SZDTM v Minister for Immigration

Case •

[2005] FMCA 728

•

9 June 2005

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDTM v MINISTER FOR IMMIGRATION [2005] FMCA 728
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.51A, 91R, 91X, 422B, 424, 424A, 425, 474, 477, Division 3 of Part 2, Division 7 of Part 4
Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth)

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26

Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982
NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328

NABT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 179
Minister for Immigration & Multicultural Affairs v Cho [1999] FCA 946
Thayananthan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1054
Applicant S454/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1136
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 198 ALR 293
Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437
NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121
WABZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 30
Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
Applicant S v Minister for Immigration & Multicultural Affairs (2004) 206 ALR 242
Moradian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1590
NAQF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 781
WAJR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 106

Applicant: SZDTM
Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
File No: SYG1717 of 2004
Delivered on: 9 June 2005
Delivered at: Sydney
Hearing date: 24 February 2005
Judgment of: Lloyd-Jones FM

REPRESENTATION

Solicitors for the Applicant: Mr N Dobbie of Parish Patience Immigration Lawyers
Counsel for the Respondent: Dr M Allars
Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

  1. The application be dismissed.

  2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1717 of 2004

SZDTM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

  1. These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 4 June 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 1 July 2003 and handed down on 25 July 2003, affirming the decision of the delegate of the respondent (“the delegate”) made on 28 March 2002 to refuse to grant the applicant a protection (Class XA) visa.

Background

  1. The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZDTM”.

  2. The applicant, who claims to be a citizen of Indonesia, arrived in Australia on 22 June 1982. On 13 February 2001 she lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.3-26) (“CB”). On 28 March 2002 the delegate refused to grant a protection visa (CB pp.237-245) and on


    8 August 2002 the applicant lodged an application with the Tribunal for a review of the delegate’s decision (CB pp.255-259).

  3. The applicant claimed she was born in December 1956 and was the only child of now deceased parents.  She stated she feared persecution because of her race and religion.  The applicant claimed she was unhappy about persecution to which she was subjected to many years ago as a student.  As a middle aged woman of Christian religion and Chinese ethnicity, the applicant claimed she was in a particular social minority group and had been and continues to be targeted. The applicant claimed she feared persecution from native Indonesians.  She stated that before her parents died the family was constantly persecuted because of their race and religion and they were not free to practise their religion due to fears of discrimination and harassment.  The applicant stated she was persecuted due to her religion at school and suffered severe punishment because of her race.  She also stated she was discriminated against when applying to study at University and a number of other institutions (CB p.429).

The Tribunal’s findings and reasons

  1. Dr Allars of Counsel, appearing for the respondent, filed written submissions prior to the hearing containing a convenient summary of the Tribunal’s findings which I have adopted as follows:

    a)The Tribunal accepted that:

    i)the applicant entered Australia on a student visa on 22 June 1982 and remained in Australia when that visa expired (CB p.429);

    ii)while in Indonesia the applicant suffered discrimination at school (CB p.439); and

    iii)while in Indonesia the applicant suffered discrimination in the form of being spat upon and having stones and tomatoes thrown at her and she was verbally abused because she attended church (CB p.430).

    b)The Tribunal was not satisfied that the applicant had a well founded fear of persecution because:

    i)the mistreatment she suffered because she attended church did not constitute persecution within s.91R of the Act (CB pp.439-440);

    ii)

    country information indicated that the Indonesian government promotes mutual tolerance and harmony amongst recognised religions, including Christianity


    (CB p.440);

    iii)country information indicated that since the applicant left Indonesia in 1982 the Indonesian government has withdrawn racially discriminatory policies and the situation is continuing to improve for ethnic minorities (CB p.440);

    iv)attacks against ethnic Chinese are random and sporadic in nature and there have been virtually no reports of anti-Chinese violence in Indonesia since 1999 (CB p.441);

    v)

    there was only a remote chance that the applicant would have her property confiscated or suffer physical harm in civil unrest relating to ethnic Chinese Indonesians


    (CB p.441);

    vi)it was not government policy in Indonesia to allow such attacks to occur and the government extended the same degree of protection to ethnic Chinese, and people who were actually or imputed to be of Christian religion, as to other Indonesians (CB pp.441-442).

    c)The Tribunal concluded that the applicant was not a person to whom Australia has protection obligations (CB p.442).

Application for review of the Tribunal’s decision

  1. On 4 June 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth) setting out the following grounds:

    1.The Refugee Review Tribunal (“the RRT”) constructively failed to exercise its jurisdiction or acted in excess of its jurisdiction under the Act.

    A.There is actual bias or a reasonable apprehension of bias

    Particulars:

    (a)That the RRT made it clear that the hearing should only take one hour (transcript at p3)

    (b)That the RRT did not allow the applicant to give her evidence freely:

    (i)     See transcript at p8 (Q16-17); p10 (Q26-27), where the following exchanges took place:

    A.     I think I already give to my adviser and the latest one I also give the letters what is happening to Indonesia, still have the riot and the bombing to get rid of the foreigner and of course also the outsider.  I see the Indonesian cities but I don’t think that they accept me as an Indonesian, I’m the outsider.

    Q.     [Applicant] I think I have enough information from what you’ve told me to be able to make a decision on your application but before we conclude the hearing is there anything else that you’d like to tell me that you haven’t already relating to your claims?

    A.     Yes.  I’m sorry, I have to tell you my story rather than answering your question.  Is it okay with you sir?

    Q.     No.  The purpose of the hearing today is not for you to tell me again what you’ve already told the department and the tribunal.  The purpose of the hearing – because I’ve read the documents very carefully.  The purpose of the hearing is for you to answer my questions …

    A.     I’m sorry sir.

    The above exchange reveals that the RRT had already predetermined the application, or there is a reasonable apprehension of same, given the RRT’s line of questioning did not actually allow the applicant to remotely touch on her claims before the RRT stated at Q26 that it had enough information to make a decision.  That statement came after the RRT had asked her about her education and after generally informing her of information adverse to her claims.  This was compounded when the applicant sought to tell her story and not just answer the RRT’s questions.  In response, the RRT cut her off with an emphatic ‘No’.

    B.The RRT failed to give the applicant the hearing required by law.

    Particulars:

    (i)The same particulars for ground A are repeated.

    C.The RRT misinterpreted the applicable law

    Particulars:

    (i)The RRT misinterpreted the expression ‘for reasons of’ as set out in the Refugees Convention when considering why ethnic Chinese in Indonesia were targeted. The RRT should have first determined whether or not they had been targeted for criminal activity because of their ethnicity and or because of their religion. Rather, the RRT found that because the acts inflicted upon ethnic Chinese were criminal acts, there was no Refugee Convention nexus. As such, it could not be satisfied that the applicant was not a person to whom Australia owes protection obligations for the purposes of the Act.

Notice of objection to competency

  1. The solicitors acting for the respondent filed a Notice of Objection to Competency on 22 September 2004 in the following terms:

    The respondent objects to the jurisdiction of this Court to try this application for an order of review on the following grounds:

    1.Section 477(1A) of the Migration Act 1958 (the Act) provides that an application to the Federal Magistrates Court under section 483A of the Act, in respect of a privative clause decision for which its jurisdiction is not excluded by section 476, must be made to the [Court] within 28 days of the notification of the decision.

