SZDTM v Minister for Immigration - [2008] FMCA 39

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDTM v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 39

MIGRATION – Application to review decision of the Refugee Review Tribunal – whether Tribunal failed to disclose to the applicant issues that arose on the application for review or failed to ask the correct question.

Migration Act 1958, ss.91R, 425

Applicant A and Another v Minister for Immigration and Ethnic Affairs and Another (1997) 190 CLR 225
Attorney-General for the State of New South Wales v Quin (1990) 170 CLR
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Minister for Immigration and Citizenship and Applicant A125 of 2003 [2007] FCAFC 162
SAAK v Minister for Immigration & Multicultural Affairs [2002] FCA 367
SZBEL v Minister for Immigration and Multicultural Affairs and Indigenous Affairs and Another (2006) 231 ALR 592
SZDTM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 188

Applicant:

SZDTM

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2718 of 2006

Judgment of:

Barnes FM

Hearing date:

16 November 2007

Delivered at:

Sydney

Delivered on:

1 February 2008

REPRESENTATION

Counsel for the Applicant:

Mr L. Karp

Solicitors for the Applicant:

Parish Patience Immigration Lawyers

Counsel for the Respondents:

Mr T. Reilly

Solicitors for the Respondents:

Blake Dawson

ORDERS

That the application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2718 of 2006

SZDTM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for a review of a decision of the Refugee Review Tribunal handed down on 5 September 2006 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. The applicant, a national of Indonesia of Chinese ethnicity, arrived in Australia as a student in 1982 at the age of 26. She has been here ever since.
She applied for a protection visa in February 2001. She claimed to have experienced persecution in Indonesia because of her Chinese ethnicity and religion as a “devout Catholic” and to fear, given her personal circumstances, religion and ethnicity that she would be persecuted if forced to return to Indonesia. These claims were elaborated on in a personal statement from the applicant provided to the Department together with a submission and country information from the applicant’s migration agent. In that statement the applicant claimed that since childhood she had experienced “many insulting words and acts” from Indonesian natives. She claimed that she had to learn the Muslim way of life and recite Muslim prayers. The University she attended enrolled her in an Arabic history and language course. She claimed that she had to change universities in order to study English literature. She elaborated on her religious activities in Australia.
The applicant also claimed that her parents, who were Catholics of Chinese origin, had been persecuted by the Indonesian authorities and Indonesian people due to their ethnicity and religion. She claimed that they were forced to comply with Islamic laws and if by accident they forgot they were harassed by Indonesian people. She claimed that people spat and threw stones at them. She claimed that at school she had never been accepted and had been constantly persecuted and physically harassed by other students for being Chinese. She remembered being locked up in the school toilet for three hours every day for two weeks.
The applicant claimed she could no longer stay in Indonesia where she was being persecuted because of her ethnicity and religion and hence came to Australia.
The delegate of the first respondent put certain matters to the applicant for comment including country information about the situation in Indonesia.
The delegate rejected the application for a protection visa, referring to major changes in the circumstances in Indonesia in relation to the situation of ethnic Chinese and Catholics. In particular, the delegate found that the government had demonstrated its commitment and ability to provide effective state protection for all citizens. The delegate also expressed the view that the applicant could reasonably relocate within Indonesia.
In making these findings the delegate accepted that, based on country information, in the past the applicant and her parents may have suffered some form of discrimination or harassment because of their ethnicity and religion and that this may have caused her to have a subjective fear of returning to Indonesia. The delegate also found that the applicant’s lengthy delay in applying for a protection visa cast (a matter on which her comment had been sought) doubts on the genuineness of her claim to fear persecution on return to Indonesia.
The applicant sought review by application lodged with the Tribunal on 8 August 2002 accompanied by a submission and independent country information provided by her adviser.
The applicant attended a Tribunal hearing. The Tribunal as originally constituted (the first Tribunal) affirmed the decision under review by decision handed down on 25 July 2003. That decision was quashed by order of Bennett J on appeal from a judgment of the Federal Magistrates Court (see SZDTM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 188).
The matter was remitted to the Tribunal for reconsideration. The Tribunal invited the applicant to attend another hearing on 4 July 2006. On 3 July 2006 the applicant’s new adviser sought an adjournment of the hearing on the basis that significant new evidence had been obtained from the applicant during settlement of her statutory declaration. In particular she had provided “various accounts of actual abduction and torture as a result of her Christian faith in Indonesia”. The adviser sought additional time to obtain more detailed instructions and also to allow the applicant to undergo a psychological assessment. The Tribunal agreed to postpone the hearing. The day before the rescheduled hearing the applicant’s adviser provided the Tribunal with a statutory declaration from the applicant, a report from a psychologist, Phillip Wolfers, a detailed submission and a large volume of supporting material.
