WILSON LUNARDI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Federal Court of Australia|1998-08-27|Before: Toohey J, Madgwick J

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.

"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

Migration Act 1967(Cth)

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