    2.The decision is a ‘privative clause decision’ as that term is defined in s474(2) of the Act.

    3.The application for an order of review to the Federal Magistrates Court in relation to the decision is made under section 483A of the Act.

    4.The decision was notified to the applicant on or about


    25 July 2003.

    5.The application to the Federal Magistrates Court was made on 4 June 2004 and is therefore not within 28 days of the applicant receiving notification of the decision.

The law

  1. The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“Plaintiff S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“Applicant S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith:  Plaintiff S157/2002 at [76] and Applicant S134/2002 at [15].

  2. An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power:  Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.

Applicant’s submissions

  1. Mr N Dobbie, Solicitor appearing for the applicant, filed written submissions prior to the hearing which contained the following contentions:

    a)In respect of ground 1A, the allegation of actual bias was not pressed however the ground of apprehension of bias was maintained.  The exchanges between the Tribunal member and the applicant during the hearing were noted in the applicant’s application above in paragraph 6.  The hearing on 28 June 2003 commenced at 2.15 pm (transcript p1) and ended at 2.38pm (transcript p12).  The transcript should be read in context with the Tribunal’s statement to the applicant that it expected the hearing would last approximately one hour.  The exchanges as cited between the applicant and the Tribunal raised an apprehension of bias for the following reasons, or a combination thereof:

    i)the hearing took only 23 minutes;

    ii)the refusal of the Tribunal to allow the applicant to tell her story, by flatly refusing to let her do so, and by limiting her responses to questions about concerns that it had;

    iii)the Tribunal informed the applicant that it had enough information from what the applicant had told it to make a decision.  However, the transcript revealed that, at the time the Tribunal so informed the applicant, the applicant had not had the opportunity to give evidence and to present arguments.  Furthermore, when the applicant attempted to give such evidence and present arguments, she was prevented from doing so.

    b)The test to be applied in cases where an apprehension of bias is raised is set out in Refugee Review Tribunal; Ex parte H (“Ex parte H”) at [31]; NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (“NADH”) at [14]:

    “The general test for apprehended bias is whether the relevant circumstances are such that a fair-minded and informed person might reasonably apprehend that the decision-maker might not bring or have brought an impartial mind to bear on the decision:  Webb v R (1994) 181 CLR 41, 70-71; Laws at 90-92; Ebner at 343-45; and Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, 434-35 at [27]-[32].”

    c)By itself the short period of time for the hearing does not show an apprehension of bias.  However, when considered in the light of the exchange that took place (as noted in paragraph 6 above), the apprehension was raised that the Tribunal was more concerned about disposing of the matter quickly, rather than allowing the applicant the opportunity to give evidence and to present arguments.  This was further supported by Tribunal’s estimation of a one hour hearing.  Furthermore, the apprehension was also made out that after the Tribunal stated that it had enough information to make a decision, anything that the applicant could have said after that comment would have fallen on deaf ears, especially as the applicant had not been able to give evidence and present arguments.  This apprehension was amplified by the Tribunal’s subsequent refusal to let the applicant tell her story and by restricting her to responding to the Tribunal’s concerns.

    d)In the present case, an informed person would reasonably apprehend that the decision-maker had not brought an impartial mind to bear on the decision, given that the Tribunal refused to let the applicant tell her story, that it limited her to responding only to questions about concerns it had and given its statement that the hearing would take approximately one hour.  It was important to note that after the Tribunal effectively chastised the applicant for wanting to tell her story and after telling her that she was only to respond to its questions about concerns it had, the applicant did not give further evidence or arguments regarding her claim for protection.  The decision of the Tribunal was infected with jurisdictional error and the relief sought should be granted.

    e)In respect of ground 1B, it was noted that the manner in which the Tribunal conducted the hearing was such that the applicant was not given the hearing prescribed under the Act. Section 425 of the Act, at the relevant time, stated:

    (1)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.

    (2)Subsection (1) does not apply if:

    (a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

    (b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

    (c)subsection 424C(1) applies to the applicant.

    (3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

    f)The exchanges between the Tribunal member and the applicant (paragraph 6 above) showed the applicant was not given the opportunity to give evidence and arguments.  The Tribunal’s emphatic refusal to allow the applicant to tell her story, and its decision to limit her responses to questions regarding concerns that the Tribunal had, was also overbearing.  The Tribunal failed to give the applicant the hearing required by law.  Such a failure is a failure going to jurisdiction and not merely a procedural irregularity:  NABT v Minister for Immigration & Multicultural & Indigenous Affairs (“NABT”) at [20]-[22]; Minister for Immigration & Multicultural Affairs v Cho (“Cho”) per Sackville J at [69]-[70]. These cases illustrate that s.425(1)(a) is primarily directed to the requirement that the Tribunal ensures that the applicant not only knows of his or her entitlement to give evidence (see s.426(1)(a)), but receives adequate notice of the hearing and is not unfairly impeded by the Tribunal from taking advantage of the statutory entitlement. Ordinarily, the Tribunal complies with s.425(1)(a) if the applicant receives timely notification of his or her statutory entitlement and of the hearing at which that entitlement may be exercised. If the applicant does not appear, otherwise than through reasons beyond his or her control and of which the Tribunal is aware, there will generally be no breach of s.425(1)(a). If the applicant does appear in response to the timely notification and gives evidence before the Tribunal, there will likewise generally be no breach of s.425(1)(a).

    g)

    It does not necessarily follow that the effect of s.425(1)(a) is exhausted once the Tribunal actually commences to hear the applicant’s evidence, with adequate notice of the hearing having been given. There may be circumstances – although perhaps rare – where the Tribunal conducts the hearing itself in a manner which denies the applicant the genuine opportunity contemplated by s.425(1)(a). To take a hypothetical example, the Tribunal, having given the applicant timely notification of the statutory entitlement and the hearing, might inform the applicant at the hearing itself that he or she will not be permitted to give evidence on a particular claim within the applicant’s own knowledge.


    If the Tribunal were to reject the application on the ground that it had not been satisfied of the particular claim, it would not be difficult to conclude that the applicant had been denied the opportunity contemplated by s.425(1)(a). The applicant, although permitted to appear before the Tribunal to give evidence, would have been denied the opportunity to appear and give evidence on an issue the Tribunal considered to be critical to the outcome of the case.

    h)In the present case, the applicant was denied the opportunity to give evidence and present arguments.  The decision of the Tribunal was infected with jurisdictional error and the relief sought should be granted.

    i)In respect of ground 1C, the Tribunal misinterpreted the expression ‘for reasons of’ as set out in the Refugees Convention when considering why ethnic Chinese in Indonesia were targeted.  The Tribunal stated:

    “The Tribunal accepts the applicant’s claims of discrimination in admission to university, harm suffered while at school and attending church, and the fact that her parents were harmed, as they are plausible.  But while there might be a racial element to criminal offences perpetrated against the ethnic Chinese, including the applicant, it was owing to their general economic position and the perception of their wealth that they were targeted.  However, this motivation does not attract the protection of the Convention, but was for a reason that was criminal in nature.”   (CB p.439)

    j)In relation to the applicant and her family, the Tribunal found that there were three reasons for the harm identified:

    i)race;

    ii)their general economic position; and

    iii)the perception of their wealth.