In that statutory declaration the applicant reiterated claims she had made previously about her life in Indonesia, including her victimisation by Indonesian Muslims for reason of her religion. New claims were made about specific acts against her, including that she had seen her mother held at gunpoint in order to change marks she had given to students, that she had been held hostage and threatened with rape because of her good schoolwork and that when there were riots she had to follow special precautions when walking home because she saw so many women being raped and children molested.
She also claimed that during year 7 of her schooling she was put in a dirty ditch down to her waist, harassed in a dirty toilet and treated with cruelty and forced to recite Muslim prayers and that she was punished when she could not say them properly. She claimed she was made to participate in an insulting ceremony or game that involved people making sexual gestures that she had to follow and that if she made a wrong move she was spat on and forced to lick off the spit or to reveal a part of her body.
The applicant listed a number of incidents that she claimed had occurred to her for reasons of either race or religion, including subjection to insulting words based on her race, harassment and sexual gestures by males and being chased across pedestrian bridges fearing that she was about to be raped. She claimed that if she asked for help from the police they would ask for bribes or else they would not care about it and that they also spoke improperly and insultingly to her. She claimed she had been subject to specified incidents of harassment, ostracism and discrimination. She also claimed that she was not allowed to wear religious icons and that she had faced limitations on personal religious activities, such as singing carols in public and doing various religious duties such as visiting the sick, helping the needy and participating in prayer group. She claimed that during church conferences one would always risk stone throwing or other similar actions, that she was forced to pray in a Muslim way and that otherwise she would be hit or harassed and that she was forced to fast during Ramadan.
In addition the applicant claimed that on “about 15” occasions she had been kidnapped by “various radical Muslim groups”, while visiting patients in public hospitals or in their homes or when visiting ill friends with her church group. She claimed that she had been blindfolded, put in a van and taken with the other Christians to various unknown locations away from the city. She claimed that each time they were kept in such unknown locations for not less than 24 hours and sometimes longer and after that were subjected to torture, although the older persons from the group were tortured more severely than the younger ones (and she was usually the youngest). She claimed that sometimes the captors would pour dirty water from a ditch onto hostages or put some of them into a ditch and that usually they made her watch her friends being tortured. She claimed that when she cried they would put knives to her throat, stab out cigarettes on her hands and arms or pull her hair to force her to observe more torture.
The applicant claimed that her friends were being forced not to participate in any Christian activities because their captors thought that they were trying to convert patients they were visiting to the Christian faith. She claimed that she was threatened that if she did the same as her priest was doing she would never see her parents again. She also claimed that the hostages were given food that had dirt and worms in it and that on one occasion she was beaten with bamboo sticks because her captors thought she was disobeying their order by moving. Her ankle was badly wounded and became infected after this beating.
The applicant claimed that when in Indonesia she had helped to share her Christian faith amongst the people, despite the fact that the work was hard and often dangerous. In Australia she had joined the Legion of Mary and St Vincent de Paul groups and was doing the work of evangelising, visiting the sick to help them in hospitals (much as she did in Indonesia) and visiting psychiatric units to talk and listen to patients and guide them. She claimed that approximately once a month they conducted door to door visits and spoke to various people about their faith and that she was involved in activities to bring back to the church people who had lost their faith. She also prayed with the dying in nursing homes and helped a mission to raise money by work in a piety stall. The applicant claimed that she also led young people to do God’s works. She claimed that if she went back to Indonesia she would continue to do all of these works, even though she knew she could be persecuted.
In a report of 14 July 2006, a psychologist, Mr Wolfers, described the applicant’s claims about what she said she had experienced in Indonesia and her reported persistent and repeated traumatic memories, insecurity, depression and anxiety. He found her descriptions to be typical of reports of those suffering from post-traumatic distress syndrome. The report also referred to two questionnaires administered to the applicant which were said to reveal that she was suffering from a very high degree of trauma, as well as depression, anxiety and stress.
The report stated that the applicant’s descriptions and presentation were completely consistent with her claims of persecution and with currently existing PTSD and that her behaviour and emotional reactions during the interviews/assessment sessions were consistent with the truth of her story. Mr Wolfers concluded that his observations of the applicant, together with the interview and testing carried out, led him to diagnose her as suffering from PTSD directly related to her experiences of abduction and torture as a practising Christian while in Indonesia.
The applicant attended a Tribunal hearing on 21 July 2006. The transcript of that hearing is before the Court. It reveals that the applicant described the charitable activities that she undertook in Australia as a part of her Catholic faith. A number of issues were raised by the Tribunal with the applicant as discussed further below. After the hearing the applicant’s adviser provided a further detailed written submission.

