SZATF v Minister for Immigration - [2005] FMCA 54

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZATF v MINISTER FOR IMMIGRATION

[2005] FMCA 54

MIGRATION – Application to review decision of Refugee Review Tribunal – whether lack of procedural fairness in failing to put specific items of country information to the applicant for comment – whether no evidence for particular conclusion.

Migration Act 1958 (Cth)

Re MIMA; Ex parte Lam (2003) 195 ALR 502
Kioa v West (1985) 159 CLR 550
Kanda v Government of Malaya [1962] AC 322
Annetts v McCann (1990) 170 CLR 596
Haoucher v MIEA (1990) 169 CLR 648
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Miah (2001) 206 CLR 57
WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALD 1
NARV v MIMIA [2003] ALR 494
Tuncok v MIMIA [2003] FCA 1069
NAMW v MIMIA [2004] FCAFC 264
Re RRT; Ex parte Aala (2000) 204 CLR 82
Stead v State Government Insurance Commission (1985) 161 CLR 141
VHAP of 2002 v MIMIA [2004] FCAFC 82
Mahon v Air New Zealand (1984) AC 808
MIMA v Rajamanakin [2002] HCA 32
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 76 ALJR 966

Applicant:

SZATF

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ1055 of 2003

Delivered on:

27 January 2005

Delivered at:

Sydney

Hearing date:

2 July 2004

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Mr J.D. Smith

Counsel for the Respondent:

Mr J. Potts

Solicitors for the Respondent:

Clayton Utz

ORDERS

That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1005 of 2003

SZATF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Background

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 20 March 2001 affirming a decision of a delegate of the respondent not to grant the applicant and her daughter protection visas.
The applicant and her daughter, who are citizens of Indonesia, arrived in Australia on 24 December 1999. On 20 January 2000 they lodged an application for protection visas. On 12 February 2000 a delegate of the respondent refused the application and the applicant sought review by the Tribunal. The applicant attended a hearing held by the Tribunal on 1 February 2001. The Tribunal handed down its decision on 20 March 2001. Subsequently the applicant was involved in the Lie class action. She commenced proceedings in this Court seeking a review of the Tribunal decision on 13 June 2003.
The applicant claimed to fear persecution in Indonesia as an ethnic Chinese and a Christian. In her review application she also claimed that on two occasions (in 1988 and 1994) she was assaulted and robbed in the streets of Jakarta by native Indonesians and that she was targeted because she is ethnic Chinese. She fears that one day something will happen to her or to her daughter “like you see in the news”. The Tribunal took this to mean that she feared that she may at some stage be a victim of either anti-Christian or anti-Chinese activity in Indonesia. The applicant claimed to doubt the ability of the authorities to protect her and that she was fearful for her daughter if she and her daughter returned to Indonesia.
The Tribunal accepted that the applicant had been attacked and robbed in the street on two occasions and that these attacks may have been carried out by native Indonesians who targeted her because she was ethnic Chinese. It found that the primary motivation behind these attacks was robbery, but that race may also have played a part in the motivation. The Tribunal also accepted on the basis of independent evidence to which it referred, that there was a history of violence against the Chinese in Indonesia but it noted that the two incidents involving the applicant were isolated incidents happening over a ten year time span. The Tribunal considered the possibility of harm befalling the applicant because of her ethnicity and/or religion in the future. It had regard to the absence in the Tribunal hearing of any specific claims by the applicant in relation to religion and to the fact that the applicant had lived in Jakarta where attacks on Christians were relatively minor and sporadic and not in an area such as Ambon where attacks were of a substantial and serious nature. It found that there existed only a remote possibility as opposed to a real possibility that the applicant would be caught up in anti-Christian or anti-Chinese violence on her return to Jakarta.
In addition, the Tribunal was not satisfied that the Indonesian authorities were either unable or unwilling to protect the applicant or her daughter having regard to the fact that on the first occasion of assault the authorities were not alerted and that on the second occasion the hospital did alert the police who then took action. The Tribunal noted independent evidence that the authorities had acted in response to the Christmas Eve bombings in Jakarta in December 2000.
The Tribunal also considered the applicant’s claims of discrimination on the basis of her race. She had made only one specific claim of this nature in her application for review, which was that she was not allowed to speak Chinese, but she did not mention this at the Tribunal hearing. The Tribunal did not accept that she subjectively feared discrimination on this basis. It accepted on the basis of independent evidence cited that as an ethnic Chinese in Indonesia she may have faced discrimination, but it had regard to independent evidence indicating that the current Indonesian government was taking measures to eliminate discrimination against the Chinese, including the lifting of a ban on the use of the Chinese language. The Tribunal accepted that the applicant may have faced discrimination but was not satisfied that this gave rise to a well-founded fear of persecution. On the basis of these findings the Tribunal concluded that the applicant did not have a well-founded fear of persecution for a Convention reason.