    k)The Tribunal, without identifying which of the three reasons referred to, then found that the motivation was criminal in nature, and therefore did not attract the protection of the Convention. This approach was erroneous and was based on a misapplication and misunderstanding of the law. What the Tribunal had to do was ask and to determine whether the Convention reason identified by the Tribunal, being race, was the essential and significant reason for the persecution. The Tribunal’s failure to do so means that it did not exercise its jurisdiction under the Act pursuant to s.91R.

    l)In regard to the issue of delay, it was submitted that the Tribunal’s decision was handed down on 25 July 2003.  The application before this Court was made on 4 June 2004, being a period of 10.5 months.  The reasons for the delay, set out in an affidavit of the applicant affirmed on 4 February 2005 and filed on 10 February 2005, stated that a request had been made to the Minister on 22 August 2004 and the Minister had considered the request but refused to exercise his discretion to substitute a more favourable decision on 5 May 2004.  It was submitted that in the circumstances of the case, the Court should not deny the application relief on discretionary grounds.  The present case was not one where relief should be withheld:  Thayananthan v Minister for Immigration & Multicultural & Indigenous Affairs at [23]-[31] and Applicant S454/2003 v Minister for Immigration & Multicultural & Indigenous Affairs at [59] per Gyles J citing a case of an eighteen month delay, with no reason put forward, was not a barrier to relief.

Respondent’s submissions

  1. Dr M Allars of Counsel, appearing for the respondent, filed written submissions prior to the final hearing which contained the following contentions:

    a)In respect of ground 1, being the applicant’s claim the Tribunal decision was affected by actual bias or a reasonable apprehension of bias, it was submitted that on 4 July 2002 the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) came into effect. That Act applies to applications for review by the Tribunal lodged after 4 July 2002. The application for review in this case was lodged on 8 August 2002. Section 422B(1) of the Migration Legislation Amendment (Procedural Fairness) Act provides that Division 4 of Part 7 of the Act (which contains ss.424, 424A and 425 concerning the conduct of a review by the Tribunal) is to be taken to be an exhaustive statement of the requirements of procedural fairness in relation to the matters it deals with. The procedural requirements set out in Division 4, so far as they are referrable to, or in part reflect, the requirements of procedural fairness in relation to the right to be heard, are to be treated as exhaustive.

    b)

    It follows that it was not open to the applicant to argue that the Tribunal’s decision was affected by actual or apprehended bias.  In any event, there was no evidence to support a finding of actual bias.  Moreover, there was no basis for concluding that a fair minded person would reasonably apprehend that the Tribunal did not bring a fair and unprejudiced mind to the issues before it:


    Ex parte H;

    cf NABT.

    c)The applicant relied upon NADH where apprehended bias was established. However, that was a case to which s.422B did not apply. Moreover, the basis for the conclusion of the Court was that the Tribunal’s factual conclusions bore little relationship to the answers which the applicant gave to the questions put to him to establish that he was conversant with the tenets of Catholicism.

    d)

    By contrast, in the present case, there was nothing in the transcript of the hearing to indicate that the Tribunal member had a closed mind.  The Tribunal sought to ask the applicant questions on matters which were troubling it and which required resolution in order to enable it to make findings on the issues raised in the application.  This was not a case where the credibility of the applicant became an issue.  As set out in paragraph 5(a) above, the Tribunal accepted the applicant’s account of discrimination she had suffered before she left Indonesia in 1982.  Her claim was limited and simple.  The case turned especially upon the factual issue of the current political situation in Indonesia.  The applicant had already sent the Tribunal a large amount of material on this issue, but most of it was confined to the period 1998 to 1999


    (CB p.429).  This was a case where the matters on which the Tribunal needed to inform itself could be covered effectively in the course of a short hearing.

    e)In respect of ground 2, at the time of the Tribunal hearing, s.425(1) of the Act provided:

    “The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments arising in relation to the decision under review.”

    f)Section 425(1) does not impose upon the Tribunal a duty the same as common law procedural fairness. In Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (“SCAR”) the Full Federal Court held at [35] that s.425 is directed to the invitation to the applicant to appear at the hearing, and does not embody common law procedural fairness entitlements: see Cho at [29]. An applicant is given a real and meaningful hearing if invited to appear and give evidence. Section 425(1) is breached if the Tribunal proceeds in the absence of an applicant who is absent for legitimate reasons of ill-health, or who has been misled as to the issue before the Tribunal or if the translation at the hearing is inadequate in relation to matters which are material to the decision. This holding in SCAR was re-affirmed in Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (“Appellant P119/2002”) at [16].

    g)The Tribunal was entitled to exercise some control over the direction and usefulness of the proceedings by asking questions.  In Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicant S154/2002 (“Applicant S154/2002”) at [57] their Honours Gummow and Heydon JJ affirmed that the proceedings before the Tribunal are not adversarial but inquisitorial. On the other hand, a Tribunal member is not obliged to proceed like a cross-examiner, seeking a detailed amplification of claims made. Similarly in NADH the Full Federal Court held at [124]-[125] that the Tribunal is entitled to ask questions and satisfy itself of matters.

    h)In NALQ v Minister for Immigration & Multicultural & Indigenous Affairs the Full Federal Court held at [30]-[35] that there was no breach of s.425(1) when the Tribunal proceeded with the hearing in the absence of the applicant, because the applicant’s representative had not produced a medical certificate. In WABZ v Minister for Immigration & Multicultural & Indigenous Affairs the Full Federal Court held that the Tribunal denied procedural fairness by refusing to permit the applicant’s representative to appear. It was also argued that there occurred a breach of s.425(1) because the Tribunal found it was not necessary to hear further evidence on certain matters. The Court held at [75]-[77] that this did not involve any breach of s.425(1). Moreover, there was no evidence the applicant was prevented from giving further evidence simply by reason of the inquisitorial style of the Tribunal.

    i)In the present case the applicant was present at the hearing and was assisted by two advisers. The Tribunal was entitled to ask questions which would enable it to elicit evidence on matters which were central issues, and to invite the applicant to give evidence and submissions on those issues. This the Tribunal did and no breach of s.425(1) was established.

    j)Ground 3 claimed that the Tribunal misinterpreted the expression ‘for reasons of’ when considering why ethnic Chinese in Indonesia were targeted.  The claim was made that the Tribunal erred in finding that because the acts inflicted upon ethnic Chinese were criminal acts there was no persecution by reason of membership of a particular social group, being that of ethnic Chinese.  Firstly, this misstated the Tribunal’s finding which should be understood in its context in the reasons.  The Tribunal observed that at the time the applicant suffered discrimination in Indonesia, the targeting of Chinese ethnicity was related to their genuine economic position although there was a racial element (CB p.439).  The passage in which the observation was made related to all the forms of harm which the applicant suffered, “in admission to university, … while at school and attending church” (CB p.439).  This was not an observation about the present situation or indeed the nature of the harm suffered by the applicant.  The observation was a shorthand and summary reference to the country information which the Tribunal had set out at length earlier in its reasons (CB pp.431-439).

