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[2000] FCA 1912
Federal Court of Australia
2000-12-14
Mason CJ, McHugh J, Emmett J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 The applicant is a citizen of Indonesia. She arrived in Australia on 3 October 1998. On 3 November 1998 she lodged an application for protection visa (class AZ) with the Department of Immigration and Multicultural Affairs. On 19 August 1999 a delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister") refused to grant a protection visa. On 12 September 1999 the applicant applied to the Refugee Review Tribunal ("the Tribunal") for review of that decision. On 15 May 2000 the Tribunal affirmed the decision not to grant a protection visa. The applicant now seeks an order of review by this Court in respect of the decision of the Tribunal.
THE TRIBUNAL'S FINDINGS 2 It is necessary to say something about the findings made by the Tribunal and its reasons for the decision that it reached. The applicant is a young ethnic Chinese from Jakarta and she is a Christian. Her parents and two siblings continue to live in Indonesia. She finished her high school studies in 1990 and continued her education in secretarial studies in Jakarta in 1994. She then worked as a secretary from 1994 until her departure for Australia in October 1998. She claims that as a Chinese she is afraid to live in Indonesia. 3 She says that most of her neighbours in her residential area were ethnic Indonesians and claims that most of them were unemployed and that they often asked her for money whenever she went to work or went home from work. She asserted that they would threaten her if she did not give what they asked. She also claimed that after the May 1998 riots their behaviour was intolerable. She referred to the fact that during the May riots many Chinese women had been brutally gang raped. Unemployed ethnic Indonesians became more aggressive and they sometimes touched her. She said that they also verbally insulted her. She also said that to move to another place was impossible as she would not have enough money to rent a house, and asserted that to sell her family house was not possible as the situation in her country was bad and nobody was willing to buy the house at a reasonable price. 4 She claims that the situation in Indonesia has not improved since President Habibie took office. She asserts that the people are now not obeying the law and that the strong will win and the weak will lose, and claims that it is mostly the Chinese who lose. She also asserts that there is no protection from the Indonesian government and that, in fact, it is the government who has been making the Chinese scapegoats. She therefore questions whether the Indonesian government could protect Chinese at the same time they make them scapegoats. 5 The Tribunal accepted that in daily life the applicant, like most Chinese Indonesians, is the target of occasional verbal harassment by ethnic Indonesians. However, the Tribunal found that the occasional verbal harassment described by the applicant, although it may be disturbing and upsetting, is not sufficiently dire to bring it within the ambit of persecution as described by Mason CJ in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. Not every threat of harm or interference with a person's rights for a Convention reason constitutes being persecuted. Mason CJ referred to persecution as requiring some serious punishment or penalty or some significant detriment or disadvantage. McHugh J said in the same case that the notion of persecution involves selective harassment and that in appropriate cases it may include single acts of oppression, serious violations of human rights and measures in disregard of human dignity. Persecution may be directed against a person as an individual or as a member of a group. However, the persecution must have an official quality in the sense that it is official or officially tolerated or uncontrollable by the authorities of the country of nationality. Persecution implies an element of motivation on the part of those who persecuted the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors. 6 The Tribunal found that, on the basis of those principles, the harassment described by the applicant was not sufficient to constitute persecution. The Tribunal accepted that ethnic Chinese, such as the applicant, often face extortion in the street by impoverished indigenous Indonesians. However, extortionists are not implementing a policy, they are simply extracting money from a suitable victim. Their forays are "disinterestedly individual" - see Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 569 per Burchett J. 7 The Tribunal acknowledged that extortion may under certain circumstances constitute persecution for a Convention reason. However the Tribunal found that the occasional incidents described by the applicant, of being asked for money by the poor, or with menaces by street hoodlums, while disturbing and upsetting, do not, because of their isolated occurrence, constitute harm of such severity as to constitute persecution. The Tribunal found further that the motivation of the perpetrators was one of perception of wealth, rather than ethnicity. 8 The Tribunal accepted that the anti-Chinese riots in May 1998, in Jakarta and elsewhere, would have caused the applicant to have a very strong fear of harm as a Chinese Indonesian. The Tribunal considered, however, that the crucial issues were whether what the applicant fears is persecution, and if it is, whether it is for a Convention reason and, if so, whether the applicant's fear is well-founded. 