Grounds of review

The only ground of review identified at the time of the application to this Court was a single ground referred to in the affidavit of the applicant’s legal representative:
The Refugee Review Tribunal failed to give the applicants an opportunity to address material relied upon it [sic] in its decision to affirm the decision of a delegate of the respondent to refuse to grant the applicants a protection visa.
The applicant’s written submissions elaborate upon and clarify this ground of review. It is claimed that in making the findings that there was only a remote possibility that the applicant would be caught up in anti-Christian or anti-Chinese violence upon her return to Jakarta (the “first finding”) and that the Indonesian authorities were able and willing to protect the applicant and her daughter so that in the remote chance that the applicants were caught up in anti-Chinese violence they could avail themselves of the protection of the authorities (the “second finding”) the Tribunal had relied upon four specified items of country information not referred to by the delegate in his decision which were adverse to the applicants’ interests but that the Tribunal did not give the applicants an opportunity to address this information. It was contended that in relying on this information without advising the applicant of its intention to do so and without offering her an opportunity to comment on it the Tribunal denied the applicant procedural fairness, (the “country information” ground).
In oral submissions in reply counsel for the applicant also submitted that the Tribunal had made a finding that attacks on Christians in Jakarta were relatively minor and sporadic (as opposed to the situation in an area such as Ambon where the attacks were of a substantial and serious nature) in the absence of any supporting evidence and that this involved a denial of natural justice, (the “no evidence” ground) (see Mahon v Air New Zealand Ltd [1984] AC 808).
It is not in dispute that s422B of the Migration Act 1958 (Cth) does not apply in this case. The respondent conceded that in those circumstances, notwithstanding s424A, some common law rules of procedural fairness continue to apply to the Tribunal’s case (Re MIMIA; Ex parte Miah (2001) 206 CLR 57) and that a serious breach of the rules of procedural fairness or natural justice would constitute a jurisdictional error.

Country information and procedural fairness

The four items of information in issue were described by the Tribunal as follows:
(1)Indonesia arrests three more over Christmas bombings: 3 January 2001. CX47885;
(2)Chinese community offered prospect of healing wounds: 7 January 2000. CX39131;
(3)Government to review laws affecting ethnic Chinese minority: 14 January 2000. CX39320; and
(4)Ethnic Chinese in Indonesia reportedly to be allowed to celebrate new year; 24 January 2001. CX48934.
The Tribunal reasons for decision in fact refer to six items of independent evidence. However, the applicant’s submissions relate only to these four items on which it was said the Tribunal relied in making its findings.
It is not in dispute that the particular reports in issue were not put to the applicant by the Tribunal whether by way of a s424A letter or at the Tribunal hearing. It is also apparent from the transcript of the Tribunal hearing tendered in these proceedings that while the Tribunal asked the applicant a number of questions about her claims, it did not put to her in any way any particular information that it had or to which it proposed to have regard in respect of the current situation in Indonesia other than to state at the conclusion of the hearing that the member would look at everything the applicant had told her and:
I will also look at what we call independent evidence … that is information that tells us about how the Chinese are treated in Indonesia … so when I look at that information I will look at what you handed in in writing … and I will consider carefully what you have told me today … and then I shall write my decision”.
There is no contention that the applicant was misled in any way or that any behaviour of the Tribunal gave rise to some expectation that a certain procedure would be followed. The only ground relied on by the applicant in relation to the country information is the claim that in the circumstances of this case the applicant was denied procedural fairness when the Tribunal did not give her the opportunity to respond to and make submissions in respect of the particular information on which it proposed to rely in making its decision.
It was contended first that the Tribunal relied on the four items of information referred to above not only in accepting that there existed a history of violence against the Chinese in Indonesia but also in finding that attacks on Christians were relatively minor and sporadic in Jakarta as opposed to in an area such as Ambon (although it was also contended that the information did not support such a finding) and that it was these findings and the fact that the only incidents the applicant complained of were isolated incidents over a ten year span that led the Tribunal to the first of its material findings, that there was only a remote possibility that the applicant would be caught up in anti-Christian or anti-Chinese violence on her return to Jakarta.
It was also contended that in proceeding to deal with the question of state protection the Tribunal must have considered such a finding to be material to its decision and that it took three matters into account in making its findings in that respect: the applicant’s actions in the past, the police action in response and also independent information that the authorities did act in response to the “Christmas Eve bombings” in Jakarta. This last finding was said to be based on some of the independent information not put to the applicant, although the applicant contended the independent information on this issue was in fact somewhat equivocal. The applicant’s counsel described this as the second critical or material finding. He submitted that both of these findings relied on the independent information which was not given to the applicant. Nor were particulars of such information given to the applicant. It was contended that had she been given such material and an opportunity to comment it could have made a difference to the decision.
As Mason J stated in Kioa v West (1985) 159 CLR 550 (at 582):
It is a fundamental rule of the common law doctrine of natural justice as expressed in traditional terms that generally speaking when an order is to be made to deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it.
More generally Kioa v West was cited by the applicant in support of the proposition which emerges from the judgment of Brennan J at 628 that:
A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with the relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise.
However, his Honour clarified what was meant by such an opportunity as follows:
A person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. Administrative decision-making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made. Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fully observed. … Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information.”
(See to the same effect Gibbs CJ at 569, albeit that the Chief Justice was in dissent in that case) and also see Re MIMA; Ex parte Miah (2001) 206 CLR 57 at [96] – [97] per McHugh J).
It is not necessary for the Tribunal to draw to a person’s attention material that is not adverse to his or her case or matters of which the person would be clearly aware or material not really relied upon by the Tribunal in reaching its decision. As Mason J in Kioa v West stated, the need to draw the applicant’s attention to material applies where the material concerns the critical issue or factor. Moreover it is sufficient if the “gravamen or substance” of the issue or factor is brought to the applicant’s attention or that the applicant is on notice of its “essential features” (see Pilburra Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal & Torres Strait Islander Affairs (2000) 103 FCR 539 at 557 and cases there cited).