The Tribunal decision

In its reasons for decision the Tribunal outlined the material before it and the evidence and submissions provided by and on behalf of the applicant. It accepted that the applicant was ethnic Chinese and a member of the Catholic Church and that she may be characterised as a member of particular social groups being “Chinese Christians in Indonesia” and “single Chinese Christian women in Indonesia”.
However the Tribunal did not accept that the applicant “was subject to harm amounting to persecution in Indonesia by reason of her race and/or religion and/or membership of a particular social group – single Chinese Christian women”.
In making this finding the Tribunal addressed first the applicant’s claims about past experiences in Indonesia of the kind that she had raised both with the first Tribunal and with the Tribunal as reconstituted (that is, excluding the what it described as “significant” additional claim about some fifteen kidnappings over an 18 month period and in and around 1974 whilst engaging in “works of mercy”). It found that with the exception of this claim, the applicant’s claims had been “broadly consistent.” The Tribunal considered that such other claimed experiences could be described as harassment and social ostracism, discrimination in educational activities and restrictions on the applicant’s practice of religion. The Tribunal considered that the applicant had “engaged in a degree of overstatement in recounting some of these incidents”. Noting country information, it did not accept that she was “forced to live the Ramadan” or made to adhere to Muslim religious practices, although it accepted that she may have been required to conform to some religious mores of Muslim culture while a student at a public school in Indonesia and that she may not have been able to eat in public places during the month of Ramadan. It did not accept that she had not been free to practise her Catholic religion on a day to day basis, noting that she had given evidence that she had regularly attended her local Catholic Church and that she was involved in parish activities.
The Tribunal accepted that the applicant had been subject to a number of incidents of harassment and social ostracism, including taunts from other children, that at times she was subjected to sexual gestures and that when walking or travelling in public she may have been at times subject to derision because of her ethnicity. However the Tribunal did not accept that the applicant’s “experience of harassment and social ostracism taken individually or considered collectively amount to persecution as required by s.91R(2)” of the Migration Act 1958 (Cth). It did not accept that these incidents were “systematic or serious”.
The Tribunal did not accept that the applicant had faced discrimination in respect of her education, noting that she had access to the public education system, that she had then attended a private Catholic university and that she had undertaken tertiary studies in Australia, albeit that it accepted that she may have been required at times to adhere to certain mores in a predominantly Muslim country when she attended school. It did not accept that this of itself was discriminatory in intent or that it was persecutory conduct.
The Tribunal then addressed the applicant’s additional claim that around 1974, when she was visiting the sick and poor with local parishioners, she was kidnapped about 15 times by various radical Muslim groups in an 18 month period. The Tribunal accepted that the applicant may have participated in visits to fellow Christians in hospitals organised by her parish church but did not accept the claims of kidnapping. It found significant aspects of the claims of kidnapping and torture to be implausible. It had regard to the fact that the applicant was aged around 17 at that time and that she had engaged in the church activities under the auspices of her local parish church. It found it implausible that, if the group had been kidnapped and tortured as claimed, these activities would have continued on a regular basis, resulting in some 15 kidnapping and torture incidents in the space of 18 months. It had regard to her evidence in this respect but did not accept that the applicant would continue with these visits in such circumstances or her claim that her parents or the parish priest would permit her to continue with the visits because she felt it to be her duty to do so.
Accordingly the Tribunal did not accept that the applicant was kidnapped by Muslim fundamentalists and tortured. It stated that in reaching this finding it had had regard to the psychologist’s report, but that it did “not place weight on this report as establishing the applicant’s claims because [it] considers the assessment to be limited”. The Tribunal observed that the report had been prepared on the basis of one contact with the applicant, consisting of an interview and the administration of two psychological questionnaires. It found that the diagnosis that the applicant was “suffering from PTSD directly related to her experiences of abduction and torture as a practising Christian while in Indonesia. Her reports of these incidents appear to be reliable and truthful” was “inadequately substantiated”.
The Tribunal noted that such claims came to light after what had been described as “close questioning” by the applicant’s adviser in preparation for the scheduled Tribunal hearing. It referred to the fact that it had questioned the applicant as to why she had not made these “significant claims” of kidnapping and torture in her written and/or oral evidence to the first Tribunal. It referred to her various responses: that she had told her previous immigration agent but was “not encouraged to bring” such experiences forth; that lacking legal training she could not be expected to understand the importance or relevance of the claimed kidnappings to her protection visa application; that she was “not given an opportunity to raise it before the first Tribunal”; and that the kidnapping experiences “traumatised her such that she is reticent to and has had difficulty recalling these experiences”. However, while the Tribunal acknowledged that there were reasonable explanations for an applicant to withhold or fail to make a claim initially (see SAAK v Minister for Immigration & Multicultural Affairs [2002] FCA 367) , it stated:
