SZAIX v Minister for Immigration
[2004] FMCA 104
•15 March 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAIX v MINISTER FOR IMMIGRATION | [2004] FMCA 104 |
| MIGRATION – Review of RRT decision – where applicant wished her father to give evidence before Tribunal – where father not in Australia at time of hearing – where father subsequently arrived in Australia – where Tribunal accepted statement of father but did not call him as a witness – where statement of father only relevant to credibility of applicant which was not in issue – whether failure to call the father to give evidence constitutes a failure to comply with s.426A(3) – where Tribunal considered whether applicant suffered persecution on basis that she was a Chinese Christian woman in Indonesia – whether real consideration was given to whether the applicant suffered persecution as a member of a particular social group, women in Indonesia – whether applicant denied procedural fairness as a result of not having an opportunity to consider country information relied on by the Tribunal – where gravamen of the information relied on was explained to applicant – where applicant’s request for a female interpreter not acceded to – where applicant alleged Tribunal acted illogically and took account of irrelevant considerations. |
Migration Act 1958 (Cth) s.426
Abebe v The Commonwealth (1999) 197 CLR 510
NAQS v Minister for Immigration [2003] FCA 1137
WAAL of 2002 v MIMIA [2003] FCA 1220
Minister for Immigration v Khawar [2002] HCA 14
Paul v MIMA [2000] FCA 1196
Djuraj v MIMA [2001] FCA 986
NAVM v Minister for Immigration [2004] FCA 99
MIMA; Ex parte Cohen (2001) 75 ALJR 542
MIMA v Rajalingam (1999) 93 FCR 220
MIMA v Epeabaka [1999] FCA 1
NAMM of 2002 v MIMIA [2003] FCAFC 32
MIMA v Yusuf [2001] HCA 30
Dranichnikovv MIMA [2003] HCA 26
| Applicant: | SZAIX |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 532 of 2003 |
| Delivered on: | 15 March 2004 |
| Delivered at: | Sydney |
| Hearing date: | 20 February 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Solicitor for the Applicant: | Yandell Wright Stell |
| Counsel for the Respondent: | Mr G Kennett |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Court declares that the decision of the Refugee Review Tribunal made on 3 February 2003 is void and of no effect.
The court orders that the matter be referred to the Refugee Review Tribunal to be considered and determined in accordance with law.
The respondent to pay the applicant’s costs assessed in the sum of $4500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
Judgment stayed for 7 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 532 of 2003
| SZAIX |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant in this matter is a citizen of Indonesia of Chinese ethnicity and Christian religion. She most recently arrived in Australia on 30 July 2001. On 6 February 2003 she lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 14 February 2003 a delegate of the Minister refused to grant a protection visa and on 20 February 2003 she applied for review of that decision by the Refugee Review Tribunal. The Tribunal arranged a hearing which took place on 19 March 2003 when the applicant was assisted by RACS. The Tribunal determined to affirm the decision of the delegate on 3 April 2003 and provided the applicant with a copy at Villawood IDC on the same day.
The applicant’s claim to have a well founded fear of persecution for a convention reason arose out of certain incidents which the Tribunal accepted occurred to her in or about June/July 2001. On the first occasion the applicant was approached at a shopping centre by a Moslem man who took her away from there and raped her. It is the applicant’s claim that he told her to be quiet about he incident and threatened her with the fact that he was a policeman, although he was not wearing a uniform at the time. During the course of the Tribunal hearing the Tribunal asked the applicant whether she had any further contact with the assailant. At first she said she had not, then:
“She responded that she had moved to stay with relatives and felt safe but then he had stalked her and found her with two of his friends and had said that she had reported him to the Police. That happened a week after the assault. I reminded her that she had already told me that she had no further contact with him after the assault. She said that she thought I had asked her if she had seen him after she came to Australia and so she said she had not. I asked her for details of her second contact with him. She responded that he had threatened her a week later. He had telephoned her and said that she must not make another report because he would come around “with those four friends”. He had raped her again. He did not tell her why but he probably was punishing her for telling the Police. After that she had no further contact with him.” [CB 100]
In regard to these two incidents in its findings and reasons the Tribunal said:
“As to the applicant’s claim to have been sexually assaulted on two occasions in 2001, despite her long delay in lodging an application for a protection visa after her arrival in Australia, I accept that this occurred on the first occasion described by her. She gave an account of that incident which was reasonably clear and compelling. I also accept, given the understandable fear created among Chinese women in Indonesia during the 1998 riots about this particular form of assault, that she may assume that in her case the assault was motivated by her race or religion.