The circumstances preceding the decision

What procedural fairness requires is to be determined by reference to the particular circumstances of the case. In this instance it is relevant to have regard to the applicant’s claims and to the use made of country information not only in the Tribunal decision but also in the decision of the delegate of the respondent. It is notable first that in the written submission of 17 January 2000, provided in connection with the protection visa application, the migration agent for the applicant referred to the then current situation in Indonesia, in particular claiming that there had been a lot of anti-Chinese riots in Indonesia, that the Chinese had been targeted again and again and that the killing of Christians had continued in Ambon and had spread to Lombok, that the Indonesian government had interfered and backed the Muslims because most people in the government were Muslims, that there was no hope for Christians and that there would be a holy war. It was contended that the government had no capacity to protect Chinese and Christians and that they created problems for the Chinese and Christians. This submission acknowledged that there existed an official commitment on the part of the Indonesian government to provide security to the ethnic Chinese community but submitted that it was clear that the security forces had stepped in on most occasions too late to forestall serious damage to ethnic Chinese property and serious harm to ethnic Chinese persons and that resources had been stretched at times leading to a failure by the state to provide adequate protection. It was also claimed that there was evidence of involvement of organised military groups which orchestrated at least the May 1998 riots and that “they” had refused to provide assistance in earlier rioting episodes. It was suggested that it was too early to say that the situation in Indonesia had become normal and that most analysts agreed that the situation remained volatile and that further socio-political upheaval was almost inevitable. It was contended that abuses against the ethnic Chinese community had continued since the May 1998 riots. The applicant claimed she would be killed if she was caught up in an anti-Chinese riot. Procedural fairness would not require that independent evidence consistent with these claims be put to the applicant. There is no obligation on the Tribunal to draw to the attention of the applicant favourable material or material consistent with her claims about the situation in Indonesia. The submission also makes it clear that the applicant was aware that the extent of anti-Chinese and anti-Christian violence in Indonesia and the level of protection the Indonesian government could offer was relevant.
The delegate’s decision of 12 February 2000 refusing the protection visa application refers to a considerable body of independent evidence in Part B of the decision. Aspects of this information are also discussed in the reasons for decision. The riots of May 1998 and the government response to those riots are addressed as well as subsequent developments in Indonesia. Of relevance to the claim now made by the applicant, one of the items of independent evidence referred to and extracted in the Tribunal reasons for decision is the country information report CX39131. A report bearing this reference is described in the delegate’s reasons for decision as a Reuters Business Briefing dated 22 October 199 [sic] entitled Chinese Community Offered Prospects of Healing Wounds. The extract from this report is in the same terms as those contained in the document provided to the court in the bundle of relevant documents and identified as CX39131. The part of that report quoted in the delegate’s decision is the introduction to an article from the South China Morning Post which summarises the essence of what is reported in that article as follows:
Abdurrahman Wahid, though cast as a Muslim leader, is perhaps one of the best prospects for repairing rifts between ethnic Chinese and other Indonesians, Chinese leaders and academic say,
He has had for a long time a very positive view on the presence of the ethnic Chinese in Indonesia,” said Dr Mely G. Tan, a sociologist at the Atma Jaya University.
Such information was brought to the attention of the applicant in the decision of the delegate. In an affidavit filed in these proceedings the applicant attested that while she received a letter from the Department dated 12 February 2000 (being the letter enclosing the decision) she did not recall receiving the decision record (although she did have a copy of it) but that if she did receive it she did not have it translated into Bahasa Indonesian. However it is notable that not only does the applicant concede that she has a copy of this decision but also that it is apparent from the material before the court that a copy of the decision was sent to the migration agent who also represented her in the proceedings before the Tribunal. The fact that the applicant herself chose not to have the decision translated should not in these circumstances mean that the Tribunal could not proceed on the basis that the applicant had either directly or through her migration agent, the opportunity to be aware of what was contained in the delegate’s decision. It is no answer for the applicant to say that she did not have the delegate’s decision translated. She was represented by a migration agent and the delegate’s decision was provided both to her and to her migration agent. In such circumstances the critical issues covered by other information considered in the delegate’s decision had been sufficiently brought to her attention. The Tribunal also told the applicant in the Tribunal hearing that it had the Departmental file before it and had read all the information in that file and in the protection visa application. In these circumstances it was not necessary for the Tribunal to draw the applicant’s attention to the substance of each item of independent information referred to in the delegate’s decision and relied on by the Tribunal.