Given the claimed magnitude of these experiences and the claimed impact upon her the Tribunal finds the Applicant’s explanation that she was not aware of their relevance to claim to be a refugee and that her previous migration adviser, although informed by her of these experiences, likewise gave them little importance unconvincing.
As it did not accept that the applicant had been subject to serious harm in the form of kidnapping and torture, the Tribunal did not accept that she would be subject to serious psychological harm on her return to Indonesia by reason of these claimed past experiences.
Nor did the Tribunal consider that the degree of cultural and emotional adjustment that the applicant may experience after the considerable time she had spent in Australia was serious harm or Convention-related harm. It did not accept that the length of time she had been in Australia meant that she would be perceived to be a “supporter of the West” and subject to harm for this reason.

Further, the Tribunal did not accept that there was a real chance the applicant would suffer persecution on her return to Indonesia by reason of her religion and/or ethnicity and/or her membership of the particular social group of single Chinese Christian women in Indonesia, that she would be unable to practise her Catholic religion in Indonesia or that, but for discretion on her part in the practise of her religion, she would be subject to persecution. The Tribunal stated:
The country information from the US Department of State set out above indicates that the Constitution provides for all persons the right to worship according to their religious beliefs and that the Catholic religion is one of the five recognized religions and has official status within the Ministry of Religious Affairs some Christian Holy Days are recognized and there are no restrictions placed on the publication of religious materials or use of religious symbols. Religious programming on TV is unrestricted and Christian programs are offered. The country information set out above also indicates that the law does not discriminate against any religious groups in terms of employment, housing, education or health care.
The Applicant claims that should she return to Indonesia if she was to continue to carry out religious activities such as she has done here in Australia in association with the Legion of Mary and the St Vincent de Paul Society she would be subject to serious harm from Muslims and also the authorities. The Applicant has provided considerable documentary material on the Legion of Mary and as discussed with the Applicant at the hearing the work of the Legion of Mary falls within the umbrella of what is referred to in the Catholic Church as works of mercy. The Tribunal notes and accepts the description of works of mercy (set out above at page 20) from the Catholic Catechism that the exercise of works of mercy is part of the practice of the Catholicism.
The Tribunal accepts that the Applicant may not be able to engage in works of mercy in Indonesia in the same format that she has done so in Australia with the Legion of Mary and the St Vincent do Paul Society by way for example of door knocking. However the Tribunal notes that the Legion of Mary does operate in Indonesia (see page above 21) that a number of Catholic agencies do carry out works of mercy in Indonesia and have managed to do so in collaboration with Muslim organizations, Fr Riley’s Youth Off the Streets is a case in point (see above at page 20). The Tribunal also notes that works of mercy as described in the Catholic Catechism may take a variety of forms and are not strictly codified.
Accordingly the Tribunal does not accept that the Applicant will be unable to engage in works of mercy in Indonesia.
The Tribunal notes that the country information set out above indicates that there are restrictions placed upon religious speeches and distribution of literature which is aimed at converting persons to other faiths and that the government bans proselytizing on the basis that such behaviour can be disruptive. The Tribunal accepts that there would be restrictions on the Applicant attempting to engage in distributing religious materials to for example Muslims as part of her doing works of mercy. However the Tribunal finds that this restriction and any prosecution of the Applicant for breach of this restriction is not persecutory conduct. The Tribunal makes this finding on the basis that the laws restricting proselytizing are laws applied across the board to all religious denominations and that the object of these laws is not the suppression of a particular religion but rather the maintaining of social order. That is the Tribunal finds on the basis of the country information set out above that the law and its enforcement is appropriate and adapted to achieving a legitimate object (Applicant A at 258; Chen Shi Hai at [28]; Appellant S395/2002 v MIMA (2003) 216 CLR 473 at [45].
The Tribunal also finds on the basis of the country information set out above that the Applicant would be able to avail herself of effective state protection in respect to her fear that she may be subject to harassment and or persecution from Muslims. The Tribunal notes the country information set out at page 19 which indicates that there has been an improvement in and a demonstrated willingness on the part the authorities (police) to provide protection to Christians in the event of threats etc from Muslims.
Moreover, on the basis of country information in relation to the treatment of ethnic Chinese in Indonesia, the Tribunal did not accept that the applicant had a well-founded fear of persecution by reason of her ethnicity. Nor did it accept that she had such a fear by reason of a combination of her ethnicity and religion or religion, ethnicity, gender and/ marital status. As for the reasons it had outlined it did not accept that the combination of these factors meant that there was a real chance that the applicant would face Convention-based harm.
Finally the Tribunal did not accept that the applicant would be unable to avail herself of state protection by reason of her race and/or ethnicity, gender and/or marital status, having regard to country information indicating that authorities in Indonesia had demonstrated a willingness to provide protection to ethnic and religious minorities.
The Tribunal concluded that it was not satisfied the applicant had a well-founded fear of persecution for a Convention reason on her return to Indonesia.
The applicant sought review by application filed in this Court on 1 September 2006. She relies on an amended application filed on 16 November 2007. There are two grounds in the amended application.