However I must express some doubt that a second assault occurred, firstly because I am satisfied that she clearly stated at the hearing that she had no further contact with the man after the first incident and secondly because she referred to two, and then four, men being involved. In other words, her evidence about the second assault was vaguer than the first. However, I propose to give her the benefit of the doubt and accept that she may have been assaulted on the second occasion.”
The Tribunal accepted that rape was of a severity that amounted to persecution and noted that in Abebe v The Commonwealth (1999) 197 CLR 510 at [296] Callinan J observed that it would undoubtedly be persecution if connected to a convention reason. When looking at this question the Tribunal made the following comments also in its findings and reasons:
“I note that Ms Ryan submitted an article from the Jakarta Post (3 January 2003) which reported that an incident of rape took place in Indonesia every five hours on average. However that report did not mention that victims were singled out because of their race or religion, and indeed a female spokesperson of an NGO dealing with this problem said that sexual violence took place “anywhere” and “involve[d] anyone regardless of walk of life, education or age”. I accept that sexual assault is a serious and widespread problem in Indonesia today, and that some Chinese women were singled out for rape because of their race during the 1998 riots, but infer from this report that rapists in Indonesia now tend to attack women they see as suitable victims, for disinterestedly criminal reasons, and that race, religion or membership of a particular social group is not the “essential or significant” motivation for the assaults. Consistent with this independent evidence is the applicant’s oral evidence, which was that her assailant made no reference to her race or religion during his contact with her, either when assaulting her or when threatening to harm her if she reported the incident/s to the Police. Thus it could be no more than speculation on her part that her race or religion formed any part of the reason for the sexual assault or assaults. I am not satisfied that it was.
As to the claimed failure of the police to act on the complaint lodged by the applicant’s father … there is no claim that they made any reference to the race or religion of the victim or her father as a reason for failing to act and I cannot be satisfied that the essential or significant reason for that failure was the applicant’s race or religion or any other Convention reason.
… Fear of revenge does not come within the scope of the Convention unless it can be shown that the retaliation is linked with a racial, religious or other Convention reason. On the basis of the evidence set out above, I am not satisfied that the required nexus exists. I find that any revenge would be for criminal, and not Convention related, reasons.”
The Tribunal also indicated that it was not satisfied that the applicant’s assailant was a police officer and therefore that he had access to police records through which he might locate her in the future. The Tribunal found the chance remote that the assailant might harm her again.
Mr Turner, who appeared on behalf of the applicant, provided the court with some helpful written submissions. He also filed an Amended Application and tendered a transcript of the proceedings. The hearing was conducted on the basis that there were essentially three issues which individually or together contributed to the Tribunal having fallen into jurisdictional error in its consideration of the applicant’s case. The three issues were:
i)The failure to provide the applicant’s father with an opportunity to be heard;
ii)The failure to consider whether or not the applicant was a member of the particular social group of women in Indonesia and whether or not the persecution arose out of her membership of that group;
iii)The failure of the Tribunal to provide the applicant with procedural fairness by not putting to her in sufficient detail the country information upon which the Tribunal intended to rely as a reason for its decision.
I will deal with each of the issues in turn.
The applicant’s father
There was a certain amount of confusion about the situation of the applicant’s father at the hearing before me. I believe I have now clarified it in these reasons but in the event that my history of the events should be considered incorrect I will allow the parties seven days from the time of my handing down this decision to request that I re-open the matter on this issue only. My decision will be stayed for that period of time.
The applicant reported to the delegate that her father had reported the first rape incident to the police and that the police “took no action”. She gave similar evidence to the Tribunal. At the hearing Ms Ryan from RACS discussed the possibility of the father giving evidence at [T19]:
“Ms Ryan: I understand that her father, who reported the incident to the police, is attempting to come to Australia. He is suffering some health problems but as far as I’m aware that he maybe coming next week, and to prove – if he can provide further information (inaudible) will provide what information was provided to the police.
The Tribunal: Q. When is your father arriving?
A. Don’t know yet. He’s ill. My father is ill and has high blood pressure.
Q. Yes, he is welcome to maybe just put something in writing about whatever – whatever you want him to say, but what would be most relevant I guess is what happened at the police. But I really have to make clear that even if there wasn’t police protection in the past or the police didn’t act as determinedly as they should have, because they were being racist, I still have some problems with whether there is a well founded fear now, and so I don’t know that what happened in the police station would take us very far anyway because this – the assailant seems to have. I mean we don’t know where he is, even whether he is still alive. We don’t know anything about him. He might be in prison for some other crime. I just absolutely can only speculate about him.