The report CX39131, or the substance of this report, was clearly before the delegate and is cited in the delegate’s decision and was material available to the applicant. It relevance is also apparent from the delegate’s decision. The reference to and discussion of an article in identical terms to the article relied on by the Tribunal afforded the applicant sufficient notice of the relevance of such information to her application and hence to her application for review by the Tribunal. To the extent that the Tribunal relied on this report in making the finding in relation to a remote possibility that the applicant would be caught up in anti-Chinese or anti-Christian violence in Jakarta and to the extent that this report contains material adverse to the applicant it is material in respect of which the applicant was on notice.
Also extracted and relied upon in the delegate’s decision was a Reuters Business Briefing dated 6 January 2000 titled Indonesian Government to Review Discriminative Laws Against Ethnic Chinese which reported on a government pledge to review such laws following a pledge made by the President to eliminate discrimination against the ethnic Chinese and other minorities. While the Tribunal does not refer to an item of information bearing the same identifying number (CX39586) the document CX39320 dated 14 January 2000 and headed Government to Review Laws Affecting Ethnic Chinese Minority is an excerpt from a report by Radio Australia on 5 January 2000 reporting on precisely the same intention of the Indonesian Government to review longstanding laws discriminating against the country’s ethnic Chinese minority.
In such circumstances the substance or gravamen of this particular “adverse” information was made known to the applicant by its presence in the delegate’s decision and did not have to be disclosed by the Tribunal.
The delegate’s decision also relied on a report of 7 February 2000 from Sydney Morning Herald (CX39854) reporting that there had been celebration of Chinese New Year in Jakarta which followed a decision by the new President soon after being elected in October 1999 to lift a 1967 ban on Chinese festivities and noting that the Chinese were for the first time allowed to celebrate in the streets for more than 30 years. In the Tribunal reasons for decision the Tribunal relied on a more recent source of country information: Ethnic Chinese in Indonesia were reportedly to be allowed to celebrate New Year, dated 24 January 2001 (CX48934) as establishing that in January 2001 the government had agreed that Chinese New Year would become a holiday for ethnic Chinese but the applicant had already been alerted to the relevance of changes in the government’s attitude to ethnic Chinese celebrations.
More generally, the delegate’s decision also described improvements in the situation and treatment of ethnic Chinese in Indonesia. It also dealt with the issue of state protection for ethnic Chinese Indonesians referring to country information to the effect that while there was a possibility of further civil unrest in Indonesia, the risk to ethnic Chinese of being caught up in a violent incident was quite low, to positive reforms initiated by the new government of President Wahid and a demonstrated commitment to resolve problems of unrest in areas such as Aceh and the Moluccas. The delegate found that there were particular areas which were more prone to unrest than others in Indonesia such as Aceh, Ambon and related islands where there had been ongoing and recent reports of violence but that those regions were not representative of the situation elsewhere (in particular that the reports of religious/ethnic violence in Ambon and surrounding islands did not reflect the situation elsewhere in Indonesia for ethnic Chinese and/or Christians). This background is relevant to the Tribunal findings and its consideration of reports which post-dated the delegate’s decision relating to the government’s response to the December 2000 bombings. The relevance of the issue of the response of the authorities to incidents of violence was “obvious” (McHugh J in Muin at [133]). The absence of evidence of more than minor and sporadic attacks on Christians in Jakarta was also of significance in relation to the subsequent findings by the Tribunal.
It is also relevant that in her application for review of the delegate’s decision, while the applicant described particular events that she complained had occurred in 1988 and 1994, her only comment on the delegate’s decision was a statement that she believed that the situation was uncontrollable and that authorities could not do what they say. In the Tribunal hearing the Tribunal member addressed the applicant’s claims about the past. It asked her whether she was scared to return and what precisely she was scared of, whether she kept in contact with anyone in Jakarta to tell her how things were going and whether there was anything else she would like to tell the Tribunal about. This gave her an opportunity to address the situation in Indonesia as presented in the delegate’s decision. She was also asked if she thought things would get better in Indonesia for the Chinese. She indicated that she did not know and could not tell and there was nothing further that she wanted to tell the Tribunal or explain to it.
At the conclusion of the hearing the Tribunal member told the applicant that the member would look at independent information about how the Chinese were treated in Indonesia. The applicant was asked if she had any questions. She responded “no”.