    k)This country information indicated that sporadic outbreaks of communal violence in Indonesia in the mid to late 1990’s resulted from political, religious and economic causes and the targets were not only particular ethnic and religious groups but also symbols of government authority (CB p.432).  The Tribunal found that the focus of the riots was often the ethnic Chinese community, in particular small businesses, and the country information suggested that the most obvious explanation for the riots was a jealously of the economic success of the Chinese community, with the ethnic Chinese being convenient scapegoats for much deeper economic problems in Indonesian society (CB p.434).  However, the more recent country information indicated that since Indonesia ratified the International Convention on the Elimination of all Forms of Racial Discrimination in April 1999, changes in policy had led to a reduction in civil unrest, with not more than a five per cent chance of any individual attacks against Chinese ethnics (CB p.438).  In making these observations, the Tribunal was attempting to explain the political and social context in which the applicant suffered harm prior to her departure in 1982.

    l)Secondly, the relevance of the reasons for harm suffered in the past must be kept in perspective.  Past events were relevant to the question of whether the applicant has a well-founded fear of persecution in a subjective sense.  Past events were relevant to the question of whether a fear was well founded in the objective sense if useful as a predictor of likely future events.  However, if conditions have changed in the country because of a change in government policy, coupled with a change in behaviour within the country, then the present circumstances cannot objectively engender a well-founded fear:  Re Minister for Immigration
    & Multicultural Affairs; Ex parte Miah     (“Miah”) at [67]-[70].  The question of whether the subjective and objective elements of the test are met has to be answered at the time of the determination of the application to the Tribunal:  see Miah at [66]. In the present case the Tribunal properly moved on to consider the up to date material on the political situation in Indonesia. The Tribunal concluded that in view of the changes there was only a remote chance of the applicant suffering harm by reason of her ethnicity or religion (CB pp.440-441).

    m)The reasons why the Tribunal was not satisfied the applicant met the Convention definition were twofold. Firstly, the harm suffered was not severe or serious enough to meet the test of “persecution” in s.91R of the Act. Secondly, on the objective test of whether the harm suffered was well founded, independent country information about the changes in Indonesia since 1982 indicated that there was no real chance a person of the applicant’s ethnicity and religion would suffer harm on returning to Indonesia. That reasoning is in accord with the High Court authority of Applicant S v Minister for Immigration & Multicultural Affairs.

The hearing

  1. Mr Dobbie, Solicitor appearing for the applicant, applied for the following affidavits to be admitted into evidence:

    a)Affidavit of Etienne De Villiers Hugo, Solicitor, sworn, filed and served on 4 June 2004.  Annexed and marked “A” to the affidavit of Mr Hugo was a true copy of a transcript of the Tribunal’s hearing that was held in Sydney on 28 June 2003.

    b)Affidavit of the applicant affirmed on 4 February 2005 which was filed and served on 10 February 2005.

  2. The Court Book prepared by the respondent solicitors was filed and served on 24 September 2004.

Reasons

  1. In the applicant’s original application actual bias has been pleaded.  However, in the applicant’s outline of submissions, filed and served on 15 February 2005, the solicitors for the applicant indicated that the allegation of actual bias was not pressed but the ground of apprehension of bias was maintained.  In the applicant’s submissions, reproduced above at paragraph 10(a), it was claimed that the Tribunal refused to allow the applicant to tell her story and limited her to responses to questions asked by the Tribunal member.  The content of Q26 from the Tribunal hearing was quoted as evidence that the Tribunal had sufficient information to make a decision on the applicant’s application and at the subsequent question (Q27) the Tribunal member indicated that the purpose of the hearing was for the applicant to answer questions put to her by the Tribunal member.  The contention argued on behalf of the applicant was that she was denied the opportunity to give evidence and present arguments in support of her case.

  2. The contrary contention submitted by Counsel for the respondent was that the case essentially turned upon the factual issue of the current political situation in Indonesia.  It was noted that the applicant had previously sent the Tribunal a large amount of material in relation to this issue and most of it was confined to the period of 1998 to 1999 and was recorded as follows in the Tribunal’s decision:

    “Supporting documents about Indonesia and the situation facing the ethnic Chinese, mostly from 1998 to 1999, were also lodged with the Department.”   (CB p.429)

  3. The Tribunal then identified a number of the submissions made either by the applicant or on her behalf by Hitchcock & Associates, Migration Consultants.  The covering letters for the submissions were contained in the Court Book (CB pp.136-138 and 201-206).  The attachments to those letters were documents relating to the period of 1997 to 1999.  The Tribunal member indicated to the applicant that he had read the materials submitted by or her behalf (at Q26 of the transcript).  The Tribunal member confirmed to the applicant that he had read that material in detail (at Q27) and that he was attempting to determine whether there was any other information or issue that had not been conveyed to him.  Although the applicant did not elaborate on what she was attempting to convey to the Tribunal member, she appeared to want to repeat her personal circumstances.  The Tribunal hearing and in particular this exchange were held in the presence of the applicant’s two advisers.  These advisers were representatives of a migration agency and one adviser, Miss Merryn Rider, was personally responsible for the management of the applicant’s case.  Neither of these advisers and particularly Miss Rider attempted to bring to the Tribunal member’s attention any issue that the applicant wished to convey to the Tribunal that was of sufficient importance that the Tribunal member should have been made aware.

  4. The two advisers were again invited to make submissions to the Tribunal at the end of the hearing (Q28 of the transcript).  Mr Greg Mitchell, the other adviser, made no comment and Miss Rider made a comment that the applicant may have become more apprehensive about the situation in Indonesia in recent years because of various newspaper reports.  A further comment was made in answer to a direct question by the Tribunal member in regard to relatives of the applicant still residing in Indonesia, considering she was the only child of now deceased parents.  The advisers had carried out considerable research and prepared substantial submissions to both the delegate and the Tribunal obtaining background material in relation to the Sino-Indonesian situation.  They had also had the applicant as their client for some considerable time and were familiar with all aspects of her claim and the management of her case.  Both the advisers would have been aware of the significance of the Tribunal hearing and the need to convey to the Tribunal member any aspect of their client’s case that they believed the Tribunal member was not aware of prior to the preparation of his decision.  Despite this, neither of the advisers made any significant submissions to indicate the applicant possessed further relevant information that was important to the determination of her case by the Tribunal and to which the Tribunal member should have been made aware.

  5. In cases where apprehension of bias is raised the test to be applied is found in Ex parte H per Gleeson CJ, Gaudron and Gummow JJ at [27]-[31]:

    “The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided.  That formulation owes much to the fact that court proceedings are held in public.  There  is some incongruity in formulating a test in terms of “a fair-minded lay observer” when, as is the case with the Tribunal, proceedings are held in private.

    Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias.  Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done.  To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.

    Though the test in administrative proceedings, as in curial proceedings, is, in our view, one of objective possibility, the non-curial nature of the body or tribunal in question and the different character of the proceedings must, as already indicated, be taken into account.  In the present case, a significant difference between curial proceedings and the proceedings of the Tribunal is that the former are adversarial and the parties are usually legally represented, whereas the latter are inquisitorial in nature and the parties are not represented.

    Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented - often vigorously.  Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question.  Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.

    Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated.  If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker’s view.”

  6. The test is also found in NADH per Allsop J at [14]:

    “The general test for apprehended bias is whether the relevant circumstances are such that a fair-minded and informed person might reasonably apprehend that the decision-maker might not bring or have brought an impartial mind to bear on the decision:  Webb v R (1994) 181 CLR 41, 70-71; Laws at 90-92; Ebner at 343-45; and Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, 434-35 at [27]-[32].”

  7. It was the respondent’s submission that the simple answer to this ground was that s.422B applied to this application to the Tribunal which was made after 4 July 2002. Division 4 of Part 7 of the Act (containing ss.424, 424A and 425) concerns the procedure of the Tribunal and the question of whether s.422B should be construed in a narrow way as construed by Gray J in Moradian v Minister for Immigration & Multicultural & Indigenous Affairs (“Moradian”).  That issue was considered at length by Lindgren J in NAQF v Minister for Immigration & Multicultural & Indigenous Affairs which was referred to in Moradian.  Another relevant case in this particular line of authority was the decision of French J in WAJR v Minister for Immigration & Multicultural & Indigenous Affairs.  It was submitted that this Court should not find Moradian in the present case on the basis that the issue was not a reasonable apprehension of bias. It was submitted that the real issue in this case was about a breach of s.425(1). It was an issue about what kind of hearing the applicant was given and not an issue about the appearance of a pre-judgment or lack of being fair minded on the part of the Tribunal member. The question to be asked was: “Would a fair minded observer reasonably apprehend that the Tribunal member did not bring a fair and unprejudiced mind to these proceedings?” Consideration should be given to whether the length of time of the hearing was dependent on what the issues were and what was required in terms of evidence and submissions in order to deal with them effectively and whether an interruption of the applicant by the Tribunal member was dependent on where the evidence or submissions were really taking the Tribunal.

  1. Turning then to Division 4 of Part 7 of the Act which relates to ‘Review of protection visa decisions – Conduct of review’ the two sections that are significant in this case are s.422B and s.425 which are stated as follows:

    Section 422B

    Exhaustive statement of natural justice hearing rule

    (1)This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

    (2)Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

    Section 425

    Tribunal must invite applicant to appear

    (1)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.

    (2)Subsection (1) does not apply if:

    (a)the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or

    (b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

    (c)subsection 424C(1) or (2) applies to the applicant.

    (3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

  2. The operation of s.425 of the Act has been considered on a number of occasions and is effectively summarised in Appellant P119/2002 per Mansfield and Selway JJ at [16]:

    “As the Full Court of this Court said in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 198 ALR 293 at 299 [33]-[37]:

    Pursuant to s 425 of the Act the tribunal is under a statutory obligation to issue an invitation to an applicant to attend a hearing.  That indicates a legislative intention that an applicant is to have an opportunity to attend an oral hearing for the purpose of giving evidence and presenting argument.  The invitation must not be a hollow shell or an empty gesture:  Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188 at [31]; 64 ALD 395.

    In Liu v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 541; 187 ALR 348 the Full Court of this court considered the nature of the obligation imposed on the tribunal by s 425 of the Act.  The question before the court in that case was whether, if the tribunal constituted for a particular review had been reconstituted after an oral hearing, the second member was required by s 425 to invite the applicant to appear again and give evidence and present arguments to that new member.  Their Honours held that no such requirement was imposed by s 425 and went on to make the following observations, (at [44]):

    The right to a hearing is clearly an important and central right in the merits review system established by Pt 7 of the Act.  This has been acknowledged in other contexts:  see for example Amankwah v Minister for Immigration and Multicultural Affairs (1999) 91 FCR 248 at [13]; 166 ALR 460; Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at [20]; 56 ALD 231. The express qualifications in s 425 of the right to be invited to appear concern a limited set of circumstances.  The right to be invited exists unless the applicant's appearance is unnecessary from the applicant's point of view because the review will be decided on the papers in favour of the applicant or the applicant consents to the invitation not being extended, or the applicant forfeits the right.  The fact that the right can be lost in certain specified circumstances, and the nature of those circumstances, only serves to underline the parliament's intention that, at least generally, there should be a right to be invited to appear before the tribunal.

    Moreover, while it is not necessary to determine the question for the purposes of this appeal, we do not agree with the minister's submissions that the applicant's right to appear before the tribunal was diminished to a merely formal right to be invited by the changes made to s 425 by the Amendment Act.  As we have noted, the Amendment Act provided a new right to present argument before the tribunal and to receive notice of the hearing, as well as a right to be invited to comment on adverse material.  Certainly there is nothing in the explanatory memorandum to indicate that the right to be invited to appear was intended to be reduced to a merely formal right.

    Section 425 is not a code setting out all of the requirements for a fair hearing by the tribunal. For example, s 425 is directed to the invitation, rather than the hearing itself - this suggests that some of the entitlements which might normally fall within the usual or common law conception of procedural fairness, such as a duty (if any) to give reasons, are not encompassed by s 425. This does not mean that there is no such obligation - only that the obligation (if it exists) must be found elsewhere in the Act or in the common law. But what is clear is that the parliament has made compliance with s 425 of the Act a necessary condition and element of a fair hearing by the tribunal.

    It is clear that s 425 of the Act does not require that the tribunal actively assist the applicant in putting his or her case; nor does it require the tribunal to carry out an inquiry in order to identify what that case might be: Chen v Minister for Immigration and Multicultural Affairs [2001] FCA 1671.

    On the other hand, it is also clear that s 425 of the Act imposes an objective requirement on the tribunal.  The statutory obligation upon the tribunal to provide a "real and meaningful" invitation exists whether or not the tribunal is aware of the actual circumstances which would defeat that obligation.  Circumstances where it has been held that the obligations imposed by s 425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill health:  Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140.  They also include circumstances where the statements made by the tribunal prior to the hearing have misled the applicant as to the issues likely to arise before the tribunal:  VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804.  They also include circumstances where the fact or event resulting in unfairness was not realised by the tribunal.  For example, circumstances such as where the applicant was invited to attend and did attend before the tribunal, but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate:  Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050; W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788.”

  3. While Appellant P119/2002 covers the Tribunal’s statutory obligation to issue an invitation to an applicant to attend a hearing, the manner in which the Tribunal should conduct that hearing is considered in NABT at [20]-[22]:

    “ It is clear that there has been no failure by the Tribunal to comply with the obligation in s 425 of the Act to invite the Applicant to appear before the Tribunal to give evidence and to present arguments relating to the issues arising in relation to the decision under review. Nor has there been a lack of procedural fairness. The Applicant was given every opportunity to put information before the Tribunal and to make comments at the start and end of each second hearing. The Applicant was not denied any opportunity to appear and give evidence on an issue the Tribunal considered to be critical to the outcome of the case (see Minister for Immigration & Multicultural Affairs v Cho (1999) 164 ALR 339 per Sackville J at [355] – [6], Mohamed v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 264 at [43] per Branson J and Xiao v MIMIA [2000] FCA 1472). This is not a case where the Applicant was not able, through the conduct of the Tribunal, to give evidence or present arguments. He had abundant opportunity to do both. The difficulty was that he gave inconsistent and unresponsive answers and this necessitated repeat questioning by the Tribunal. There is nothing to suggest that the interpretation was inadequate in the sense considered by Kenny J in Perera v Minister for Immigration & Multicultural & Indigenous Affairs [1999] FCA 507 (also see De Silva v MIMIA [2000] 98 FCA 364 at [8] Dissanayake v MIMIA [2002] FCA 976 and NAOV v MIMIA [2003] FMCA 70).

