NAFN v Minister for Immigration and Multicultural and Indigenous Affairs
[2002] FCA 808
•20 JUNE 2002
FEDERAL COURT OF AUSTRALIA
NAFN v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 808NAFN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N296 OF 2002WILCOX J
20 JUNE 2002
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 296 OF 2002
BETWEEN:
NAFN
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
WILCOX J
DATE OF ORDER:
20 JUNE 2002
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the costs of the respondent.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 296 OF 2002
BETWEEN:
NAFN
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
WILCOX J
DATE:
20 JUNE 2002
PLACE:
SYDNEY
REASONS FOR JUDGMENT
WILCOX J:
This is an application for review of a decision of the Refugee Review Tribunal. The decision was handed down 15 February 2002. It follows that the amendments to Part 8 of the Migration Act 1958, which took effect on October 2001, apply to this decision. It is not necessary, for the purposes of this case, for me to consider what is that effect.
The application for a Protection Visa was lodged by the applicant with the assistance of a migration agent. The applicant notified a residential address at Campsie.
The application for a Protection Visa was considered by a delegate of the Minister and refused. The letter of refusal was dated 15 May 2001. It was sent to the applicant's residential address. The letter enclosed a document, entitled "Protection (Class 10A) Visa Decision Record", in which the delegate set out her reasons for decision. The reasons included extensive reference to “country information” dealing with the position of people of Chinese ethnicity in Indonesia, the applicant's claimed country of origin. She says, and this was accepted, that she is ethnically Chinese and of the Buddhist faith.
The application to the Tribunal for review of the delegate’s decision gave the same residential address and gave an address for service of 3/55 Gould Street, Campsie, 2194. The applicant's adviser was identified as Orchid Sit of that address. The application for review was dated 10 June 2001.
The section of the form headed "Your reasons for making this application" was completed in this way:
“I do not agree with the Department's decision. The officer refused my application based on the good side of the independent country information. He did not mention the bad side of the information. I was not offered an interview for discussion of the application. I believe my application has not been considered thoroughly. I hope it can be re-assessed at RRT. Thank you!”
On 28 November 2001, the Deputy Registrar of the Tribunal sent a letter to the applicant, addressed to her at 3/55 Gould Street, Campsie, 2194, notifying her of a hearing on Thursday, 31 January 2002 at 10 am. The letter opened with the words:
“The Tribunal has looked at all the material relating to your application but it is not prepared to make a favourable decision on this information alone. You are now invited to come to a hearing at the Tribunal to give oral evidence and present arguments in support of your claims. You are also entitled to ask the Tribunal to obtain oral evidence from another person or persons.”
After setting out the details of the hearing, the letter went on:
“Please tell the Tribunal whether or not you want to come to the hearing by completing the enclosed “Response to Hearing Invitation” form and returning it to the Tribunal by Friday, 14 December 2001. This will help the Tribunal plan for your hearing and give us time to book an interpreter if required.”
The enclosed Response to Hearing Invitation form was in due course returned to the Tribunal with a cross placed in the square marked “No” in answer to the question “do you want to come to a hearing?” Under this square appeared the words:
“I consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me to appear before it.”
A signature appears on the document, but it is claimed by the applicant that this is not her signature. She says the agent did not contact her before sending back the form and she did not know the agent proposed to refuse a hearing. This evidence has not been given on oath, although the applicant was prepared to give evidence. But this is the essence of what has been told to me by Mr L. Karp of counsel, who appears for the applicant on a pro bono basis.
For the purposes of consideration of this matter, I am prepared to accept that the facts are as stated by the applicant through Mr Karp. However, they do not seem to take the applicant's argument any distance. This is not a case where it can be said that the Tribunal was at fault. The Tribunal gave notice of the projected hearing date to the applicant, by sending a letter to her nominated address for service. It allowed plenty of time, about two months, for her to prepare for the hearing and it sent an appropriate form, inviting her to indicate whether or not she wished to have an oral hearing.