Section 425(1) issue

The first ground in the amended application is that the Tribunal failed to comply with s.425(1) of the Migration Act. The particulars of this ground are as follows:
(a)     Failure to disclose issues that arose on the application for review, those being
(i)     whether the applicant’s experiences in Indonesia, to the extent that the Tribunal accepted or did not reject them, were persecutory.
(ii)    the accuracy or otherwise of Dr Wolfers’ report
(iii)   whether legal restrictions on proselytizing in Indonesia are,
(a)     laws of general application, and
(b)     appropriate and adapted to meet the requirements of the society.
(iv)    whether the state could protect the applicant from the conduct which she feared.
The applicant contended that the Tribunal failed to comply with s.425(1) of the Migration Act in that a number of issues that affected its decision were not raised either in the delegate’s decision or at the Tribunal hearing. It was contended that such omissions breached the requirements of s.425(1), consistent with what was said by the High Court in SZBEL v Minister for Immigration and Multicultural Affairs and Indigenous Affairs and Another (2006) 231 ALR 592 as the High Court had held that the Tribunal was under an obligation to disclose and permit evidence and argument on issues raised on the review if such issues were not raised in the delegate’s decision. It was submitted that such issues would not necessarily be identified by asking whether the applicant met the definition of refugee. Reliance was placed on what was said by the High Court in SZBEL at [36] as follows:
It is also important to recognise that the invitation to an applicant to appear before the Tribunal to give evidence and make submissions is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant’s favour. Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal’s invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant’s favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision. (emphasis added)
It was contended that the first issue (whether the applicant’s experiences in Indonesia to the extent that the Tribunal accepted or did not reject them were sufficiently serious to amount to persecution) was not identified by the Tribunal as an issue in the proceedings, but that it was such an issue because the applicant had claimed that she may suffer similar experiences in the future. It was also said to be relevant because the efficacy of state protection had to be determined in the context of the particular harm that the applicant feared.
Secondly, it was submitted that the accuracy or otherwise of Mr Wolfers’ report had not been raised with the applicant. The accuracy of an expert’s corroborative report was said to be an issue that arose in relation to the decision, as such a report could, if accepted, be determinative of the applicant’s claims.
As to the issue of whether legal restrictions on proselytizing in Indonesia were laws of general application and appropriate and adapted to meet the requirements of society, it was contended that this issue went to the heart of the question to be determined by the Tribunal, that being whether the applicant had a well-founded fear of persecution.
Finally it was contended that the Tribunal had to, but did not, raise with the applicant whether the State could protect her from the conduct which she feared. It was contended that the Tribunal’s failure to raise these issues at the hearing was a failure to exercise its jurisdiction according to law.
Section 425(1) of the Migration is as follows:
The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
In SZBEL the High Court considered whether a Tribunal had denied an appellant procedural fairness in failing to put him on notice at the hearing that his account of three specific aspects of his claims about past events (which had not been put in issue by the delegate’s decision) were in issue, in circumstances where the Tribunal found that such key aspects of his claims were implausible and lacked credibility.
The Court stated (at [21]) that the question was whether the “issues” to which the Tribunal’s “reasoning processes were directed had been adequately notified to the applicant”. After reiterating that the question was “about the Tribunal’s process, not its actual decision” (see Attorney-General for the State of New South Wales v Quin (1990) 170 CLR at 35 – 36 per Brennan J and SZBEL at [25]), the Court referred to the importance of the statutory framework and the facts and circumstances of the particular case in considering what procedural fairness required (at [26] – [30]). Their Honours referred with approval (at [32]) to the statement by the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590 – 591:
It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity to be heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material. (Emphasis added)
It was in that context that the High Court stated that the Migration Act defined the nature of the opportunity to be heard that had to be given to an applicant by reference to s.425(1) and stressed the importance of the reference to “the issues arising in relation to the decision under review” (at [33]).
As the applicant contended, such issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa (SZBEL at [34] and [39] – [40]. It is relevant to have regard to the fact that the Tribunal is reviewing a particular decision for which the delegate of the Minister will have given reasons. Hence, while the Tribunal is not confined to the issues considered by the delegate:
… if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. (SZBEL at [35])
It was contended for the applicant that this was not a case in which what was apparent from the delegate’s decision or the Tribunal’s statements or questions “sufficiently” indicated to the applicant that everything she said in support of her application was in issue. Rather it was submitted that, as the High Court went on to discuss in SZBEL at [47], there were specific aspects of the application that the Tribunal considered “may be important to the decision and may be open to doubt.” Hence it was contended that “the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted”.
It was said that wherever a question of fact arose on the claims or the evidence before the Tribunal that went directly to whether the applicant had a well-founded fear of persecution such matter had to be disclosed to the applicant. It was submitted that the issues arising in relation to the decision under review were not limited to any particular form of evidence or any particular form of fact.
It was acknowledged that in SZBEL the issues in question were specifically about the appellant’s account of his claims, but submitted that there was no reason to limit the High Court’s statement of principle to aspects of the applicant’s evidence given by the applicant him or herself. Rather it was said that the principle could extend to issues relating to corroborative evidence (such as the psychologist’s report) and issues relating to the state of the law or reasons for the law in the country of origin (such as whether the law has general application and whether it was appropriate and adapted to meet the requirements of the society). It was submitted that these matters were just as much “issues” or that they could raise “issues” in the same manner as issues could be raised by an applicant’s direct evidence. In this instance there were said to be aspects of the case which the Tribunal did not inform the applicant about which arose on the case and could have been dispositive of it and hence that these matters should have been disclosed to the applicant pursuant to s.425(1).
It was conceded for the applicant that, as counsel for the first respondent submitted, s.425 does not require the Tribunal to disclose its reasoning. Such reasoning would extend to the Tribunal thought processes or preliminary conclusions. As the High Court stated in SZBEL at [47] – [48]:
… It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is laying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.
Secondly, as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369,
“the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.”
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
Nor does s.425 require the Tribunal to inform an applicant about the significance of its questions or the ultimate issue to which such questions go. (Minister for Immigration & Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 at [88] – [89]).
The first suggested “issue” is whether the applicant’s experiences in Indonesia (that were accepted or not rejected) were sufficiently serious to amount to persecution within s.91R of the Act. However, the applicant’s contention would require the Tribunal to disclose its preliminary conclusions. Section 425 does not impose such an obligation. Nor was the Tribunal obliged to inform the applicant of the significance of its questions at the hearing about her claimed experiences in Indonesia or that such questions may go to the issue of whether it accepted that the applicant’s past experiences constituted persecution (Applicant A125 of 2003).
Whether or not conduct amounted to serious harm was ultimately a question of the application of s.91R of the Act to the particular facts. SZBEL was not concerned with the Tribunal disclosing possible legal assessments or conclusions to an applicant. Given that the Tribunal is not obliged to disclose preliminary factual conclusions or preliminary reasoning, it is clear that it is not obliged to disclose legal conclusions or preliminary conclusions, although the Tribunal member in this case did in fact indicate to the applicant that she had not formulated strict views one way or the other.
In any event if, contrary to my view, such matters were within s.425 the applicant was put on notice of and had an opportunity to address such matters in the second Tribunal hearing. While the question of whether the applicant’s past experiences in Indonesia (to the extent that the Tribunal accepted or did not reject them) were sufficiently serious to amount to persecution was not determinative in the delegate’s decision, the issue of whether the applicant’s past experiences or future inability to proselytize was sufficiently serious to amount to persecution was discussed at the Tribunal hearing (and, indeed, her past experiences (other than the kidnapping claims) had also been addressed in the decision of the first Tribunal which found that such behaviour did not constitute persecution within s.91R of the Act).
In its introductory explanation at the hearing, the Tribunal as reconstituted put to the applicant the elements of the definition of refugee including the fact that “normally, things that are characterised as harassment or discrimination are not classified as being persecution because of the idea that persecution means to be, is at a higher bar of serious harm” (transcript p.5). The Tribunal also confirmed with the applicant that, having been to an earlier hearing (with the Tribunal as originally constituted), she had an understanding of the criteria to be a refugee (transcript p.2).
At the conclusion of the hearing the Tribunal spelled out at some length the “reservations” that it had in relation to the case, in particular in relation to the issue of whether the applicant’s experiences in Indonesia that were not rejected were sufficiently serious to amount to persecution. The Tribunal did not simply bring to the applicant’s attention the fact that it was necessary for there to be a well-founded fear of “serious harm” and that the serious harm needed to be for one of the Convention reasons, reiterated in the Tribunal’s explanation of the criteria in the Refugees Convention. In particular it stated at Q 93 (transcript page 27):
…as I explained … there are a couple of issues. One is, I can accept that if you look at the information on Indonesia that Christians and also ethnic Chinese persons, there is a history of discrimination and harassment and one of the issues is whether that discrimination and/or harassment amounts to persecution. O.K. So as you will be aware from probably the first Tribunal decision and also from the delegate’s decision, the view was more that well, yes, there’s discrimination and harassment and I think also in your first submissions a lot of the emphasis you placed was on denial of educational opportunities, as you might call it. So that sort of didn’t cross the bar, if you like, it didn’t make it to the bar of persecution. So that’s one issue in my line that I need to consider.