Ms Ryan: Right
The Tribunal: How much time would you like?
Ms Ryan: I would like two weeks if that’s okay simply because I know given dealing with someone overseas is going to be (inaudible) translating.
The Tribunal: What documents are you expecting?
Ms Ryan: A statement from the father if he doesn’t arrive in Australia within those two weeks.
The Tribunal: I don’t want to set you off on a wild good chase if, no matter what he could say, it’s not going to really help me with the well foundedness of the fear in relation to the future. Perhaps you can just consider that when you’re communicating with him or with your client, whether it’s actually worth getting him to go to a lot of trouble to get a document translated and so on.
Ms Ryan: Certainly we will (inaudible) with a document.
The Tribunal: So two weeks. That means that the date is going to be – close of business Wednesday fortnight. I haven’t got a calendar here.
Ms Ryan: That’s fine.
The Tribunal: We can all work it out after.
The Interpreter: What?
The Tribunal: For you to provide any more information that you want to the Tribunal, any written information.”
After the hearing closed RACS submitted a submission dated 3 April 2003 which included a “statement regarding the evidence that can be provided by the applicant’s father”. This is a short statement made with the assistance of an interpreter via the telephone and is set out below:
“I am a citizen of Indonesia. I am of Chinese ethnicity.
I am the father of the applicant.
I arrived in Australia on 21 March 2003. I will return to Indonesia on 15 April 2003.
I would like to provide a statement regarding the attack of my daughter in Indonesia.
Almost two years ago my daughter arrived home and was visibly upset. She was crying. She told us that she was shopping when a man approached her, forced her to go to a particular area and raped her.
The evening of the attack I went to the police station. I reported the incident to the police in Cengkareng. When I was in the police station I felt that I was treated differently than indigenous Indonesians because I was ethnic Chinese. I cannot give a specific example of how my treatment was different but it is a general cultural norm in Indonesia that we ethnic Chinese are discriminated against.
I explained to the police what my daughter had told me, that she was attached and raped by a man.
The police told me that they would not be able to do much about the case.
Our whole family feels very threatened by these events.
I can provide evidence and further details to the Tribunal about following matters.
I will need a Bahasa Indonesian interpreter to provide evidence to the Tribunal.
I can be contacted on …” [CB 76]
In the letter accompanying this statement RACS write:
“We also provide a document regarding the evidence the applicant’s father could provide to the Tribunal if required.” [CB 67]
It would appear from the statement that at the time it was made the applicant’s father was in the country so that it would have been open to the Tribunal to call upon him to come and give evidence to it if the Tribunal had wished. The Tribunal dealt with this offer at [CB 101]:
“Mr K was willing to give further details to the Tribunal. However, as I have made no adverse findings as to the applicant’s credibility (see below) and as her evidence, and her father’s written evidence, was clear on the points on which I have had to make findings, I have not taken up his offer.”
“The applicant had requested that her father give evidence by reference to him in her response to hearing invitation.” [CB 57]
The right of an applicant to request the Tribunal to call witnesses is contained in s 426 of the Migration Act 1958 (Cth):
426 (1) In the notice under section 425A, the Tribunal must notify the applicant:
(a)that he or she is invited to appear before the Tribunal to give evidence; and
(b) of the effect of subsection (2) of this section.
(2) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.
(3) If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice.”
The respondent argues that the obligations placed upon the Tribunal under s.426(3) are obligations which only exist when the potential witness is in the country. As at the date of the hearing the applicant’s father was not in the country. The applicant does not accept this and suggests that the Tribunal’s obligations (if they be such) extend to obtaining evidence from the proposed witness by way of telephone or videolink. Hill J considered the interpretation of s.426 in NAQS v Minister for Immigration [2003] FCA 1137. At [27] et seq he said:
[27] “Section 426 is open to two possible interpretations. The first is that s.426(2) is designed to ensure that only the Tribunal itself can call witnesses to give evidence and that the Tribunal can decide contrary to the wishes of the applicant what witnesses it will call. On this view the Tribunal has an absolute discretion whether to do so. The other view is that s.426(2) is concerned only with the power of the Tribunal to summon witnesses and is silent on the question of the right of an applicant to call relevant evidence to enable the Tribunal to carry out its duty to review a decision of the Minister. I prefer the latter construction in the absence of clear language to the contrary. It would require express and unambiguous language before Parliament it is to be taken to have excluded the right of an applicant to put evidence in the form of oral testimony of relevant facts before a decision maker (the Tribunal) charged ultimately with the making of a decision of such importance as the Tribunal is charged to make as a result of a review.