    One of the incidents of the duty of procedural fairness is ‘the absence of the actuality or the appearance of disqualifying bias’ (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 per Deane J and see Re Refugee Review Tribunal;


    Ex parte Aala (2000) 75 ALJR 52 and MIMA v Jia [2001] HCA 17).  The applicant claimed that the Tribunal member was angry with him and asked irrelevant questions and in this respect did not conduct the hearing properly.  However, the material before the Court does not establish either actual or apprehended bias on the part of the decision-maker or any denial of natural justice in the conduct of the review by the Tribunal.

    As Drummond J stated in Li v MIMIA [2000] FCA 19 at [42] “actual bias exists where the decision-maker has prejudged the case against the applicant, or has acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant”.  (Also see MIMA v Jia (2001) 178 ALR 421 at [71] – [72] per Gleeson CJ and Gummow J).  There is no proof of such a state of mind in this case.  The decision-maker did not express views adverse to the applicant’s case in a way which indicated that such views were incapable of being changed.  Rather the Tribunal member made it clear that he had concerns about inconsistencies and that he sought clarification in relation to issues of concern.  He did display some irritation or impatience (more particularly at the migration agent’s interruptions) but such displays are not ‘without more generally sufficient to establish … [actual] bias’ (Drummon J in Li at [42]).  As in Li, the applicant criticised the Tribunal for challenging his credibility on relevant issues.  As in that case this criticism ‘misunderstands the proper role of the Tribunal and ignores the legislative framework within which the Tribunal must operate’


    (Li at [44]).  The Tribunal properly exercised its inquisitorial role in testing the applicant’s credibility by questioning in relation to issues which were of relevance to whether the applicant was entitled to a protection visa.  By such questioning the Tribunal gave the applicant the opportunity to address its concerns.  This does not suggest a closed mind.  Nor, on the material before the Court, am I satisfied that there was any real likelihood that a reasonable observer might entertain a reasonable apprehension that the Tribunal might not bring an impartial and unprejudiced mind to resolution of the application (See MIMA v Jia [2001] HCA 17).  As Gleeson CJ, Gaudron and Gummow JJ stated in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [5] the rule as to apprehended bias when applied outside the judicial system (as here) must take account of the different nature of the Tribunal and the different character of its proceedings (also see Jia at [181] [187] and [100] consistently with the approach adopted by Mason J in Kioa v West (1985) 159 CLR 550 at 585).  As indicated the Tribunal has an inquisitorial role.  The non-curial nature of the Tribunal and the different character of the proceedings compared to court proceedings is relevant.  The credibility of the applicant was clearly in issue.  The decision-maker in such circumstances had necessarily to test his evidence and confront him with adverse matters and inconsistencies.

    I am not satisfied that the manner in which the Tribunal conducted the hearing was such as to result in the applicant being overborne or intimidated.  The Tribunal did put inconsistencies and concerns to the Tribunal.  It did so on several occasions but this was in the context of vague and unresponsive answers.  The Tribunal did not use the language of prejudgment.  To indicate that inconsistencies cause concern and to invite comment does not reveal prejudgment.  The Tribunal gave the applicant the adjournment sought, considered the late submitted material and allowed the applicant a further opportunity to respond to issues of concern in the second hearing.  In all the circumstances of this case I am not satisfied that either actual or apprehended bias has been established.”

  4. Further assistance as to the manner in which the Tribunal should conduct its hearing is found in Cho per Sackville J at [69]-[70]:

    “These cases illustrate that s 425(1)(a) is primarily directed to the requirement that the RRT ensures that the applicant not only knows of his or her entitlement to give evidence (see s 426(1)(a)), but receives adequate notice of the hearing and is not unfairly impeded by the RRT from taking advantage of the statutory entitlement.  Ordinarily, the RRT complies with s 425(1)(a) if the applicant receives timely notification of his or her statutory entitlement and of the hearing at which that entitlement may be exercised.  If the applicant does not appear, otherwise than through reasons beyond his or her control and of which the RRT is aware, there will generally be no breach of s 425(1)(a).  If the applicant does appear in response to the timely notification, and gives evidence before the RRT, there will likewise generally be no breach of s 425(1)(a).

    It does not necessarily follow that the effect of s 425(1)(a) is exhausted once the RRT actually commences to hear the applicant's evidence, adequate notice of the hearing having been given.  There may be circumstances - although I think that they are likely to be rare - where the RRT conducts the hearing itself in a manner which denies the applicant the genuine opportunity contemplated by s 425(1)(a).  To take a hypothetical example, the RRT, having given the applicant timely notification of the statutory entitlement and the hearing, might inform the applicant at the hearing itself that he or she will not be permitted to give evidence on a particular claim within the applicant's own knowledge.  If the RRT were to reject the application on the ground that it had not been satisfied of the particular claim, it would not be difficult to conclude that the applicant had been denied the opportunity contemplated by s 425(1)(a).  The applicant, although permitted to appear before the RRT and to give evidence, would have been denied the opportunity to appear and give evidence on an issue the RRT itself considered to be critical to the outcome of the case.”

  5. The Solicitor for the applicant referred the Court to Moradian which was a case that considered denial of procedural fairness to an applicant in relation to s.51A of the Act , being an exhaustive statement of the natural justice hearing rule under Division 3 of Part 2 of the Act. This provision is a mirror image of s.422B which is the relevant provision in this case. This authority was put forward in support of the argument that the procedural fairness rule is not excluded by the operation of s.422B. In Moradian, His Honour Gray J stated at [35]-[36]:

    “It may be accepted that, in accordance with s 15AA of the Acts Interpretation Act, a construction favouring the underlying purpose or object of the Migration Act is to be preferred to a construction that would not promote that purpose or object. It may also be accepted that the purpose or object of s 51A(1) of the Migration Act was that identified by the second reading speech in support of the bill by which the Minister sought to introduce s 51A(1) as being to overcome the decision of the High Court in Miah. It may be accepted that s 51A(1) is an ambiguous provision, because of the different views that might be taken as to the characterisation of the relevant ‘matters’, and that therefore resort can be had to extrinsic materials pursuant to s 15AB of the Acts Interpretation Act. The difficulty is that neither the explanatory memorandum nor the second reading speech (and neither counsel referred to any other secondary material in this context) resolves the ambiguity. Nor is the general statement of purpose found in those documents sufficient to answer the specific question as to the approach to be taken to the characterisation of the ‘matter’ with which s 57 of the Migration Act deals.