Moreover, in raising reservations with the applicant about the issues before it the Tribunal did not simply address information in Indonesia in relation to Christians and ethnic Chinese people generally. It raised the issue of whether there was a history of discrimination and harassment of the applicant. It indicated that her claims of denial of educational opportunities may not constitute persecution. The Tribunal went on to say (transcript Q93 pages 27-28):
So I mean obviously that’s where your claims to have experienced kidnappings becomes important as to what you suffered wasn’t simply harassment but something more than harassment, serious harm. And I haven’t yet made up my mind as to whether or not I accept those claims and I tried to, that’s why I asked you questions about, you know, why they didn’t come, why they weren’t evident in anything earlier before the Tribunal. But you have talked about them in the hearing so I need to think about whether in fact I accept that. So that’s one of the issues I’m dealing with.
This explanation was not limited to the incidents that were part of the kidnapping claim rejected by the Tribunal and, contrary to the applicant’s contentions, the Tribunal was not simply referring to the general situation in Indonesia for Christians and ethnic Chinese. It clearly raised the issue of whether the particular harassment and discrimination and denial of educational opportunities that the applicant claimed she experienced (which it did not reject) amounted to persecution. The Tribunal also explained generally what it needed to determine in relation to whether restrictions placed on the applicant’s practice of religion amounted to persecution.
In that context it stated (at Q.96 transcript pages 29-30):
So as I said, I can accept that there’s a degree of harassment perhaps or discrimination, so I will be considering obviously whether or not I accept your experiences of the kidnappings and those experiences and whether I consider that on your returning to Indonesia you face harm that is persecutory harm.
The Tribunal clearly brought to the attention of the applicant that it had specific reservations in such a way that made it clear that the determinative issues were not limited to those that had been considered by the delegate or by the first Tribunal (which did not have the claims of kidnapping before it). As counsel for the first respondent contended, it is apparent that the Tribunal member went out of her way to tell the applicant about the concerns that she had, in contrast to what occurred in the Tribunal hearing in SZBEL.
Moreover, after a discussion of religion and the Tribunal’s need to consider whether the applicant could practise as a Catholic in Indonesia, what that practice involved and whether restrictions on that practice amounted to persecution, the Tribunal reiterated “So as I said, I can accept that there’s a degree of harassment perhaps or discrimination, so I will be considering obviously whether or not I accept your experiences of the kidnappings and those experiences and whether I consider that on your return to Indonesia you face harm that is persecutory harm” (transcript p.30).
Finally, after referring to the need to look at the supporting documentation, the Tribunal indicated (transcript p.30) “But I think maybe from the questions I’ve asked in the hearing and the comments I’ve just made you’ve probably got indication of where I’m thinking, so the issue of serious harm in terms of the practice of religion is the issue”
Thus, the Tribunal sufficiently put to the applicant the question of whether her past experiences constituted persecution (that is to say, serious harm) in a manner that indicated that this was in issue. Hence I am satisfied that the Tribunal sufficiently raised the question of whether the past conduct complained of by the applicant and not rejected by the Tribunal amounted to serious harm constituting persecution in such a way as to meet any s.425 obligation in that respect.
Thus if such matter is an “issue” within s.425 and if the applicant had to be put on notice of such matters during the second hearing, no failure to comply with s.425(1) is established in the manner contended for in the first particular.
The second particular relates to a claimed failure to disclose “the accuracy or otherwise” of the report of Mr. Wolfers, the psychologist. Insofar as this contention would have required the Tribunal to disclose its preliminary conclusions, s.425 does not impose such an obligation (see SZBEL at [48]). Indeed, the Tribunal may well not have formed any conclusions, even on a preliminary basis, during the hearing.
Moreover it is not entirely accurate to say that the Tribunal rejected the report. Rather, the Tribunal did not place weight on the report as establishing the applicant’s claims. The issue for the Tribunal was not simply whether the applicant was depressed at the date of the hearing. Rather the report was addressed as possible corroboration of her claims to have been kidnapped and tortured 30 years earlier and to be suffering from psychological impairment as a result of those experiences. It was open to the Tribunal to make the point that the report was prepared on the basis of one contact with the applicant and to find that the view of the author of the report (that the applicant was suffering from traumatic stress disorder directly related to her experiences of abduction and torture which account appeared to be reliable and truthful) was not adequately substantiated.
In other words the Tribunal considered the evidence in the report. Rather than rejecting the report, the Tribunal regarded it as not establishing what the applicant put to the Tribunal, that is, that she had been kidnapped and tortured 30 years earlier in Indonesia. In the context of s.425 the “issue” was not the report as such, but rather related to the applicant’s claims about having been tortured and kidnapped. As conceded for the applicant, the Tribunal raised and expressed some scepticism about that claim to the applicant, given the time at which it was raised. Thus it met its obligation to put specific aspects of the applicant’s account that may be important to the decision and may be open to doubt to the applicant consistent with SZBEL at [47] – [48]. As the High Court stated in SZBEL at [48] the Tribunal was not obliged to give the applicant a “running commentary” on what it thought about the evidence given to it. While this statement was made in relation to principles of procedural fairness, such an approach would also apply to the Tribunal’s obligation under s.425(1) of the Migration Act. The issues to which the Tribunal’s reasoning processes were directed (SZBEL at [21]) being the issues arising in relation to the decision under review were adequately notified to the applicant.
In any event, as counsel for the first respondent pointed out, Mr Wolfers’ report was discussed in the Tribunal hearing (transcript pp 24 to 26). Nothing said then or elsewhere in the hearing indicated that it would necessarily be accepted in full or that weight would be placed on it as establishing the applicant’s claims about past events in Indonesia. Indeed, the Tribunal raised with the applicant the fact that, despite her familiarity with available services through her work with the Church, she had not sought any prior treatment from a psychologist or psychiatrist, despite her claim to have experienced symptoms for a very long time (Questions 86 to 91, transcript pages 24 to 26). The Tribunal was not obliged to identify the significance of these questions or the ultimate issue to which they went (S125 of 2003 at [88] – [89]).
There was no failure to comply with s.425 in these circumstances in relation to the matter in the second particular.
The third particular relates to whether legal restrictions on proselytizing in Indonesia were laws of general application and appropriate and adapted to requirements of the society. As discussed above, the Tribunal was not required to disclose its preliminary conclusions on such a matter of legal judgment. The Tribunal’s legal conclusion on the facts is not a matter that has to be raised with an applicant under s.425(1).
Finally, the suggestion in the fourth particular that the Tribunal was obliged by s.425(1) to discuss with the applicant whether state protection was available is not made out. Again, such a contention suggests that the Tribunal was required to disclose its preliminary reasoning by s.425(1). In any event, the issue of state protection was addressed by the delegate as a determinative issue in relation to ethnic Chinese and Catholics (albeit generally and not in relation to the later claims about specific past events of persecution and the applicant’s intention to continue to engage in acts of mercy). The decision of the first Tribunal also addressed the issue of state protection in its reasons for decision in relation to the ethnicity and religion of the applicant in light of changed circumstances in Indonesia.
Hence if, contrary to my view, the applicant did have to be put on notice of such matters, the applicant was sufficiently on notice of these issues and could not assume that they would be decided in her favour. No failure to comply with section 425(1) has been established.