[28] Section 426(3) provides that the Tribunal `is not required to obtain evidence from a person named in the applicant's notice'. If Parliament had intended that the Tribunal was not required at all to take evidence from a person named in the applicant's notice it would have been easy for Parliament to have expressed itself in that way. The word `obtain' suggests to my mind that s.426(3) relieves the Tribunal from an obligation itself to seek out a witness for the purpose of that witness giving evidence but is silent concerning the obligation of a Tribunal to listen to evidence which an applicant wishes the Tribunal to hear whether evidence is relevant in the proceedings.
[29] In my view, it is implied in Division 4 of Part 7 of the Act and indeed from the very obligation imposed on the Tribunal to entertain a `review' that an applicant is entitled to require the Tribunal to have regard to oral evidence of a witness called by the applicant, although only if that evidence is relevant to the issues before the Tribunal. In the present case, evidence from witnesses as to the applicant's practice of Falun Gong in Australia and nothing else would be irrelevant because it would cast no light on whether the applicant was a person who had a well founded fear of persecution within the meaning of the Convention if returned to China once the Tribunal accepted that the applicant was a practitioner of Falun Gong. The Tribunal could thus properly refuse to hear that evidence.”
Hill J was silent about the situation of a witness who is not in the country. I would be reluctant to extend any obligation placed upon the Tribunal to call a witness nominated by the applicant, whose testimony could be relevant, to people who are not within the jurisdiction unless the applicant could make such persons available. But I do not think it is necessary to decide that matter now because of what occurred between the Tribunal and the applicant’s adviser as set out in the transcript at [6] above. The applicant and her advisers took advantage of the proposal put by the Tribunal and presented the statement. By the time the statement was presented the father was in Australia. The father offered to provide further details to the Tribunal but the Tribunal did not call him. There is no specific request in the letter accompanying the statement written by the advisers that the Tribunal does call the father. The reaction of the Tribunal to this statement is set out at [CB 101]:
“A number of reports about the situation in Indonesia were submitted, as was a statement from the applicant’s father in which he confirmed that she had been subject to “an attack” during which she had been raped, that he had reported the incident to the police (although he said he had done so that evening, rather than the following day), that he had “felt” that he was treated differently because of his race although he could not give a “specific example” of this. He said that the police had told him that they “would not be able to do much about the case”. Mr K was willing to give further details to the Tribunal. However, as I have made no adverse findings as to the applicant’s credibility (see below) and as her evidence, and her father’s written evidence, was clear on the points on which I have had to make findings, I have not taken up his offer.”
Although the applicant does not bear an onus of proof it is up to her to make her claim and to satisfy the Tribunal of it. As expressed by Gaudron J in Abebe v The Commonwealth of Australia [1999] HCA 14 at [187]:
“The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.”
If she proposed to utilise her father’s evidence to support the claim that the police failed to follow up the complaint and therefore to provide the applicant with adequate protection because of the applicant’s ethnicity then he would have to go further than he has done in the statement. The Tribunal would not be bound to call him in order to extract from him evidence more favourable to his daughter than that which he had previously given. That is the applicant’s responsibility and she would have fulfilled it by placing the details in the statement. I am satisfied that the action of the Tribunal did not amount to a refusal to hear evidence from an available witness who had relevant information. See WAAL of 2002 v MIMIA [2003] FCA 1220 at [30] where RD Nicholson J doubted whether there was a duty on the Tribunal to question witnesses so that failing such questioning there could be said to be a breach of procedural fairness.
Although I am not satisfied that the failure of the Tribunal to call the father to give evidence constitutes a failure to comply with s 426A(3) or to provide the applicant with procedural fairness there are some aspects of the Tribunal’s thinking about the relevance of the father’s evidence that could be said to bear relevantly on the alleged failure to consider the applicant as a member of a particular social group.