The Tribunal decision

The Tribunal reasons for decision do not rely only on the four items of country information that are in issue in these proceedings. Also of particular relevance was a DFAT country information report dated 6 August 1999 in relation to the position of ethnic Chinese in Indonesia which contained information consistent with the general country information relied on by the delegate and referred to in the delegate’s reasons for decision. There is no suggestion by the applicant that the Tribunal erred in failing to bring this information to her attention for comment. After setting out a detailed extract from this report the Tribunal continued:
Since this report there have been a number of developments in respect of ethnic Chinese and Christians in Indonesia. In December 2000 bombs were placed in several Christian churches in Jakarta killing 15 persons. The government claimed that these attacks were aimed at destabilising the government (Wahid said Christmas Eve bombings aimed to topple him, 3 Jan 2001 CX47899). The Indonesian police have arrested several persons who they suspect to be responsible for the bomb attacks (Indonesia arrests three more over Christmas bombings, 3 Jan 2001 CX47885). These attacks coincide with a number of moves by the Wahid Government to improve the situation of the ethnic Chinese in Indonesia (Chinese community offered prospect of healing wounds, 7 Jan 2000 CX39131) for instance the government indicated in January 2000 that it would review laws that discriminate against the Chinese (government to review laws affecting ethnic Chinese minority, 14 Jan 2000 CX39320) and in January 2001 Wahid agreed that Chinese New Year would become a holiday for ethnic Chinese (ethnic Chinese in Indonesia reportedly to be allowed to celebrate new year, 24 Jan 2001 CX48934).
In the findings and reasons part of its decision the Tribunal relied on independent evidence about the situation in Indonesia in a number of ways. First while finding that the primary motivation behind the two attacks on the applicant was that of robbery, it accepted that the applicant’s race (ethnic Chinese) may also have played a part in the motivation behind these attacks “on the basis of the independent evidence cited above that there does exist a history of violence against the Chinese in Indonesia” although it noted that the incidents were isolated happening over a ten year time span.
The Tribunal then referred to the submission from the migration agent that the applicant claimed as a Christian she would never feel safe because of events in places such as Ambon. It was in this context that it noted that not only had the applicant made no specific claims based on religion at the hearing but also that she lived in Jakarta “where attacks on Christians are relatively minor and sporadic and not in an area such as Ambon where the attacks are of a substantial and serious nature”. The Tribunal found that there existed only a remote possibility that the applicant would be caught up in anti-Christian or anti-Chinese violence on her return to Jakarta, (the “first finding”).
The Tribunal observation that the two incidents were isolated incidents over a ten year time span was not based on the independent information. The Tribunal also had regard to the fact that in the hearing the applicant made no specific claims in regard to religion. Again this factor did not depend on independent information. The finding that the applicant lived in Jakarta where attacks on Christians were relatively minor and sporadic and not in an area such as Ambon where the attacks were of a substantial and serious nature was consistent with what the delegate had found about the situation in Indonesia (that events in Ambon and surrounding areas did not reflect the situation elsewhere in Indonesia for ethnic Chinese and for Christians and were not a result of state policy). Indeed the delegate had also considered the fact that the applicant lived in Jakarta and in finding state protection would be available there, took into account cited independent evidence indicating that the riots were for the most part random and sporadic incidents and as to subsequent government action. This was information made known to the applicant by the delegate’s decision.
