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[1998] FCA 1091
Federal Court of Australia
1998-08-27
Toohey J, Madgwick J
Original judgment source is linked above.
REASONS FOR JUDGMENT HIS HONOUR: The applicant is a 28 year old national of Indonesia of Chinese ethnicity. From 1986 to 1994, he was employed in Indonesia as a courier. He arrived in Australia on 16 January 1995 on a valid passport. On 25 October 1996 he made an application for a protection visa to the Department of Immigration and Ethnic Affairs. On 30 April 1997 the applicant was notified by a delegate of the Minister that his application had been refused, on the basis that he did not meet the criterion for a protection visa and thus was not a person to whom Australia owed protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol ("the Convention"). On 19 May 1997 he applied for a review of the primary decision to the Refugee Review Tribunal ("the Tribunal"). On 12 February 1998 the applicant appeared before the Tribunal and gave evidence. On the same day the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa. The applicant now seeks a review of the Tribunal's decision, although the applicant has not stated the grounds upon which the review is sought. The applicant is not represented by legal counsel and does not speak English, although he has been assisted by an interpreter. The applicant was, one may say of course, unable to submit to me any legal basis upon which the review should proceed. In the circumstances, I have considered the matter for myself to try to determine whether the Tribunal has made any error of law. The unsatisfactoriness of this hardly needs to be stressed, but in a situation of governmental parsimony as to legal aid and where considerations of "human fate", in a phrase of Toohey J's, are involved, it seems to me that humanity dictates that I so proceed.
The Tribunal's decision The Tribunal summarised the applicant's circumstances and claims as follows: "The applicant claimed that as a Chinese Buddhist, there were constant violations of his freedoms. He claimed that he could not preserve his culture or practice his religion. He claimed that because his father had been a political prisoner, he had been unable to get a good conduct certificate to get a government job. He claimed that his father had been involved with a banned Chinese Commerce Organisation and has been arrested for challenging its closure. The applicant referred to outbreaks of racial strife in Indonesia since the 1970s. Through his legal adviser, the applicant gave us examples of government discrimination the prohibition on Chinese working in government departments, the requirement for Chinese to be assimilated into Indonesian society, the closure of Chinese schools, the ban on Chinese newspapers the requirement for Chinese to carry a coded ID card, a ban on the importation of Chinese language materials, restrictions on Chinese entry to public schools and universities, a ban on the celebration of Chinese festivals, the requirement for Chinese to adopt Indonesian names, propaganda urging Chinese to marry non-Chinese, restrictions on trade, and various cultural prohibitions. He claimed that as a Chinese he had to pay more in bribes than ordinary Indonesians. The applicant claimed that he lived in a Muslim neighbourhood and that his neighbours objected to Buddhist prayer meetings. He claimed that sometimes his house would be sprayed with paint at night. He claimed that the Department of Religion had made it an offence to hold religious meetings in private homes. In 1984, the applicant claimed he had been injured when he had [been] knocked from his motorcycle as he passed a racial riot. He said the police were there but 'did not do very much'." The Tribunal member considered in some detail independent evidence regarding the discrimination against ethnic Chinese in Indonesia, educational opportunities for Chinese Indonesians, the problem of anti-Chinese violence, the attitude of the Indonesian government towards protecting Chinese citizens, the extent of official corruption, and the protection of religious freedom in Indonesia. The Tribunal referred to information which it considered supported the following conclusions: · Although Chinese Indonesians have been subject to discrimination as a consequence of past government policies aimed at the assimilation of the Chinese into Indonesian society, there has been recent improvement in the treatment of ethnic Chinese by both the Indonesian government and the general community. · Ethnic Chinese are not freely admitted into public universities, although there are no formal quotas limiting the number of ethnic Chinese; there are opportunities for Chinese to pursue private tertiary education. · Anti-Chinese violence in Indonesia, such as rioting and shop looting, has been, and continues to be, a recurring problem. However, the Indonesian government does not condone such violence against the Chinese and has sought to implement measures to protect the ethnic Chinese from communal violence. · Bribery of officials is endemic in Indonesian society, and the ethnic Chinese, as a group considered to be wealthy by Indonesian standards, often are expected to pay more than indigenous Indonesians. · Although more than 85 per cent of the Indonesian population profess the Muslim faith, the practice of other recognised religions is constitutionally protected and generally respected. · In the wake of the country's financial and political crises (the Tribunal's decision was handed down prior to the removal of the Soeharto government) there are some concerns about the increased risk of ethnic Chinese being targeted as responsible for the country's economic problems. The Tribunal made the following findings in respect of the applicant's claims in light of that independent evidence: "The applicant claimed that he had found it difficult to find a job because he was ethnic Chinese. He had been assaulted in 1984. His father had been unable to find a job. He made general claims concerning racial discrimination towards ethnic Chinese in Indonesia and said he feared to return. Whilst not wishing to minimise the problems encountered by the Chinese community in Indonesia, the evidence before me does not demonstrate a course of systematic conduct against the Chinese community, as distinct from an existence of ethnic tensions, where, over time, intermittent incidents have occurred in which members of the Chinese community have been mistreated or had their property damaged. Such incidents of violence cannot be seen as part of the systematic course of conduct directed at persons of Chinese ethnicity. Such violence is different in nature to the general pattern of discrimination against persons of Chinese ethnicity which exists in Indonesia. I accept the independent evidence before me that there is widespread discrimination towards people of Chinese descent in Indonesia. I find that there is discrimination in relation to certain aspects