The membership of a social group issue
The applicant is an ethnic Chinese woman of Indonesian nationality. She claims that the person who sexually molested her was a Moslem. There appears from a reading of the Court Book to have hung over the proceedings both before the delegate and the Tribunal an unspoken assumption that the Convention nexus between what occurred to her and her claim for asylum was that what occurred did so by reason of her ethnicity. There does not appear to be a copy of any original statement made by the applicant contained in the Court Book. But the delegate says at [CB 34]:
“The applicant’s claims are vague and uncorroborated despite having the assistance of a registered migration agent in the preparation of her claim. The applicant has not provided any details whatsoever of the alleged attacks, nor when they occurred, and where and when they were reported. The applicant makes no claims to being persecuted for a Convention reason.”
And again on the same page:
“Regardless of the credibility of the applicant’s claims, the applicant does not claim to have been persecuted for a Convention reason. The applicant’s claims relate to her being sexually assaulted by an unnamed man. There is no evidence that these alleged assaults occurred for a Convention reason. As there is no link between the claimed feared harm and any of the five Convention reasons, Convention protection is not available to the applicant.”
At [CB 36] her then solicitors wrote to the Tribunal:
“For the moment, it is sufficient to note where the applicant has made claims relating to her ethnicity. … The applicant instructs that she is recognisably Chinese in Indonesia. In Indonesia, she was sexually assaulted by a Moslem and she believes that her ethnicity was a factor in the assault. Her father and brother attempted to obtain action from the police in relation to the assault but the applicant instructs that all police in Indonesia are Moslem and because of their ethnicity nothing” [here the letter ends].
At [CB 39] in her application to the Tribunal the applicant says:
“The decision maker did not understand that my Chinese ethnicity was a factor in the rape or that the police would not do anything about it because all the police are Moslem and I am Chinese.”
When the matter came before the Tribunal it was discussed largely in this context. At [T11] the Tribunal says:
“Now you remember at the beginning of the hearing I told you that even if a person has a well founded fear of being persecuted, the Convention doesn’t protect them if the persecution is for some reason other than their race or religion and so on. In other words, from what you told me my impression is that this man was a criminal who attacked you and if he attacked you again or harmed you again it would be because he wanted to punish you for going to the police.”
At [T16] there is the following exchange.:
Q.Did you or your parents even contact the police to see if they had investigated?
A.My parents already - my parents always asked the police how are things going with that but the police didn’t seem to care because for me I’m of Chinese descent and Christian. The police are Moslems and so it’s like they don’t care. They just don’t pay any attention to it.”
Further down that page of the transcript there is further reference to problems in Indonesia between Christians and Moslems and between Chinese and Moslems and the Tribunal tells the applicant that it wishes to discuss with her evidence from independent sources about the general situation for Chinese and Christians in Jakarta.
At [T17] the adviser asks the Tribunal to question her about the fact that the man who assaulted her was a Moslem. At [T18] the adviser asked the Tribunal to ask whether during the attack any religious or racial slurs were made and then further down that page the following:
The Tribunal: “Ms Ryan I think that the issue for me is going to be that there is no – I can’t really see any Convention reason; that is I can’t see that the initial crime occurred because of your client’s race or religion. I think that was incidental from the story that I have heard and I also wondering about how well founded the fear is anyway of harm from the man in future.”
The adviser responds indicating that she has not had an opportunity to consider whether recent world events would change relationships between Moslems and Christians and then the Tribunal at [T19] says:
The Tribunal: “I really just want to point out though that I’m not disregarding the fact that both Chinese and Christians have been attacked because of their race or religion in Indonesia but I have to look at these particular circumstances and those factors seem to be fairly peripheral in this case. I think he was looking for a victim. He wasn’t terribly concerned about race or religion because he didn’t say anything to her about either of those matters.”
It is only after the adviser has taken advantage of the Tribunal’s offer to make a written submission that the Tribunal’s attention is drawn to the fact that another possible social group to which the applicant could belong is “Women in Indonesia”. This is found at [CB 68] and again, in more detail, at [CB 69] where she discusses the claim in the context of the High Court decision in Minister for Immigration v Khawar [2002] HCA 14. There is then found at [CB 71] information concerning the rape of women [generally] in Indonesia.
The Tribunal’s reasons for decision contains a number of references to race or religion. At [CB 107]:
“However, on the basis of that evidence I am satisfied that violence has subsided and that in Jakarta women of Chinese background, whether Christian or not, do not now face a real chance of harm amounting to persecution for reason of their race or religion.”
Again on the same page:
“I also accept, given the understandable fear created among Chinese women in Indonesia during the 1998 riots about this particular form of assault, that she may assume that in her case the assault was motivated by her race or religion.”