    In my view, it is necessary to return to the fundamental principle, articulated in Annetts v McCann, that the principles of procedural fairness can only be excluded by ‘plain words of necessary intendment’.  In this respect, so far as the present case is concerned, s 51A(1) may be viewed as containing ‘indirect references, uncertain inferences or equivocal considerations’, which do not disclose an intention on the part of the legislature to exclude the principles of procedural fairness with sufficient certainty.”

  6. It was argued on behalf of the applicant that Moradian is authority that the common law procedural fairness rule is not excluded by the existence of s.422B and the operation of that section was not exhaustive in the present case and the ground of apprehension of bias was made out. It was submitted that the Tribunal hearing was perfunctory even though the applicant appeared before it and that the holding and operation of the hearing was merely a token gesture.


    I believe this argument has weight in the circumstances of the self represented litigant who is burdened with the problem of language and unfamiliarity with the workings of the administrative system.  An applicant in these situations in endeavouring to put forward their case may be overwhelmed or intimidated in the circumstances where the Tribunal member expresses himself in the manner as set out in the transcript of the Tribunal hearing.

  7. However, that was not the situation in this case.  The applicant attended the Tribunal hearing with two advisers who were employees of a registered migration agent and were familiar with the circumstances of the applicant’s case.  When the applicant in answer to Q26 said to the Tribunal member:  “I have to tell you my story rather than answering your questions” and the Tribunal member responded in the manner in which he did, the applicant may have been confused or unsure of her position and may have been reluctant to proceed.  If she had been by herself at that stage the “hypothetical, fair minded lay person, who is properly informed as to the nature of the proceedings” would have most probably formed the view that the Tribunal member displayed a reasonable apprehension of bias.  However, the applicant was accompanied by two competent migration agents who would have been aware of the importance to put to the Tribunal further information to support the applicant’s case should such information exist.

  8. The transcript of the proceedings demonstrated that neither of the advisers interrupted or expressed to the Tribunal member in any way that there was additional information that needed to be conveyed to the Tribunal member.  Again, at the end of the proceedings when the advisers were invited to make any additional comments relevant to the applicant’s case, the only response made was that of Miss Rider who raised the issue of the influence of newspaper articles on the apprehension of the applicant.  Other than this point nothing was raised.  As the migration agency had been retained by the applicant for a considerable time during the processing of her claim, from its inception to the Tribunal hearing, and should have been totally conversant with the salient points of the applicant’s case, it is difficult to understand why neither adviser failed to interject when the Tribunal member made the comment to the applicant at Q26 or at the end of the hearing when they were invited to make additional comments.

  1. Giving Mr Dobbie the benefit of the wider interpretation of the operation of s.442B and opposing the narrow interpretation as argued by Dr Allars, despite this broader approach I do not believe that ground 1 argued by Mr Dobbie can be sustained when noting the presence of competent migration agents during the hearing and no subsequent attempt being made by them prior to the handing down of the Tribunal’s decision to register any objection that the Tribunal member denied the applicant the opportunity to supply further information or promote any argument in support of her case.

  2. In respect of ground 2 it was submitted on behalf of the applicant that the transcript showed that the applicant was not given an opportunity to give evidence and arguments. It was claimed that the Tribunal’s emphatic refusal to allow the applicant to tell her story, and its decision to limit her response to questions raised concerning issues the Tribunal had was overbearing and the Tribunal failed to give the applicant a hearing required by law. It was submitted that where the Tribunal conducts the hearing in a manner which denies the applicant a genuine opportunity as contemplated by s.425(1)(a), such a failure is a failure going to jurisdiction and not merely to procedural irregularity.

  3. In the Full Federal Court decision of SCAR it was stated at [35]:

    “Section 425 is not a code setting out all of the requirements for a fair hearing by the tribunal.  For example, s 425 is directed to the invitation, rather than the hearing itself …”

  4. This suggests that some of the entitlements that normally fall within the usual or common law concept of procedural fairness are not encompassed by s.425. It was further stated at [36]:

    “… that s 425 of the Act does not require that the tribunal actively assist the applicant in putting his or her case; nor does it require the tribunal to carry out an inquiry in order to identify what that case might be: Chen v Minister for Immigration and Multicultural Affairs [2001] FCA 1671.”

  5. In SCAR at [36] a complete exposition of the development of the case law in respect of s.425 is set out and falls into three areas:

    a)if an applicant is unable to attend the hearing before the Tribunal because of illness and that illness has been explained to the Tribunal by a medical certificate then the Tribunal ought not to proceed in the absence of the applicant;

    b)where the Tribunal misleads the applicant as to issues likely to arise before the Tribunal; and

    c)where an applicant is effectively excluded from taking part because he cannot speak English and the translator is not provided or is inadequate.

  6. These three illustrations are the ways in which s.425(1) has been interpreted and developed. The section does not go further than that. It does not reflect common law procedural fairness being a narrow kind of duty.

  7. In the High Court decision of Applicant S154/2002 at [57] their Honours Gummow and Heydon JJ point out that the proceedings before the Tribunal are not adversarial but rather inquisitorial. At [58] their Honours state in their joint judgment that the Tribunal member is not obliged to proceed like a cross examiner seeking a detailed amplification of the claims made.

  8. In the present case, the Tribunal’s duty is as set out in s.425(1) to invite the applicant to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review. It is not inconsistent with that for the Tribunal to be entitled to control the conduct of the proceedings so that they operate in an effective and efficient manner. This principle is true of a Court which is bound by common law principles of procedural fairness. A Court is entitled to indicate to a party that it does not wish to hear irrelevant evidence and may decline to admit it. The Court is also entitled to control the proceedings so that the party who is giving evidence or making submissions is required to curtail the length of time taken. Given the more limited opportunities which are provided by s.425(1), those principles apply with even more force. The inquisitorial nature of the proceedings is confirmed by the High Court in Applicant S154/2002 and re-enforces the importance of that function of the Tribunal of controlling its own proceedings.  Because the proceedings are inquisitorial, the hearing is not an opportunity for the applicant to tell his or her own story.  That suggests an open ended opportunity to address the Tribunal in a way which appears to go far beyond what common law procedural fairness would require.

  9. An applicant before the Tribunal has an opportunity to put evidence and make submissions in written form as well as orally.  The opportunity to make written submissions and provide documents is designed to make oral hearings more efficient in the same way as written submissions and affidavit evidence operates in a Court.  It is reasonable for a Tribunal to indicate at appropriate points that it does not need to hear an applicant further on a particular issue whether the applicant is adducing evidence or whether the applicant is making submissions.

  10. The transcript of the Tribunal hearing in this case demonstrated that the Tribunal member did provide the applicant with an opportunity to respond to his questions and make any submission in respect of a number of issues that the Tribunal member indicated were important in determining the applicant’s objective fear of persecution which was necessary for him to determine whether s.91R of the Act was met. At Q9 the Tribunal member commenced a series of questions relating to matters personal to the applicant. The Tribunal member asked questions about what was the experience of the applicant’s parents.


    Further questions regarding the applicant’s parents were addressed in Q11 and Q12.  The Tribunal member then asked questions which enabled the applicant to provide additional evidence that was additional to what had already been provided by her representatives.  The questions were put and answered regarding whether or not the applicant’s family was free to practise their religion.  Question 14 turned to the issue of discrimination on the grounds of race.  While answering Q14 the applicant hesitated to which the Tribunal member responded:

    “That’s OK, take your time.”

