due to the absence of knowledge of that organisation's history, the appellant was not a member of the organisation. The Tribunal considered that, even if he were a member, it was implausible that the authorities would actively collaborate with a member of a prohibited terrorist organisation, allowing him to leave the country without any difficulty, as the appellant had done. The Tribunal considered that there was no evidence that the appellant suffered any mistreatment or hardship at the hands of the authorities due to his membership of the organisation, or that the authorities were interested in him because of such membership. 9 In his further amended application to the Federal Magistrates Court, the appellant raised two grounds. The first was that the Tribunal erred in failing to consider the appellant's claim based on his belonging to a particular social group, said to consist of the owners and the employees of the family business. Secondly, it was said that the Tribunal erred in failing to consider, as an integer of the appellant's claim, fear of persecution based on imputed political opinion. It was said that the Tribunal failed to deal with the appellant's claim that he was persecuted by being banned from attending the local mosque and denying him his right to practise his religion because the authorities imputed a political opinion to him. The political opinion was simply being against the government. In the notice of appeal to this Court, the appellant in effect reiterated those grounds, saying that the Federal Magistrates Court erred in failing to find jurisdictional error on the bases that I have just outlined. 10 Counsel for the Minister took the Court to the transcript of the evidence given by the appellant to the Tribunal. Specifically, it was put by the Tribunal member to the appellant that the problems that he confronted in Indonesia revolve solely around the fact that he had participated in an assault on a police officer, which was a criminal act, and that the appellant did not fear returning to Indonesia for a Convention reason. The appellant's response was that his fear of returning to Indonesia was his fear of the police force. 11 The appellant was then asked about his claim to fear persecution because of his membership of a prohibited organisation. It was put to the appellant that all the problems about which he spoke to the Tribunal flowed from the incident involving the police. The appellant's response was that he had been detained by the police and he had to report, and that he could not do that because it would interfere with his daily activities and he could not look for work. He also asserted that he could not pursue his religious beliefs by going to the mosque. He said that that was because he belonged to Islam Jamaah. 12 In light of that exchange, and the treatment of the claims by the Tribunal, albeit somewhat cursorily, I do not consider that there was jurisdictional error on the part of the Tribunal in either of the respects asserted. The finding of the Tribunal, which was open to it on the evidence, was that any harm that the appellant feared resulted solely from his involvement in the incident in which a policeman was injured. It had nothing to do with alleged persecution of a particular social group consisting of the owners and employees of the business in question. 13 There is no basis for saying that the appellant made a claim before the Tribunal that he was prohibited from going to his local mosque because of his membership of the group consisting of the family and employees. To the extent that he suffered any detriment at all it was because of his involvement in the incident in which a policeman was injured. The criminal assault was what gave rise to the appellant's concerns and difficulties, if there were any. It was not simply because he was an employee of the business. 14 So far as it is said that the appellant feared persecution because of his imputed political opinion, the primary judge correctly concluded that there is simply no evidence to support such a claim. It may well be that the incident arose out of acts of the government in endeavouring to acquire the property in question, but there is no basis for suggesting that any treatment of the appellant was the result of some perceived anti-government political opinion on his part. 15 There was no error on the part of the Federal Magistrate Court in concluding that there was no jurisdictional error on the part of the Tribunal. It is not strictly necessary, therefore, to consider the question of delay. The complaint in relation to the exercise of discretion by the primary judge is that the exercise of discretion miscarried because his Honour acted upon a wrong principle and because his Honour failed to consider a matter that should have been considered. 16 The first complaint is that his Honour stated that inability to obtain legal advice is not of itself an explanation for delay, nor is financial hardship. I do not consider that there was any misstatement of principle in that regard. The only authority relied on by the appellant for suggesting that such a proposition is wrong is the decision of the Full Court in S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283, in which the Court observed that there had been no evidence of impecuniosity. The contention was that, by implication, had there been evidence of impecuniosity, that would have been a relevant consideration. However, as counsel for the Minister pointed out, the primary judge simply observed that financial hardship is not of itself an explanation for delay. His Honour did not say it was completely irrelevant. 17 The appellant says that the primary judge failed to take into account the consequence of exercise of the discretion against the appellant. In particular, he said that the primary judge failed to have regard to the fact that the appellant, assuming his claims were justified, would be returned to Indonesia, where he would be subjected to the detriment that he claimed, namely he would have to report twice daily, he would be precluded from employment due to the reporting requirement, he would be denied the right to practice his religion and be detained because he has breached his reporting conditions. 18 The Tribunal, of course, found that he would not be denied the right to practise his religion, because he is not a member of the group he claimed. Putting that aside, the only submission that was made to the primary judge was that this case involved life and death issues. In so far as it is said that all protection visa applications involve life or death issues, the submissions clearly has no basis. It is clear that his Honour was dealing with an application for review of a decision concerning a protection visa. In so far as it is said that there were specific life and death issues raised in this case, that is simply not what was alleged by the appellant. The highest that he put as fear of persecution is that he would be required to report daily in connection with the alleged incident involving the police. 19 I do not consider there was any error on the part of the Federal Magistrates Court. The appeal should therefore be dismissed. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.