SZFRG v Minister for Immigration - [2006] FMCA 1165

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFRG & ORS v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1165

MIGRATION – Review of RRT decision − where applicants claimed refugee status on grounds of race and religion − where RRT did not put all matters and documents it considered to the applicants − where decision made before 422B Migration Act came into effect − whether breach of procedural fairness − whether RRT put substance of the relevant country information to applicants and sought their response − where RRT did not reveal to the applicants that the Department had earlier made a direct submission to it − whether gravamen of that submission put to the applicants.

Migration Act 1958, ss.422B, 424A, 423(2)
Federal Magistrates Court Rules 2001

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601
Kioa v West (1985) 159 CLR 550
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1994) 49 FCR 576
Applicant VEAL of 2002 v Minister for Immigration [2005] HCA 72
NAOA v Minister for Immigration [2004] FCAFC 241
Minister for Immigration; Ex Parte MIAH (2001) 179 ALR 238
M1015/2003 v Minister for Immigration [2004] FCA 1309
VHAP of 2002 v Minister for Immigration [2004] FCAFC 82

Applicants:

SZFRG, SZFRH, SZFRI, SZFRJ

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG336 of 2005

Judgment of:

Raphael FM

Hearing date:

26 July 2006

Date of Last Submission:

26 July 2006

Delivered at:

Sydney

Delivered on:

14 August 2006

REPRESENTATION

Counsel for the Applicants:

Mr L. Karp

Solicitors for the Applicants:

Parish Patience

Counsel for the First Respondent:

Mr T. Reilly

Solicitor for the First Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicants to pay the respondent’s costs in the sum of $5,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG336 of 2005