And finally on the same page:
“I note that Ms Ryan submitted an article from the Jakarta Post (3 January 2003) which reported that an incident of rape took place in Indonesia every five hours on average. However that report did not mention that victims were singled out because of their race or religion.”
At [CB 108]:
“Consistent with this independent evidence is the applicant’s oral evidence, which was that her assailant made no reference to her race or religion… thus it can be no more than speculation on her part that her race or religion formed any part of the reason for the sexual assault or assaults. I am not satisfied that it was.”
In the next paragraph the Tribunal comments upon the failure of the police in terms which I have already extracted. It is here that there is a reference to any other Convention reason but it is clear that the main thrust of the Tribunal’s reasoning was predicated on the claim of persecution for race or religion.
The respondent argues that the Tribunal did consider the applicant’s claims against her membership of the particular social group of women in Indonesia when it expressed views that the rapists acted for disinterestedly criminal reasons unmotivated by any Convention reason [CB 108]. The respondent argues that the Tribunal has found that rapists are not wishing to harm women per se and committing sexual assault in order to do that, they are just intent upon committing the criminal act of sexual assault. They do not look upon the sexual assault as a way of persecuting women.
Although I can see the force of this argument I am not at all sure that it is one that can be made from the remarks of the Tribunal “to any other Convention reason” which I feel was not much more than a “catch all”. It does not seem to me to indicate that the Tribunal gave any real consideration to the possibility that women in Indonesia could form a particular social group as suggested of the women in Pakistan by the Chief Justice in Khawar. In Paul v MIMA [2000] FCA 1196 the applicant’s claim that she had a well-founded fear on persecution was based on a number of grounds. It was alleged that the Tribunal failed to take into account relevant considerations relating to one of the grounds advanced and consequently did not address the applicant’s claim in its totality. Paul differed from the present situation in that the Tribunal did give reasons, albeit brief ones, for the different elements of the claim. Allsop J, with whom Heerey J agreed, did hypothesise on what the outcome would be if this was not the case:
“It may be that if the element of the appellant’s claim for asylum based on her Tamil ethnicity was not addressed at all, that is if the Tribunal had only directed its attention to her claim based on her association with her husband, then in those circumstances relevant considerations might not have been addressed because an element or integer of the claim put forward by her would not have been dealt with. In such circumstances it may be that, in a jurisdictional sense, a relevant consideration had not been addressed. However, it is unnecessary for me to decide this given that the Tribunal did address the elements or integers of her claim.”
When considering the sufficiency of the Tribunal’s approach, the comment of Drummond J in Djuraj v MIMA [2001] FCA 986 at [40] should be born in mind:
“As Yusuf shows, where the decision maker is, like the RRT, bound by statute to set out the findings which it regards as critical to its ultimate decision and to give reasons for arriving at that decision, whether such an error of law has occurred in a particular case will commonly depend for its exposure on what emerges from an examination of the reasons given by the decision maker and of the information before it.”
In this case the Tribunal’s attention was clearly directed by the letter of the migration agent to the existence of the claim that the applicant belonged to such a social group. The migration agent provided evidence of a horrendous rate of sexual assault upon women within Indonesia and the apparent failure to prevent it and I think this required more in the way of consideration than was given.
The country information issue
As can be seen from the Court Book the Tribunal relied on quite a quantity of country information concerning the situation in Indonesia particularly the situation as it involved ethnic Chinese. It made reference to the existence of that material in the transcript. At [T4] the following:
[T4] “I can consider evidence from any source that I think might be reliable in order to arrive at my decision. That evidence I am talking about might be things like reports from the Human Rights organisations, reports that have come from Australian, the Australian embassy in Jakarta, newspaper reports, that sort of thing. So I might want to discuss some of that kind of evidence with you during the hearing. But I won’t need to do that unless - I think that evidence might suggest that you’re not a refugee and I want to give you a chance to hear what that information is and comment on it.”
At [T16]:
“[T16] “I just want to discuss with you some evidence from independent sources, other sources, as I mentioned at the beginning of the hearing about the general situation for Chinese and Christians in Jakarta. Now in 1998 there was a terrible outbreak of violence which affected Chinese and Christians in particular
A.Yes.