As Allsop J, with whom Gyles and Conti JJ agreed on this point, stated in VHAP of 2002 v MIMIA [2004] FCAFC 82 at [28], in order to perform the task required by the Migration Act 1958 the Tribunal was required to inform and educate itself about the relevant country of nationality generally and about aspects of that country’s life and affairs pertinent to the applicant’s claims. As his Honour pointed out, in so analysing that material “the Tribunal might form a view about the applicant or her version of events, which fairness dictated, must be raised”. However in this instance the Tribunal did not disagree with the applicant’s account of what had occurred in Ambon. Allsop J went on to say “The Tribunal will often have a store of experience and knowledge about the country in question without the need for specific reference to material”. The Tribunal does not refer to specific items of country information in support of its finding that attacks on Christians were relatively minor and sporadic in Jakarta and indeed it may well be that it is an absence of information on which the Tribunal relied in addition to the material referred to in the delegate’s decision in relation to the situation in Ambon. No issue is taken with the Tribunal’s failure to disclose the information relied on in the DFAT country information report CX41092 from August 1999 which distinguished between what had occurred in 1998 and thereafter and between circumstances where there had been disturbances between Christians and Muslims (as in Ambon) and elsewhere and where there had not, and which addressed the lack of a clear objective basis for concern about anti-Chinese violence in Indonesia. In other words this information noted the absence of a repetition of the events of May 1998 in Jakarta after that time. It is information consistent with the first finding. Nor did the applicant take issue with the Tribunal’s use of, and failure to disclose, country information contained in item number CX47899 in which the government claimed that December 2000 bomb attacks on Christian churches in Jakarta were aimed at destabilising the government. This report and the absence of reports of other recent attacks in Jakarta may also have been relied on by the Tribunal in support of its conclusion that in Jakarta attacks on Christians had been relatively minor and sporadic compared to the situation in Ambon.
As indicated above, the information in item CX48934 was consistent with the information addressed by the delegate. In any event while the Tribunal referred generally to the fact that Chinese New Year would become a holiday for ethnic Chinese in outlining recent developments in Indonesia I am not satisfied that the specific detail of this information was critical in the Tribunal in reaching what the applicant’s counsel described as the “first finding” – that there existed only a remote possibility that the applicant would be caught up in anti-Christian or anti-Chinese violence on her return to Jakarta in a manner requiring disclosure to her.
I am not satisfied that a lack of procedural fairness has been established in the manner contended. The substance of the critical issues as relevant to the “first finding” to which the four items of independent country information related were matters of which the applicant was already on notice because of the material canvassed by the delegate in the delegate’s decision, what happened in the Tribunal hearing and having regard to the submissions made by the applicant through her migration agent in connection with the protection visa application.
In the particular circumstances of this case the Tribunal was not obliged to disclose any of the four items of country information in issue in this case as material critical to the finding in relation to there being only a remote possibility that the applicant would be caught up in either anti-Christian or anti-Chinese violence on her return to Jakarta. No practical unfairness has been established. There has been no breach of the rules of natural justice. The Tribunal did refer to specific material for assistance to inform itself of matters against which to assess the claims of the applicant. However, the subjects of concern were raised through the delegate’s decision and in the course of the Tribunal hearing and an opportunity was afforded to the applicant to address critical issues in the course of the review application, albeit that the Tribunal did not provide her with details of four specific items of independent country information. The country information related to issues clearly “on the table” to be addressed (VHAP of 2002 v MIMIA [2004] FCAFC 82 at [17] and [28] and cf Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 76 ALJR at [131] per McHugh J).
The second finding which was said by the applicant to be based on the independent country information was the finding that the Indonesian authorities were able and willing to protect the applicant and her daughter such that in the remote chance that the applicants were caught up in anti-Chinese violence they could avail themselves of the protection of the authorities. As the “first” finding was a separate and independent finding it is sufficient to dispose of the applicant’s claim of a well-founded fear of persecution. No jurisdictional error has been demonstrated in relation to that finding. Hence any error in relation to the so-called “second finding” could not be determinative. It was merely an alternative basis for the ultimate finding that the applicant did not have a well-founded fear of persecution.