Whether the Tribunal failed to ask a required question

The second ground in the amended application is that the Tribunal failed to ask a question that in the context of this application it was required to ask to complete the exercise of its jurisdiction.
The particulars of this ground identify the question as “Whether the restrictions that may be imposed on the applicant’s intended acts of mercy in Indonesia impinge on her freedom of religion to the extent that such restrictions would be persecutory”.
Counsel for the applicant pointed out that she had given evidence that performing acts or “works of mercy” in a variety of ways was central to her belief and practice of Catholicism. It was acknowledged that the Tribunal had gone some way towards addressing the question it had posed in the Tribunal hearing as a matter that it needed to consider, that being the extent to which an inability to carry out works of mercy in the way that the applicant would like was a restriction on her ability to practise her religion. However, the Tribunal’s response, which was described as being to the effect that the applicant would have some opportunity to engage in some acts of mercy, was said to be an inadequate consideration of the issue. It was submitted that the Tribunal had failed to examine the extent to which the applicant would be restricted from engaging in acts of mercy, despite the fact that what she would not be able to do was central to whether such restrictions impinged on her ability to practise her religion. It was contended that simply to say that the applicant could engage in works of mercy in Indonesia did not fully answer the question and that the Tribunal had to go on to ask itself to what extent would there be restrictions and, following from that, whether such restrictions would be persecutory.
In support of this contention, counsel for the applicant took the Court through the claims made by the applicant, the delegate’s decision and the transcript of the second Tribunal hearing. The transcript of the first Tribunal hearing was not before the Court in its entirety, although an extract is contained in the court book.
In particular counsel for the applicant pointed out that the reasons for rejection of the applicant’s claim for a protection visa by the delegate of the first respondent were essentially that circumstances had changed in Indonesia following change in the administration of the country, in that racially motivated attacks had dropped sharply and there were fewer reports of specifically anti-Chinese violence and that there had been a significant attempt by the government to address and improve the protection of all Indonesians including Catholics, Christians and other minorities. The delegate also suggested that the applicant could relocate to another part of Indonesia.
It was said to be relevant that after the first Tribunal decision was remitted for reconsideration, the applicant had expanded on the claims she had made previously. In particular she made the detailed claims of kidnapping and torture in Indonesia at the hands of Muslim Indonesians, which she claimed forced her to flee the country and provided a psychologist’s report about the impact of the claimed experiences. She had also reiterated that in Indonesia she had “helped to share [her] Christian faith amongst the people, especially when they needed to understand what the word ‘God’ meant”, stated that she had joined the Legion of Mary and St Vincent de Paul groups in Australia and that she had become involved in many of their activities, including the work of evangelising, visiting the sick and those in psychiatric units and (approximately once a month) conducting door-to-door visits to speak to people about their faith. She had elaborated on what she referred to as “acts of mercy” as part of her Christian vocation, stating in her statutory declaration that if she had to go back to Indonesia “I will continuing doing all of these good works even though I know I could be persecuted, because I believe it is the right thing to do. I do not want to have fear to do it because what I do is not a criminal act, but rather sharing the Good News, helping the needy and leading the wondering [sic] souls who need guidance”.
The attention of the Court was also drawn to particular aspects of the transcript of the hearing of the Tribunal as reconstituted, in particular to the fact that in response to questioning the applicant had outlined her religious activities in Australia for the Legion of Mary and St Vincent de Paul. When asked about her activities with the church in Indonesia at the time at which she claimed there had been 15 incidents of kidnapping and whether she engaged in such activities as part of a group with the Catholic Church, she had answered that she had done so with a group called the “Legion of Mary” although “They couldn’t call it that, and so we couldn’t give that name when we went to the hospital, we couldn’t say that we were from the Legion of Mary. We would just say that we had come to see friends, because the hospitals we visited were normally state hospitals” (transcript Q and A 52 page 15).
It was also pointed out that response to a question (Q 62 transcript p 17) as to how the parish priest and the bishop had reacted to the instances of kidnapping and torture, the applicant had indicated that “their reaction was that we had to think it over but it was our duty and we couldn’t see or just look on if ill people were being abandoned”. When asked whether this meant a duty “assigned to you by the Catholic Church or was it a duty that you just felt in conscience?” (transcript page 63) the applicant indicated: “Well of course that was mostly my own conscience that the obligation came from. The church in Australia says that the work that you do is as a good Christian so you do such things as a good Christian. In Indonesia we also have to think about other matters such as what I was talking about before, but the church cannot say for sure that you have to do it or must not do it. The church in Indonesia says that you have to do your duties as a good Catholic and one of those duties is as I was talking about before. So whether we do it or we don’t do it, that’s really to us, that, well, that’s really up to us. Imagine that if we as good Catholics and knew of someone who needed our help and we just shut our eyes to that well, we couldn’t do that”.
When speaking of the future the applicant said to the Tribunal (transcript page 22): “I want to carry out religious activities but there is the risk that I will then experience the torture which I experienced in the past. I just like to add something if I may. Also I wouldn’t be able to repress my desire to carry out religious activities, particularly as I have deepened my knowledge during my time in Australia”.
In response to a question (Q 80) as to what she meant, the applicant stated “Religious activities are to help those people who need help, for instance, going along and seeing sick people in the hospitals. And secondly, if they were to ask about religious matters, particularly about the Catholic religion, then I would have to answer because it’s my duty, I can’t just keep quiet about it and I don’t want to become like a chameleon.”
Moreover when asked (Q 84) “Are there other reasons why you fear harm on going back to Indonesia” the applicant replied “Yes, of course, because it is deeply rooted in the culture and that they torture people who are not Muslims, it’s deeply rooted. And if I want to visit door to door as I do here, go from door to door then we have to see people, for instance, who are from the same parish, and it’s more dangerous because they also don’t want us to go door to door. You can’t just visit, I mean, you have to knock on each door and if the door happens to be one of theirs, that is the Muslim fanatics or whatever they call themselves, then I can’t avoid that. So the objective is not to spread the religion but just to say how are you and do you need help from us”.
It was observed that the Tribunal had discussed the psychologist’s report with the applicant and had also questioned her as to why she had not gone to a psychologist before the visit to Mr. Wolfers if she had been experiencing symptoms, given that she was involved in Catholic charitable organisations with access to counselling services.
Relevantly, it was submitted for the applicant that the evidence of what had occurred in the Tribunal hearing made it clear not only that the applicant had claimed that she had been persecuted in Indonesia and that she had suffered certain treatment, but also that she had a religious calling to perform acts of mercy in ways that she described and that she feared returning to Indonesia because of a repetition of what she had experienced previously and also because she would not be able to conduct herself in the way that she believed was necessary and as she was called on to act by her religion. Hence it was submitted that the Tribunal had to address the “works of mercy” claims as contended under ground 1.
However, as submitted for the first respondent, it has not been established that the Tribunal erred in the manner contended. The Tribunal accepted that the practice of works of mercy was part of the practice of the applicant’s Catholicism but did not accept that the applicant would be unable to perform works of mercy in Indonesia. It considered her claim that if she was to carry out religious activities “as she had done here in Australia” she would be subject to serious harm from Muslims and the authorities. While it accepted that the applicant may not be able to engage in works of mercy in Indonesia “in the same format” as she had done in Australia (“by way for example of doorknocking”), importantly it had regard to a number of factors which, reading the Tribunal decision fairly and as a whole, clearly went to the issue of whether any restriction on her intended acts of mercy impinged on her freedom of religion to the extend that such restrictions would be persecutory.
Thus, it recognised and accepted that works of mercy were as described in material provided by the applicant and were part of the practice of Catholicism. It also accepted that the work of the Legion of Mary (to which the applicant belonged) fell “within the umbrella” of what the Catholic Church referred to as “works of mercy”. As indicated, it accepted that the applicant may not be able to engage in works of mercy in the same format as she had done in Australia. Importantly, however, it observed that works of mercy “as described in the Catholic Catechism may take a variety of forms and are not strictly codified” and that the Legion of Mary operated in Indonesia. Further, it referred to evidence that a number of Catholic agencies “do carry out works of mercy in Indonesia and have managed to do so in collaboration with Muslim organisations”. On this basis it did not accept that the applicant would be unable to engage in works of mercy in Indonesia. These findings address the impact of restrictions on the “format” of possible works of mercy on the applicant’s religious freedom.