Q.But since then the evidence is that violence has very significantly subsided. There haven’t been any riots in which Chinese have been the targets, in recent years. It’s true that some churches have been bombed but individual Chinese have not been targeted because they are Chinese, and police and security forces, particularly the police, have really tried to bring these tensions between Christians and Moslems under control where they have broken out in most other parts of the country. So, it seems to me that if you had been able to give enough information to the police about the identify of this man that they would have taken appropriate steps to go and arrest him.
A.Yes.
Q.Do you want to say anything else about the information I’ve just given to you. Most of that has come from the Australian Embassy in Jakarta.
A.He don’t want to. I’m afraid, I’m, afraid that something would happen to my kids later on.”
The applicant argues that the Tribunal did not identify the material or provide the applicant with an opportunity to comment upon it prior to the hearing that had she been aware of the material utilised by the Tribunal and given a real opportunity to consider it prior to the hearing she could have drawn the Tribunal’s attention to a number of passages which would have been of assistance to her.
It must also be noted that, to the extent that the Tribunal relied on a press article concerning the incidents of sexual assault in Indonesia, (Article at [CB 77] reference in reasons [CB 107-108]) that article had been submitted by RACS on behalf of the applicant and is specifically excluded from the requirements of s.424A by sub-s.424A(3)(b).
I am of the view that the Tribunal did extract and advise the applicant of the gravamen of the country information which it intended to use. The question is whether or not the applicant should have had an opportunity of considering that information for the purposes of providing rebuttal evidence. These matters were considered by Beaumont J in NAVM v Minister for Immigration [2004] FCA 99 where at [30] His Honour describes a situation very similar to the one in this case. In the extract set out below from the Judgment His Honour deals with this question in a manner in which I would not wish to improve on. For the reasons given by His Honour, which seem to me to apply equally in this case, I would have to reject the claim relating to the country information, which in any event seems to me to fall within he definition within sub-s.424A(3)(a):
[30] “Noting that Mr Fergus revealed to the Tribunal the information available to him, the applicant submits that to be given the requisite opportunity, in the circumstances of his case, he or his advisor had to have been provided with the actual documents upon which the Tribunal relied. Mr Fergus says in his affidavit that had the relevant material been provided, he would have responded. If his evidence on that point is accepted (and it was not disputed), then prejudice to the applicant is established, and the decision should be set aside.
[31] I have difficulty accepting the applicant’s submission, for the several reasons advanced for the respondent Minister as follows:
· Because the Tribunal was concerned with whether it accepted the applicant’s account of his experiences and fears, the fact that some of the documents were not the most recent available, does not form a basis for criticising its conclusions. The applicant claimed that he joined Falun Gong in 1997, his group was banned in 1999 and he came to Australia in September 2001. Documents dated 1999 and 2000 were therefore likely to be relevant in assessing the veracity of his claims. (In any event, his claim appears to be an attack on the merits.)
· The conclusion which the Tribunal was inclined to draw from the documents was canvassed with the applicant. The Tribunal’s reasons record that it put its view of the country information to him and he replied that it was not correct. The transcript extracts now quoted by the applicant bear this out. The applicant and his solicitor could have been in no doubt that the Tribunal had information which indicated to it that ordinary Falun Gong practitioners were not subject to persecution. Since the Tribunal regarded the applicant as an ordinary practitioner, this was obviously a point which needed to be answered. The fact that the Tribunal did not refer to specific documents did not prevent the applicant and his adviser from making a response to the substance of the information. Specifically –
b)The applicant’s adviser had provided a written submission prior to the hearing, which included extensive references to relevant documents. The Tribunal’s attention could have been drawn to these sources.
c)The applicant was able to respond orally to the Tribunal’s indication of the conclusion it was inclined to reach. His adviser was invited to make submissions at the end of the hearing.
d)Having alerted the applicant and his adviser to the issue, the Tribunal did not resist any attempt by them to learn more about its sources of information and build a case in response. The Tribunal was not asked to identify its particular sources or to allow any further time for the applicant to make further submissions.
e)The fact that it might have been difficult for the applicant to obtain independent evidence does not cast upon the Tribunal a duty to assist the applicant in that task, since the Tribunal is not obliged to make the applicant’s case.
[32] I further accept the Minister’s submission that the form that disclosure of material must take will depend on the nature and context of the decision. It must be borne in mind that the Tribunal is a non-judicial, inquisitorial body (i.e. there is no contradictor), with a heavy case load, which is enjoined by statute to be, inter alia, economical and quick and yet to act according to substantial justice. Tribunal members commonly draw on a body of accumulated knowledge which may encompass a large number of documents.