of employment opportunities, education and religion, directed at those of Chinese ethnicity in Indonesia.. I accept that incidents of racial tension, violence and harassment have occurred in Indonesia. I accept that the applicant was injured when he became caught up in a street riot in 1984. However, the term persecution contemplates some serious punishment or penalty or some significant detriment or disadvantage. I find that, whilst unfortunate, the 1984 incident does not amount to a course of systematic conduct aimed at persecuting the applicant for a Convention reason. There were no subsequent incidents. … The applicant did not claim, nor does his evidence suggest, that he had been excluded from education. He lived at the same home and was able to go to school for 12 years without incident. He did not raise any claims of racial harassment in his neighbourhood, at school or when going to his Buddhist temple. I do not accept his claim that he faced restrictions on gaining employment owing to his ethnicity. He found employment as a courier between 1986, whilst still at school, up until the time he left Jakarta in 1995. [The Tribunal referred to the decision of Wilcox J in Periannan v Minister for Immigration and Ethnic Affairs (28 July 1998), McHugh J in Chan v MIEA (1989) 169 CLR 379 and my decision in Lal v MIEA (1996) 42 ALD 535] Clearly, no State can ensure the complete safety of all of its citizens against all forms of harm, mistreatment or even death. But the independent evidence, cited above, indicates that the Indonesia government does not tolerate racial disharmony. It cannot be said that the Indonesian authorities have failed to protect members of the ethnic Chinese community and their property. The Indonesian authorities have acted to restore order in situations of civil disturbance and have taken action against those who have committed criminal offences. … The applicant claimed through his legal adviser that he had suffered from religious persecution. The independent evidence indicates that religious tensions do exist in Indonesia. However, it is equally clear that the Indonesian Constitution provides for religious freedom and that, amongst others, the Buddhist religion is respected… the evidence does not suggest that he was denied the right to practice his religion or that he suffered serious restrictions in the practice of his religion. He was able to attend the same temple three times per week from 1968 up until the time he left Indonesia in early 1995, without hindrance or harassment…. … I accept the independent evidence that there is discrimination towards people of Chinese descent in Indonesia, especially during communal disturbances. However, the independent evidence does not suggest that people of Chinese ethnicity are excluded from education or employment, or that they face serious impediment or restrictions to their livelihood. Nor does it demonstrate a course of systematic conduct against the Chinese community. There have been outbreaks of ethnic tension, with sporadic incidents in which members of the Chinese community have been mistreated and/or had their property damaged. Such incidents of violence cannot be seen as part of a systematic course of conduct directed a persons of Chinese ethnicity in Indonesia."
"Systematic Persecution" At the hearing I expressed some concern regarding the Tribunal's emphasis on the need for discrimination against the ethnic Chinese to be "systematic" in order to constitute persecution for the purpose of the Convention. However, on reflection, I do not find that the Tribunal made an error in this respect. It is clear that evidence of systematic discrimination aimed at either an individual or a group of people may be relevant to determining whether an applicant has a well founded fear of persecution. It is not necessary, however, for an applicant to demonstrate that he or she personally has been subject to systematic discrimination. This was explained in some detail by Hill J in Mohamed v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, 11 May 1998, unreported). It does not appear from its reasons that the Tribunal misunderstood the relevance of "systematic" discriminatory conduct to determining refugee status or misapplied the law. Indeed, the Tribunal was careful to consider the issue with a view to discrimination against the ethnic Chinese community in general, rather than from the view of any particular discrimination suffered by the applicant. The Tribunal's finding was essentially that although the ethnic Chinese in Indonesia are subject to various forms of discrimination, that discrimination is not serious enough to amount to persecution in the Convention sense. Although many may take a different view of the extent of discrimination against the Chinese, that is a matter of factual assessment to be determined by the Tribunal. It is not the Court's role to review the Tribunal's findings simply because the Court might have come to a different conclusion as to the merits of the case: see Wu Shan Liang v Minister for Immigration and Ethnic Affairs (1996) 185 CLR 259 at 272. On the independent evidence before it, it was reasonably open to the Tribunal to conclude that the discrimination faced by the ethnic Chinese did not amount to persecution, and thus there is no reviewable error of law. Protection from harm I also raised concerns at the hearing about the Tribunal's findings regarding the Indonesian government's ability or willingness to prevent discrimination against the ethnic Chinese. Again, on reflection, I see nothing legally objectionable about the Tribunal's conclusions in this respect. The Tribunal member acknowledged that the Indonesian government has not always been able to protect its ethnic Chinese citizens from discrimination. As a matter of common sense, no government could ever protect all of its citizens from all types of discrimination all of the time. There are questions of degree involved. The only relevant question here is whether it was open to the Tribunal to find that the Indonesian government is sufficiently willing and able to protect its Chinese citizens as to enable a finding that Mr Lunardi's fears of persecution are not "well-founded". Although there was some conflicting evidence to indicate that the ethnic Chinese are in a particularly vulnerable position as the economic crisis worsens, it seems to me that it was open to the Tribunal to conclude, on the basis of other evidence before it, that the ethnic Chinese could rely upon State protection, to a degree that compelled rejection of the applicant's claims. For these reasons, the application is dismissed.
I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick
Associate: Dated: 27 August 1998 Applicant in person Counsel for the Respondent: F Backman Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 4 August 1998 Date of Judgment: 27 August 1998
WILSON LUNARDI
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
(1989) 169 CLR 379
(1996) 185 CLR 259