Moreover, the Tribunal addressed the impact of legal restrictions on the form of works of mercy in Indonesia. It accepted that the law restricted religious speeches, distribution of literature aimed at converting people to other faiths and that there was a ban on proselytising as disruptive. In consequence it accepted that “there would be restrictions on the applicant attempting to engage in distributing religious materials to for example Muslims, as part of her doing works of mercy.” However, it addressed the impact of such restriction, finding that it (and any prosecution of the applicant for breach of the law) “would not be persecutory conduct.” In making that finding it had regard to the fact that the laws restricting proselytising ‘are laws applied across the board to all religious denominations and that the object of these laws is not the suppression of a particular religion but rather the maintaining of social order”. On the country information before it the Tribunal found that the law and its enforcement was “appropriate and adapted to achieving a legitimate object” (see Applicant A and Another v Minister for Immigration and Ethnic Affairs and Another (1997) 190 CLR 225), in that way addressing the issue of whether such restrictions on the applicant’s intended acts of mercy were persecutory within the Refugees Convention.
Finally, the Tribunal also addressed the applicant’s claim to fear harm from Muslims if she continued to engage in works of mercy. In that respect it found she would be able to avail herself of effective state protection.
Hence, the Tribunal considered whether the restrictions that would be imposed on the applicant’s ability to engage in intended acts of mercy in Indonesia would be persecutory. It was implicit in the Tribunal’s findings that the applicant could practise her religion in Indonesia and engage in Catholic religious activities in Indonesia including works of mercy, albeit not in precisely the same format as she had done in Australia.
The Tribunal was clearly of the view that any restriction on the applicant’s ability to undertake works of mercy in general was not persecutory of her, albeit that she may have to undertake such works in a different form. She could engage in acts of mercy as well as practise her religion in Indonesia. These findings must be seen in light of the information before the Tribunal that works of mercy may take a variety of forms and are not strictly codified. In these circumstances it is apparent that the Tribunal was not satisfied that having to engage in the works of mercy in a different format amounted to serious harm. It considered the impact of restrictions. It has not been established that it failed to ask a required question.
In relation to the issue that there may be a particular practice that the applicant had to avoid (that is, proselytizing to Muslims), the Tribunal dealt with that in finding that laws against proselytizing were laws of general application, so that a breach of those laws would not be for reason of the applicant’s religion and prosecution of her under those laws would not fall within the Refugees Convention. It cannot be said that the Tribunal failed to consider the issue or to ask the question as to whether restrictions on the applicant’s ability to engage in works of mercy was persecutory of her in a manner constituting jurisdictional error.
As no jurisdictional error has been established the application must be dismissed.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 1 February 2008