9 The Tribunal accepted that recent ethnic unrest and riots in Indonesia, and in particular the events of 1998, involve the threat of serious harm. The Tribunal accepted that Chinese caught up in Indonesia's sporadic rioting can face death, significant personal injury or significant detriment. The Tribunal accepted that this in fact occurred in the context of the May 1998 riots. Further, the Tribunal was prepared to accept the applicant's claim that she was quite understandably frightened by those events, and that she felt that the actions of her neighbours in announcing that they were Muslim meant that she felt that her house might in the future become the target for rioters. 10 The Tribunal found that harm amounting to persecution was involved in the riots. The Tribunal accepted that it is in the nature of racism that dreadful acts can be perpetrated at times of heightened emotions and that much rioting in Indonesia was fuelled by racist hatred. The Tribunal therefore found that it was understandable that such a situation was a cause for apprehension for all Indonesians of Chinese descent, including the applicant. 11 The Tribunal, however, queried whether such fear was well-founded, in the sense that there was a real chance rather than merely a remote chance of such harm occurring. The Tribunal found that the recent occurrence of riots in Indonesia appeared to be random and sporadic in nature. It found that Indonesia is a vast country of some 200 million people, with approximately 5 million Chinese Indonesians living in over 4000 cities and towns. The relative numbers of Chinese Indonesians thus far actually physically harmed or whose property has been destroyed, remains extremely small. The Tribunal referred to independent evidence that reported virtually no anti-Chinese rioting since late 1998. The evidence indicated that the ascension of President Wahid's government had led to an expectation of a much more inclusive approach to government, which would lessen further the incidence of ethnic rioting. 12 The Tribunal found that the overwhelming majority of Indonesians of Chinese descent continued to work and live as they always have, albeit with some degree of apprehension. They faced the same uncertainties arising from the political and economic crisis of contemporary Indonesia that also confront non Chinese Indonesians as Indonesia attempts to deal with its continuing crisis. The Tribunal found that the chance of the applicant being harmed in a riot in the reasonably foreseeable future to be remote. 13 The Tribunal considered that independent evidence indicated that the Indonesian government has intervened to halt such violence as has occurred in recent years, and has prosecuted perpetrators. The Tribunal did not consider that the Indonesian authorities could be said to have tolerated ethnic violence, or had failed totally to protect members of the ethnic Chinese community in such incidents. It accepted that individuals and property have been harmed, and that that can indeed often occur, since the Indonesian military and police response can only occur after some damage has been done. The Tribunal referred to the proposition that no state can ensure the complete safety of all its citizens against all forms of harm, mistreatment or even death, citing Thiyagarajah v Minister for Immigration and Multicultural Affairs (1997) 73 FCR 176 at 179. The Tribunal found, however, that the independent evidence indicated that the Indonesian authorities in fact act promptly to restore order in situations of civil disturbance and act against those who had committed criminal offences. 14 The Tribunal found that the events of May 1998 in Jakarta were particularly wide spread and brutal, resulting in harm to many Chinese Indonesian individuals whose property was sometimes destroyed before the authorities restored order. There was some speculation that those riots were organised or instigated by one faction of the military, in particular by Lt General Prabowo Subianto, in order to discredit his rival, General Wiranto. However, the Tribunal found that General Prabowo was subsequently dismissed from the army, indicating that his actions did not have the support of the central army command nor the new Habibie government. The Tribunal referred to news reports that indicated that the government continues to take strong action to quell any civil disturbances. 15 The Tribunal found that while the situation in Indonesia remains to a degree unsettled, there have been signs of a lessening in civil unrest and a preparedness of the government to use force to put an end to sectarian conflict. The Tribunal found considerable evidence that the move towards democratisation in Indonesia has been sincere, and that the interests of Indonesia's Chinese citizens are being actively addressed by the government of President Wahid, and that any developments in Indonesia beyond the foreseeable future must remain in the realm of pure speculation. 16 The Tribunal found that the socio-political situation in Indonesia is not deteriorating and that, for the reasonably foreseeable future, the Indonesian authorities provide adequate protection to Chinese Indonesians in situations of civil disturbance. In the light of the Tribunal's finding that the chance of the applicant being caught up in ethnic rioting is remote, and that should that occur state protection would be available, the Tribunal found that the applicant's fear of persecution is not well-founded.