In any event, again it is important to consider the precise basis for this finding. First the Tribunal was not satisfied that the Indonesian authorities were either unable to or unwilling to protect the applicant and her daughter having regard to what had occurred in the past after the two assaults. On the first occasion the authorities were not alerted and hence could not have been expected to have taken action. On the second occasion the hospital alerted the police and they took action. The other factor relied on was the independent evidence that the authorities did act in response to the Christmas Eve bombings in Jakarta (item CX47885). There is no precise equivalent to this report in the delegate’s decision, no doubt because it relates to an incident which occurred after the delegate’s decision. Only the second basis for the finding involved any reliance on the country information.
Contrary to the submissions of counsel for the respondent I do not accept that the two bases for the finding in relation to state protection are separate independent bases but rather that the matters are cumulative factors taken into account in reaching the conclusion that the Tribunal was not satisfied that the Indonesian authorities were either unable or unwilling to protect the applicant or her daughter. However the particular information relied on in relation to the arrest of persons after the bombing and the authorities’ response to violence is consistent with the other general country information about the Indonesian government’s response to violence detailed at some length in the delegate’s decision. Hence the critical issue of the Indonesian government’s response to incidents of violence (not simply the broad issue of whether there was effective state protection) was clearly a matter of which the applicant was on notice. As Kirby J stated in Miah at [196] after indicating that an applicant ought not to be taken by surprise:
To conclude in this way does not imply that every delegate receiving any update of political information, would be obliged, before deciding a refugee application, to call such information to the notice of the person affected for comment … That requirement would add unacceptable inflexibilities to the efficient performance by delegates of their functions under the Act.
Moreover in relation to this particular information it is not clear what, if anything, the applicant could have done with the information had it been provided to her. Counsel for the applicant suggested that Kioa v West established that once it was shown that there was relevant, credible evidence before the Tribunal on which it proposed to rely, then there was a denial of natural justice if the person whose interests are affected was not given the opportunity to address that information. It was suggested that this was so whether or not the information appeared in the decision and without the need for the applicant to prove what she would have done had she been informed of the information (see Kanda v Government of Malaya [1962] AC 322, Annetts v McCann (1990) 170 CLR 596 at 603 and Haoucher v MIEA (1990) 169 CLR 648 at 655, 662 – 663, 671 and 684). It was pointed out that in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Miah (2001) 206 CLR 57 a failure to accord procedural fairness was established in circumstances where the applicant did not have the opportunity to comment on changed circumstances and there was no suggestion in that case that it was necessary for the applicant to lead evidence of what he would have done had he had the opportunity to comment on the change in government. It was the lack of an opportunity to put his case and to meet the case that was put against him that constituted the denial of procedural fairness (see Gaudron J at 86 and also see McHugh J at 96 – 97).
The respondent contended that there was no denial of procedural fairness in the legal sense because there was no unfairness in fact as the applicant had not satisfied the Court that she could have used the opportunity had she had notification of the material to make a difference to the outcome (see Re MIMA; Ex parte Lam (2003) 195 ALR 502). In Lam Gleeson CJ stated at [37]:
Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
In that case an applicant had lost no opportunity to advance his case and had not relied to his disadvantage on a statement as to intended action by the Minister which the Minister had not then taken. Hence there was no lack of procedural fairness (also see McHugh and Gummow JJ at [105] and [106], Hayne J at [115] and Callinan J at [149]). In Lam it had been alleged that there had been a representation in the form of correspondence that created an expectation in the mind of the applicant that the guardian of his children would be contacted to comment on his possible deportation. The guardian was not contacted, but the court held that there could be no unfairness in a case where it was immaterial whether a representation was made or not because there was no suggestion that the representation was relied upon.