Unfortunately for her, on this understanding of the facts, her agent declined the invitation. The agent’s version of the matter has not been put before the Court, so I do not know how this came about. However, the invitation was declined by a person acting on behalf of the applicant. The oral hearing did not fall through because of any default by the Tribunal.
The Tribunal member considered the matter in the absence of the applicant. The member had regard to a considerable amount of country information. This included the country information that had been before the Tribunal, but also a number of reports dealing with the situation in Indonesia since the date of the delegate's decision. The Tribunal member seems to have been assiduous in obtaining as much information as possible about the current situation.
The drift of the material, both before the delegate and the Tribunal member, is that there has been, and continues to be, a level of animosity towards ethnic Chinese in Indonesia. This is apparently caused by jealousy arising out of what is seen as their disproportionate wealth. During the riots in 1998 that coincided with the downfall of the Soeharto regime, there was considerable damage to Chinese property and some Chinese were killed. However, the country information indicates there has never been persecution of Chinese Indonesians at the hands of the government of Indonesia. The government has never been unwilling to take action in respect of anti-Chinese riots, although it proved unable to protect the people who were killed and injured in 1998. The more recent information indicates an increasing tolerance towards Chinese people in Indonesia, although there is obviously some distance to go.
Mr Karp’s submission accepts that the Tribunal was not at fault in any way in relation to the circumstance that the member had to determine the application for Protection Visa without a hearing attended by the applicant. However, he puts a natural justice argument. He says the Tribunal was bound to give natural justice to the applicant and that it failed to do this by failing to draw to her attention the country information that it proposed to take into account.
During the course of discussion, I understood Mr Karp to accept that it would not have been necessary for the Tribunal to refer to the country information that had been mentioned by the delegate, because the applicant was already aware of this material. However, he said the letter of invitation should have identified the additional material which the Tribunal was minded to take into account when considering the application for review. Mr Karp had to go that far because there was no hearing, as a result of the way in which the notification form was completed. Consequently there was failure by the Tribunal to carry out an obligation at hearing stage.
The difficulty, as I see it, with Mr Karp's argument is that it would require a standard letter, which is a logistical step undertaken by a deputy registrar, to turn into a document which would have to be settled by the Tribunal member. If the document suggested particular material would definitely be taken into account, there would be room for legitimate concern as to whether the Tribunal had prejudged the case. If there was simply a list of documents which may or may not be taken into account, this difficulty might disappear. However, in the usual course, people accept the invitation for a hearing. Consequently a significant delay may elapse between the date of the invitation letter and the ultimate decision. It is quite possible, and I imagine usual, for further country information to become available during that time. If the invitation letter had set out a list, a question would arise as to whether this impliedly indicated that later material would not be taken into account.
I accept there are cases in which country material indicates a radical change in the relevant country. This might need to be drawn to the attention of an applicant for a visa. An example of this type of case is furnished by the decision of the High Court in Re Minister for Immigration and Multicultural Affairs; ex parte Miah [2001] HCA 22, 75 ALJR 889. However, it seems to go too far to say there is a breach of natural justice if the Tribunal has regard to any material at all, even material which simply tends to confirm material that is already known by the applicant to be before the Tribunal. That was the position in the present case.
I cannot regard the Tribunal's readiness to consider the more up-to-date country information as breaching its obligations to provide natural justice to the applicant. Nor, for the reasons I have indicated, do I think that it was a breach of natural justice for the letter to fail to indicate what material might be considered.
I am indebted to Mr Karp for having put an argument to the Court on behalf of the applicant. His willingness to do so shows a public spirit that is in the best traditions of the Bar. However, I do not think I am able to uphold the argument.
The appropriate order is that the application be dismissed with costs.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox. Associate:
Dated: 20 June 2002
Counsel for the Applicant: Mr L Karp Counsel for the Respondent: Mr G R Kennett Solicitor for the Respondent: Clayton Utz Date of Hearing: 20 June 2002
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