THE APPLICANT'S CONTENTIONS 17 In her application, the ground of review relied upon by the applicant was that in s 476(1)(e) of the Migration Act 1958 (Cth). Section 476(1)(e) provides that application may be made to the Court for review of a decision of the Tribunal on, inter alia, the following ground: "(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision." The particulars set out in the amended application are as follows: "(a) The Tribunal failed to apply the definition of 'refugee' under the Convention. The Tribunal has made an error of law in its interpretation of the definition of refugee, especially an event in May Riots in 1998 when Chinese houses and shops had been targeted for looting and burning, without State protection.
(b) In the alternative, misapplied the definition of 'persecution' when the Tribunal failed to recognise that the incident which resulted in the 'May Riots' when many Chinese woman had been brutally gang-raped was within the Convention.
(c) The Tribunal did not consider the possibility of there being multiple effective causes to the harm feared. Especially, when 'no body would buy her parents house for a reasonable price'.
(d) The Tribunal failed to consider whether increased vulnerability to harm satisfied the requirement of a causal nexus between that harm and a 'Convention reason'. In the situation when 'the strong will win and the weak will lose' and that it is mostly the Chinese who lose.
(e) The Tribunal failed to consider whether any 'different' treatment received by the applicants through the Indonesian Government making of the Chinese 'scapegoats' of the Chines minorities in Indonesia was indicative of persecution for a Convention reason." 18 In written submissions the applicant's contention were developed. Several separate contentions were advanced and I shall deal with each of them separately. First it was said that the Tribunal erred in finding that any harm inflicted upon the applicant as an ethnic Chinese was not sufficiently dire as to bring it within the ambit of persecution. It was said that the Tribunal wrongly assumed that the harm which ethnic Chinese suffered was not sufficiently dire. 19 It is not for the Court to replace the view of the Tribunal as to what amounts to persecution with its own view. Whether conduct amounts to persecution is a question of fact and degree. The Tribunal referred to the propositions of Mason CJ and McHugh J in Chan Yee Kin (above) and correctly applied those principles to the facts. It was a matter for the Tribunal to conclude whether or not the conduct complained of by the applicant was sufficient to constitute persecution. I do not consider that there was any error of law in the conclusion that the conduct complained of was not sufficiently dire as to bring it within the ambit of persecution. 20 Next it was said that the Tribunal failed to recognise that the applicant was targeted for extortion because she was of ethnic Chinese rather than a "rich and famous woman." The finding of fact made by the Tribunal was to the contrary. The Tribunal's finding was that the applicant was not targeted for extortion because she was of Chinese ethnicity but because of a "perception" that she was wealthy. Whether the perception was mistaken or not is not to the point. The finding that the Tribunal made was that the attempts at extortion were motivated by a perception that the applicant was wealthy and not because of her ethnicity. This complaint appears to be directed to a finding of fact. That is not a valid basis for complaint under s 476(1)(e). No attempt has been made to impugn the decision of the Tribunal on the basis of s 476(1)(g), namely, that there was no evidence or other material to justify the making of the decision. I do not suggest, by that observation, that there was any basis for attempting to impugn the decision on that ground. 21 Next it was said that the Tribunal erred by applying a dichotomy: "Was the perpetrator's interest in the extortion personal or Convention related?". It was said that the Tribunal assumed that an affirmative answer to the first would denote a negative answer to the second. In the usual case of extortion the extorting party would be acting for a self-interested reason. The reason why the extorting party has that interest may or may not have a foundation in a Convention reason. The extorted party may have been chosen specifically as the target of extortion for a Convention reason or may have become the subject of extortion because of the known susceptibility of a vulnerable social group to which he or she belongs, that social group being identified by Convention criteria. 