  11. The Tribunal member then allowed the applicant to continue.  In Q16 he then moved to another issue relating to the applicant’s personal particulars.  From Q22 the Tribunal turned to issues concerning country information.  These questions had to be considered in the context of what had occurred.  The applicant had had the opportunity to provide documents to the Tribunal and contained within these was a large amount of country information.  This information was reproduced in the Court Book (pp.146-197, 207-236 and 260-314).  The Tribunal already had in its own possession a large amount of documentation which contained this kind of material.  A further observation of the Tribunal was that much of the country information provided by the applicant was out of date, relating to a period around 1998/1999.  It was in this context that the Tribunal member made the comment at Q27:

    “I have read the document very carefully.  The purpose of the hearing is for you to answer my questions.”

  12. Taking the questioning as a whole, the questions which the Tribunal member had asked the applicant were designed to elucidate and provide more details on matters relating to personal information being evidence as to whether or not the applicant had a subjective fear of persecution. Taking the transcript of the Tribunal hearing as a whole, in the context of the inquisitorial nature of the hearing and the limiting nature of s.425, I do not believe that the ground of a breach of s.425 can be sustained.

  13. In respect of ground 3, both parties relied on their written submissions which have been reproduced above at paragraphs 10(i), (j) and (k) for the applicant and paragraphs 11(j), (k), (l) and (m) for the respondent. The argument raised on behalf of the applicant was that pursuant to s.91R(a) the Tribunal had to look at the essential and significant reasons for persecution. In this case the Tribunal accepted that the applicant and her family were targeted because of their general economic position and perception of wealth which resulted in attacks that were criminal in nature and motivated by this perception. The applicant argued that the Tribunal simply did not undertake that task required under s.91R(a) because it just looked for a reason that was criminal in nature. It was argued that that really begged the question when one looked generally at what serious harm was to amount to persecution. It was argued the Tribunal failed to undertake the task to answer the question it had to because it simply misunderstood s.91R and how it operated. It was submitted that the Tribunal was required to go further than that and not just look at whether the act was criminal in nature but whether or not the harm feared or suffered in the past was persecution for the purposes of s.91R.

  14. When the Tribunal was examining the country information and considering the question addressed by s.91R(a), the Tribunal member made the following observation in respect of attacks on the ethnic Chinese community:

    “There are different theories as to why the ethnic Chinese community is so often the focus of such riots.  Jealously of the economic success of the Chinese community is the most obvious explanation but the riots typically target small businesses rather than interests associated with the handful of extremely wealthy ethnic Chinese entrepreneurs.”   (CB p.434)

  15. The Tribunal then considered a number of articles as part of the process of updating the country information to reflect the position that existed at the time of the Tribunal hearing.  The question whether the subjective and objective elements of the test were met has to be answered at the time of the determination of the application to the Tribunal:  see Miah per Gaudron J at [66]:

    “The third matter that should be noted with respect to the Convention definition of “refugee” is that the question whether a person has a well-founded fear of persecution and is unable or, owing to that fear, unwilling to avail himself or herself of the protection of his or her country has to be answered at the time of the determination of his or her application for a visa.  However, past events to which that person has been subjected are very material considerations in determining whether a fear is then well-founded, even if conditions have changed in the country concerned.”

  16. The applicant left Indonesia and arrived in Australia on 22 June 1982.  Her first period of residency in Australia up to 1992 was as an overseas private student.  On expiry of the applicant’s student visa she overstayed illegally although she had been involved in the Parish Patience ROSCO class action in 1998.  The applicant subsequently filed a protection visa application in 2001.  The material the applicant filed in support of her visa application was country information covering the period of 1996 to 1998.  The situation in Indonesia has changed significantly since the applicant’s departure in 1982 and continued to change since the time of the country information filed in support of her visa application due to changes in Indonesian governmental policy coupled with a change in behaviour within the country due to the ratification of the “International Convention on the Elimination of All Forms of Racial Discrimination” as signed by the Indonesian Government in April 1999.  The Tribunal noted that since the Indonesian Government had ratified the Convention changes in policy had led to a reduction in civil unrest and there was no more than only a five per cent probability of any individual attack against ethnic Chinese occurring (CB p.438).  The country information relating to the mid to late 1990’s indicated that, in sporadic outbreaks of communal violence in Indonesia due to political, religious and economic causes, the targets were not only particular ethnic and religious groups but also symbols of government authority.  It was noted that the focus of riots was often the ethnic Chinese community, and in particular small businesses, and the country information suggested that an explanation was the economic success of the Chinese community.  The Tribunal was attempting to explain the political and social context had significantly changed since the time the applicant had suffered harm prior to her departure in 1982.  Further significant changes were noted due to shifting government policy particularly in respect of ethnic minorities.

  17. The context of the passage relied on by the applicant (CB p.439), reproduced at paragraph 10(i) in the applicant’s submissions above, referred to the situation to which the applicant was exposed prior to her departure from Indonesia in 1982 and continued to exist until the late 1990’s.  The findings of the Tribunal in respect of the applicant’s claims of persecution prior to her departure from Indonesia were stated:

    “… during the hearing she claimed that on her way to church she was spat on, stones and tomatoes were thrown and she was verbally abused”.   (CB p.439)

  18. Although the Tribunal acknowledged that these were unpleasant experiences, it found that they did not constitute persecution within the meaning of s.91R of the Act in that they did not constitute systematic and discriminatory conduct. The Tribunal then proceeded to refer to a number of sources that detailed the changes that have occurred since the late 1990’s, many of which related to the Indonesian Government’s ratification of the “International Convention on the Elimination of All Forms of Racial Discrimination” in April 1999 (CB p.440). I accepted the submissions of Dr Allars at paragraph 11(m) as to why the Tribunal was not satisfied that the applicant met the Convention definition in s.91R of the Act, namely:

    a)The personal harm suffered by the applicant up to her departure was not severe or serious enough to meet the test of persecution.

    b)On the objective test whether harm suffered was well founded, independent country information about the changes in Indonesia since 1982 indicate there was no real chance that a person of the applicant’s ethnicity and religion would suffer harm on returning to Indonesia.

  19. The Tribunal found on the basis of the up to date country information that there was no more than a remote chance of the applicant being caught up in any ethnic violence or incidents on her return to Indonesia. Therefore, ground 3, claiming that the Tribunal failed to exercise its jurisdiction under the Act pursuant to s.91R, was not made out.

Conclusion

  1. The Tribunal made findings that were open to it on the material before it and did not make a jurisdictional error.  Accordingly, the applicant’s substantive application to the Federal Magistrates Court must fail.

  2. As the applicant has been unable to establish a jurisdictional error it is unnecessary for this Court to consider the Notice of Objection to Competency as s.477(1A) of the Act has no jurisdiction.

  3. I am satisfied that an order for costs should be made in this matter.


    I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:  Menna McMullan

Date:  9 June 2005

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Cases Cited

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Statutory Material Cited

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Webb v the Queen [1994] HCA 30
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28
Chen v Minister for Immigration and Multicultural Affairs [2001] FCA 1671