[33] The authorities confirm that procedural fairness requires an applicant to be acquainted with the issues upon which the decision will turn, so that he or she may put a case concerning them. In protection visa decisions, that does not (at least ordinarily) require provision of, or reference to, particular documents. It is sufficient if the ‘substance’ of the ‘information’ is conveyed, so that the applicant may put arguments about its relevance or adduce whatever competing material is available to him or her. In my view, that was done in the present case.”
Other grounds
The applicant put forward certain other grounds in her advocate’s written submissions which were not abandoned but which were not pressed with the force of the three matters referred to above. The first related to a complaint that the applicant was not permitted the use of a female interpreter. I am satisfied from reading the transcript that the Tribunal was sensitive of the applicant’s concerns. The Tribunal accepted the applicant’s evidence concerning the assault and it does not seem that anything she would have said to a female interpreter would have affected the Tribunal’s decision on this point. No credibility findings were made against the applicant so that any reticence she may have felt in discussing matters through a male interpreter did not affect the outcome of her application.
The applicant also claims that the Tribunal fell into error by not accepting that her attacker was a policeman. The applicant gave evidence concerning this. The Tribunal did not deny that whatever words were alleged to have been used were used but came to a conclusion that those words did not convince it that the assailant was necessarily telling the truth. Even the applicant conceded that she did not know whether it was true [T8]. Any error of fact or any claim of illogicality on the part of the Tribunal in regard to this matter would not constitute errors within jurisdiction: MIMA; Ex parte Cohen (2001) 75 ALJR 542 at [36]; MIMA v Rajalingam (1999) 93 FCR 220 at [146]; MIMA v Epeabaka [1999] FCA 1 at [25]; NAMM of 2002 v MIMIA [2003] FCAFC 32 at [46].
The applicant also complains that the Tribunal took into account irrelevant material being the lapse of time since the assaults took place and a lessening of communal violence. It could well be relevant that after a considerable lapse of time the applicant’s assailant might no longer have any continuing interest in harming her for any number of reasons. In any event, it is not every piece of irrelevant information that would constitute a jurisdictional error in the Yusuf sense. The joint judgment of McHugh, Gummow and Hayne JJ in MIMA v Yusuf [2001] HCA 30 stated at [82]:
“The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute.” (emphasis added)
I cannot see how review could be granted on this basis. I am equally satisfied that the Tribunal’s interest in the lessening of communal violence was relevant particularly to its examination of the applicant’s objective fear to return.
Findings
The discussion about her father giving evidence at [T19] and [20] does appear to focus upon evidence he might give which has a nexus to the Convention reasons of ethnicity or religion. This is not surprising given that it was only after the end of the Tribunal hearing that the migration agent made it clear that the applicant wished the Tribunal to consider her within a larger social group.
However, I am troubled by the fact that the Tribunal did not give any indication in its reasons that it had considered the question of the applicant’s membership of the social group of women in Indonesia. The possibility that such a social group could exist would have been known to the Tribunal from the decision in MIMA v Khawar [2002] HCA 14 where at [102] Kirby J said:
“But where, as here, the Tribunal failed to address itself to the essential features of the case which the respondent had presented to establish persecution and to identify herself with a “particular social group” in Pakistan, this did not amount to by-passing unnecessary complications in the case. It represents an impermissible attempt to oversimplify the matter by ignoring essential factual determinations which, if decided in particular ways, would have brought the respondent within the Convention definition of “refugee” entitling her, by law, to the protection of Australia. This the Tribunal could not do. The Federal Court was correct to send the matter back to the Tribunal for reconsideration.”
In Dranichnikovv MIMA [2003] HCA 26 at [30] Gummow and Callinan JJ said:
“The Dranichnikov’s case as presented to the Tribunal has in common with Ms Khawar’s case, an apparent deliberate abstention by the authorities from the affording of protection to a member of an identified group”
Independent evidence put forward in this case does not indicate a deliberate abstention by the authorities from affording protection to a member of an identified group but does seem to indicate an inability of the authorities to provide protection. It is the Tribunal’s task to consider whether or not that inability or failure extends to the applicant and constitutes persecution in respect of which she has a well-founded fear.
I believe that the Tribunal has failed to complete the task which it was mandated to undertake and in these circumstances the most appropriate thing to do is to grant review of the decision of the Tribunal in order that the matter can be reconsidered and the question of the existence of a social group, the applicant’s membership of it and whether or not she was persecuted as a result can be determined.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Raphael FM
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