22 Or conversely, the person may have been selected simply because of his or her personal capacity to provide the particular advantage sought and for no other reason or purpose. Depending on whether the extortion itself is being practised for a reason that includes a Convention reason, the action in its setting may nonetheless be relevantly persecutory in character. The correct character to be attributed to extorsive conduct practised upon an applicant for refugee status is not to be determined as of course by the application of the simple dichotomy: "Was the persecutor's interest in the extortion personal or was it Convention related?". In a given instance the formation of the extorsive relationship and actions taken within it can quite properly be said to be motivated by personal interest on the perpetrators part but they may also be Convention related. Accordingly, any inquiry concerning causation arising in an extortion case must allow for the possibility that the extorsive activity has this dual character. 23 The Tribunal expressly acknowledged that extortion could be done for a Convention reason but found, on the facts, that that was not why extortion occurred in this case. That was a finding that, in my view, was open to the Tribunal on the evidence. There was no basis for suggesting that the Tribunal did not apprehend that there could be more than one reason. The relevant extortion, in any event, was found not to be sufficiently dire as to constitute persecution. 24 Next, it was contended by the applicant that persecution, as experienced by the applicant, took the form of discriminatory withholding by the Indonesian government, as a state, of protection from the members of the ethnic Chinese, as a particular social group, which it would normally provide to the native Indonesian majority. Persecutory conduct can be Convention based, even though the persecutor as an individual has no discriminatory motive, so long as the state withholds effective protection on a Convention ground. Persecution occurs where a non-state agent persecutes for a non-Convention reason and where, for a Convention reason, state protection is not available - see, for example, Islam v Secretary of State for the Home Department [1999] 2 AC 629 at 654 where Lord Hoffman provides the following example. A Jewish shopkeeper is attacked by a gang organised by an Aryan competitor who smash his shop, beat him up and threaten to do it again if he remains in business. The competitor and his gang are motivated by business rivalry and a desire to settle old personal scores but they would not have done what they did unless they knew that the authorities would allow them to act with impunity and the ground upon which the enjoyed impunity was that the victim was a Jew. Lord Hoffman considered that the shopkeeper in that example is being persecuted on grounds of race. 25 An essential element in the persecution was the failure of the authorities to provide protection. That failure was based upon race. If it be the fact that the Indonesian authorities withheld protection that they were able to afford to ethnic Chinese on the ground of race, that could well constitute persecution, even if the conduct for which protection might be available was in no way motivated by a Convention reason. However, as the Tribunal observed in its reasons, no state can ensure the complete safety of all its citizens against all forms of harm, mistreatment or even death - see Minister for Immigration and Multicultural Affairs v Tas [2000] FCA 1657 at [54]-[55]. In this case, however, the Tribunal found that the Indonesian authorities act promptly to restore order in situations of civil disturbance and act against those who have committed criminal offences. 26 There is simply no finding by the Tribunal that protection of the state is withheld in Indonesia in the case of ethnic Chinese. Rather there is a finding that the state, in fact, does intervene and prosecutes perpetrators of conduct directed against ethnic Chinese. I do not consider that the reasons of the Tribunal exhibit any error of law in this regard. The Tribunal found that the applicant does, in fact, have a subjective fear. It found, in effect, that that fear was based on the experience of ethnic Chinese women in 1998 and before. However, the Tribunal made a finding of fact that the chance of harm befalling the applicant if she returns to Indonesia is remote. I do not consider that there was any error of law involving any misinterpretation of the relevant law or in the application of the relevant law to the facts as found by the Tribunal. 27 While one must have the utmost sympathy for a woman in the position of the applicant, who wants to remain in this country and who does have a fear, I am not persuaded that there has been any error of law on the part of the Tribunal in reaching the decision which it has reached. Accordingly, in my view, the application should be dismissed. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.
Associate: Dated: 20 December 2000 Counsel for the Applicant: Mr I Asuzu Solicitor for the Applicant: Coelho & Coelho Counsel for the Respondent: Mr S Lloyd Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 14 December 2000 Date of Judgment: 14 December 2000
Woen
Minister for Immigration & Multicultural Affairs