Tjoanardi v Minister for Immigration & Multicultural Affairs

Consideration 14 I agree with each of the rejoinders of Ms Kennedy to the submissions of Mr Krohn. I do so for the following reasons: (a) It was unnecessary for the RRT to make clear findings on whether the harm alleged to have been done to Ms Tjoanardi occurred in 1996. A fair reading of the reasons of the RRT suggests that the RRT assumed the harm to have occurred but found that it did not occur for a Convention based reason. The facts which Mr Krohn contends ought to have been the subject of a clear and precise finding were not material questions of fact in the sense discussed in Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845 at paras [55] to [57] per Black CJ, Sundberg, Katz and Hely JJ.

(b) I also reject Mr Krohn's submission that the RRT breached s430 of the Act by failing to refer to Ms Tjoanardi's claim that her rape was caused by her ethnicity in the context of a finding of a lack of evidence from her "account of the circumstances" that she was raped and robbed for being Chinese. The account of the circumstances was set out in the third paragraph of her statement accompanying her application which was before the delegate. That paragraph was as follows: "The most serious incidence (sic) was on 10 October 1996, which is a day that I will never forget. There were four gangsters (all of them were native Indonesian), they came and kidnapped me in front of my shop and took me into a small house. They took all my money, gold necklaces, diamond rings and expensive watch and then they started ruthlessly raping me in turn for as long as six hours." That account of the circumstances did not in terms refer to Ms Tjoanardi's ethnicity. However, the RRT was obviously alive to her claim that her treatment related to her ethnicity as it was one of the major planks of her submission before the delegate and before the RRT. (c) I hold the same view about "the failure to afford protection" point. There was no basis for the finding of the existence of any social group in any event as persecution on the basis of ethnicity had been rejected by the RRT. It is unnecessary to determine if the requirements for the existence of such a group as referred to by Goldberg J in Jayawardene v Minister for Immigration & Multicultural Affairs [1999] FCA 1577 have been established. (d) The complaint about the failure of the RRT to address the harm done to Ms Tjoanardi's relatives does not truly relate to a material question of fact in the Singh sense, having regard to the RRT's ultimate finding that the prospect of the repetition of such an event was remote. I consider that, on a fair reading of the RRT's reasons, the RRT did not fail to make a finding on whether there was a real chance of persecution if Ms Tjoanardi was returned to Indonesia on account of a single act of persecution being directed at her. I do so given that the claims about the 1998 events were put in the context of a fear of a recurrence of a riot. (e) I also see no basis for the allegation that the RRT's decision was affected by actual bias. The complaint appears to have the flavour of an invitation to the Court to engage in merits review. Indeed, the following observations of Merkel J in Xavier v Minister for Immigration and Multicultural Affairs [2000] FCA 927 at para [13] are apposite: "It was submitted that the Tribunal had brought a closed mind to the issues before it. It is not easy to see how that ground can properly be raised on the basis of the material before the Court. The only material relied upon in support of the ground were actual findings made by the Tribunal in its reasons for decision. In making its decision, the Tribunal is disposing of the matter and is required to reach conclusions. The issue of bias in the sense of having a closed mind relates to the role of the Tribunal prior to making its decision. Nothing has been raised before me that suggests that, in discharging its function of giving the applicant an opportunity to be heard, or indeed any other function prior to its decision, the Tribunal approached the resolution of the present matter with a closed mind. Accordingly, the allegation of actual bias must be rejected." Mr Krohn highlighted two strong adverse statements about the evidence of Ms Tjoanardi which were made by the RRT. However, confident findings of that sort, even if on their face surprising, do not suggest that it was not open to the RRT to so find (see Xavier at paras [15] to [17]). 15 Accordingly, I order as follows:

1. The application be dismissed.

[2000] FCA 927