As the Full Court of the Federal Court pointed out in WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALD 1 at [56]-[58] had the applicant relied on the representation the result may have been different, but what was critical in Lam was that the applicant never said that he relied upon the representation. Lam is distinguishable from cases such as Kioa v West where the denial of procedural fairness arose because the applicant was not given a chance to answer the case put against him or her. As was stated in WACO at [58]:
The comments of Gleeson CJ at [36] – [38] and particularly his Honour’s reference to “practical injustice” must be read in the light of the facts of the case. Particularly we do not understand his Honour to be saying that it is necessary in each case where denial of natural justice is alleged that the person claiming not to have been given an opportunity to put his or her case lead evidence to show that had the opportunity been given it would make a difference to the outcome. There can be a denial of natural justice where a decision-maker makes a finding on an important issue in a case without notice that the issue is the subject of any dispute and where the party affected adversely by that finding is not given an opportunity to be heard. That is because so to do will itself be unfair. It will not be necessary for the party alleging unfairness to put before the court the evidence which he would have presented had there not been a miscarriage of justice. It is sufficient in such a case that the party has not been afforded an opportunity to put his or her case. Only where the case is one where it can be shown that the appellant could not, even if given the opportunity to do so, affect the outcome would it be held that there was no denial of procedural fairness. If the possibility exists that the appellants, if given the opportunity might be able to make submissions or call evidence which could affect the outcome the appellant will not fail merely because the appellant has not proved that the submissions or evidence would affect the outcome.
Also see NARV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] ALR 494 per Ryan and Finklestein JJ at [13]-[18] and Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1069. As Ryan and Finklestein JJ pointed out in NARV (and this part of their decision is not affected by what a differently constituted Full Court of the Federal Court had to say in relation to s424A in NAMW v MIMIA [2004] FCAFC 264) there is no principle that in every case where the complaint is that there has been a denial of procedural fairness it is incumbent on an applicant to lead evidence to explain in precisely what way he or she has been adversely affected by a particular omission (cf Re RRT; Ex parte Aala (2000) 204 CLR 82 at 122 per McHugh J citing Stead v State Government Insurance Commission (1985) 161 CLR 141 at 145 in support of the proposition that “once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome”). However Ryan and Finklestein JJ did go on to acknowledge (at [18]) that there would be cases where it was not clear what, if anything, an applicant could have done with information not provided to him or her (for example, where the information was of a type difficult to controvert) and that if a court was unable to see how the applicant had suffered “practical injustice” then he or she may be required to adduce evidence to explain why he or she had been unfairly untreated. It was suggested that Re Minister for Immigration & Multicultural Affairs; Ex parte “A” (2001) 185 ALR 489 at 500 – 501 was an example of such a situation.
Where, as here, the relevant information is a factual report of arrests in response to Christmas Eve bombing it is information of a type difficult to controvert and it is not clear how the applicant has suffered practical injustice by not having this specific item of information brought to her attention. The information was not “personal” to her. It did not relate to a change in circumstances in the manner considered in Miah. In these circumstances, and given the applicant’s failure to adduce evidence to explain why she has been unfairly treated in relation to this particular information, the court cannot be satisfied that there has been any practical unfairness. The applicant had the opportunity to address the issue of the government’s response to anti-Chinese or anti-Christian violence and improvements in Indonesia since 1999. These issues were addressed in the delegate’s decision. Their relevance had been sufficiently brought to her attention. The “subjects of concern” (see Allsop J at [28] in VHAP) had been raised. The issue of the government’s response was addressed by the applicant’s migration agent. The failure to bring this particular item of information (about a response to a specific incident consistent with that recorded by the delegate and the more general 1999 country information relied on by the delegate and the Tribunal) does not constitute a denial of natural justice. Fairness did not require provision of the “specific text” of the country information seen to be of relevance (ibid).
The only other issue raised in these proceedings was a suggestion towards the end of submissions in reply by counsel for the applicant that there was no evidence for the conclusion by the Tribunal that attacks on Christians were relatively minor and sporadic in Jakarta as distinct from Ambon. It was suggested that, on the authority of MIMA v Rajamanakin [2002] HCA 32 and Mahon v Air New Zealand (1984) AC 808, if there was a finding made in the absence of evidence it was a denial of natural justice. Leave was granted to the respondent to address this submission in supplementary written submissions. The respondent conceded that there was no evidence supporting these findings in the country information referred to by the Tribunal and extracted in the court book but also pointed out that that was not the only material before the Tribunal which had expressly noted that it had before it the Department’s file. The Department’s file included at least the references to the country information before the delegate. The delegate referred at some length to country information on which the delegate relied in concluding that there were particular areas more prone to unrest than others within Indonesia and that areas such as Aceh and Ambon were not representative of the situation for the great majority of Indonesians elsewhere in the country particularly the situation of ethnic Chinese and/or Christians in Jakarta. The delegate referred expressly to the sources considered in reaching such conclusions (in particular independent information referred to as item CX28436) and found that the riots were for the most part random and sporadic incidents albeit widespread. The material relied on in the delegate’s decision was evidence before the Tribunal which provided sufficient basis for the Tribunal to make the finding that it did. There was no illogicality in this finding. It therefore cannot be said that the decision was not based upon some material that tended logically to show the existence of facts consistent with the finding (see Mahon v Air New Zealand (1984) AC 808 at 820-821).
As no jurisdictional error has been established the application must be dismissed.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 27 January 2005