SZFRG, SZFRH, SZFRI, SZFRJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

The applicants are two adults and their children who are Indonesians of Chinese ethnicity. Although they had visited Australia prior thereto they finally arrived in this country on 1 June 1998. On 9 June 1998 they lodged a combined application for protection visas with the Department of Immigration & Multicultural Affairs. On 26 June 1998 a delegate of the Minister refused to grant protection visas and on 24 July 1998 the applicants sought review of that decision. The husband and wife attended a hearing by the Tribunal on 5 October 1999 where they were assisted by an interpreter. On 11 November 1999 the Tribunal affirmed the decision not to grant protection visas.
Both the husband and wife claimed to have a well founded fear of persecution for the Convention reason of race and religion. In addition to being of Chinese ethnicity they were also both Christian. The family had left Indonesia because their home and business premises had been gutted by fire during the anti-Chinese riots that had occurred on 13 May 1998. The applicants’ home was near the university where protests had commenced and they told the Tribunal of Indonesians surrounding their house shouting “kill and burn Chinese”. The male applicant told the Tribunal about other forms of discrimination faced by ethnic Chinese within Indonesia including being required to change their name to an Indonesian name, not being allowed to speak their own language, there being a prohibition on Chinese schools and on the celebration of Chinese new year. The male applicant accepted that the fact that he had travelled to Australia and returned to Indonesia in 1997 indicated that the level of discrimination was tolerable at that time but he indicated that the events of May 1998 instilled in him and his wife a genuine fear for their lives and safety in the future.
The applicant wife made claims identical to those of her husband in her written application, but before the Tribunal she gave more detailed evidence of what occurred to her on 13 May 1998. At the time she was driving her children home from school and was attacked by a mob. Although she escaped she was traumatised. The applicant wife had particular concerns for the safety of her daughter.
By the time the Tribunal hearing took place the situation in Indonesia had changed considerably. President Suharto had been ousted and President Habibie had replaced him. This post-Suharto government had begun to eradicate institutionalised discrimination against Chinese Indonesians. President Habibie had ended the requirement that the word “Chinese” was placed on the ID cards of persons of Chinese ethnicity. Racial tensions in Indonesia had subsided and since early 1999 there had been no reports of anti-Chinese riots.
In its findings and reasons the Tribunal accepted the evidence of the applicants which it considered it had been given in “a wholly credible and compelling manner”. It accepted the evidence of the destruction of the business premises and home, and the female applicant’s claim that rioters had attacked her car:
“The Tribunal accepts that the applicants have no source of income if they return to Indonesia and that they have no property owned by them in which they could live or which they could sell. The Tribunal also accepts that they have close relatives who are citizens of Australia.”
But the Tribunal concluded that the applicants were not persons to whom Australia owed protection obligations. At [CB 73] it stated:
“On the basis of the independent evidence before me and the evidence of the applicants themselves I cannot be satisfied that their fear of persecutory treatment during the riots is well founded. My reasons are as follows:
Firstly, there is the evidence that a very small percentage of the country’s 5,000,000 or so ethnic Chinese were actually harmed during the 1998 riots. The experience of the applicants is consistent with this in that although their business premises were destroyed and they were fearful of injury they themselves were unharmed.
Secondly, I have noted evidence from many credible sources that there have been significant changes in Indonesia since the applicants left some 17 months ago. …
Thirdly, there are clear indications that ill treatment or scape-goting of ethnic Chinese because of their race will not be officially tolerated by the Indonesian authorities. The independent evidence indicates that President Wahid is highly likely to condone sectarian violence. Further, it appears that the most popular political party nationally, whose leader is now Vice President Megawati Sukarnoputri, is a moderate one with substantial support from ethnic Chinese Indonesians and with at least one ethnic Chinese person playing a senior role within it. For these reasons I am unable to be satisfied but there may be renewed ill feeling against ethnic Chinese under the circumstances described by the adult applicants.”
These two determinative paragraphs make reference to information provided to the Tribunal. It is the complaint of the applicants that in taking certain of this information into account the Tribunal did not provide them with procedural fairness and thus fell into jurisdictional error. The Tribunal decision was made before the coming into effect of s.422B of the Migration Act 1958 (the “Act”) and it is accepted by the Minister that the ordinary rules of procedural fairness are to apply.
At the hearing the applicants filed an amended application, the grounds of which are:
“1. The applicants were denied procedural fairness.
Particulars
(a) The applicants were not advised of information relied on by the Tribunal in making its decision, that information being;
(i)That President Wahid was described by Paul Kelly in The Australian of 21 October 199 as an “anti sectarian”, and a “defender of the Christian minority”, and a “moderate void of reason and democracy”.
(ii)That although there have been ethnic riots in Indonesia for several years, the last riot in Jakarta was in November 1998 and that Java has been relatively quiet since that time.
(iii)A June 1999 report in the South China Morning Post noted that numerous reports of planned attacks on ethnic Chinese had rarely materialised (CB 67.4).
(iv)The police and military had responded to and quelled riots in the past, and rioters have been prosecuted and sentenced (sourced to several sources, including the Tapol Bulletin, Agence France Presse, the Far Eastern Economic Review and the Straits Times).
(v)The Department of Foreign Affairs had submitted to the Tribunal in mid-1998 that the level of internal instability in Indonesia had settled down “considerably” since the resignation of President Suharto. Those riots which exhibited an anti-Chinese element were usually triggered by protests against corruption.
(b) The Tribunal did not disclose to the applicants that the Secretary of the Department of Immigration and Multicultural Affairs had made a submission to the Tribunal pursuant to s.423(2) Migration Act, and that the Tribunal proposed to use that submission.”
The court was provided with a transcript of the hearing before the Tribunal. At [P2] of the transcript the Tribunal stated:
“If there is evidence from another source which makes me think that you might be refugees I don’t need to discuss that with you because it is favourable to you but I have a legal obligation to make you aware of the substance of any evidence that might suggest that your fear of being persecuted is not well founded for some reason. During the hearing I might ask you to comment on evidence from some other source. If I do that I don’t want you to infer from that that I am placing greater weight on that evidence than I am on what you are telling me. What will happen is that after the hearing I will go away and I will think about what you have told me. I will think about the independent evidence, then I will arrive at a decision.”
The applicant also provided an affidavit explaining why it took so long for him to bring his claim into this court. It would appear that after his case was refused he joined a class action which I take to be that of Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601 that was eventually dismissed by the Federal Court on 20 February 2004. He then lodged a s.417 request to the Minister. That requested was refused on 21 December 2004. On 4 February 2005 he instructed his present lawyer to challenge the RRT’s decision in this court.
In order to understand the context within which the allegations of lack of procedural fairness are made it is necessary to set out what was said to the applicants:
“Q48.Yes, what I want to do is just to put to you for your comments a summary of the evidence that is widely available about recent developments in Indonesia since you left and then we can talk about how they might affect you if you go back.
A.Like I said in Indonesia there are lot of incidents or protests and killings, the burning of churches, even the incident in Ambon, I heard there is more brutal than what happened in East Timor. The church I used to go was burned down too.
Q49.Is that something that happened during the riot?
A.After the riot.
Q50.Was that after you left the country?.
A.Yes.
Q51.While you were in Indonesia apart from the period where the riots were actually happening were you able to go to church?
A.After the 13 May we couldn’t even go out of the house let alone to go to the church..
Q52.I’m just asking about before that blow up in the security situation, before the riots, were you and your family able to go to church when you wanted to?
A.Yes, we were able to go to church but sometimes we found out that the tyres were let down, the car was scratched, things like that.
Q53.So this was part of the normal activity of local people doing this kind of petty harassment of Chinese living in the area?
A.Yes, I think it was the local who do it.
Q54.Let me just put all of this evidence to you in summary and then you’re welcome to comment on it in any way you want to? Since you left Indonesia there have been some significant changes. Of course we are aware that in some parts of Indonesia there are terrible things happening and terrible human rights violations occurring but of course what I’m doing today is just concentrating on how all of these changes are affecting the ethnic Chinese community. As you know President Suharto has resigned. There’s been a multi-party election for the first time in many, many years. The results of that election show that the majority of the population support parties with moderate views, moderate extremist views. For the first time in many years the media are able to report stories openly, frankly. The Chinese political party has been formed. The PDIP, which won the majority of votes in the recent election, has many supporters among the ethnic Chinese and has many Christian members. There have been no reports of any serious anti-Chinese or anti-Christian riots in Jakarta during this year. Indonesia has signed the United Nations Convention against racial discrimination. There has been a regulation introduced so that Chinese no longer have to be identified as Chinese on their identity card. President Habibe has stated publicly that all Indonesians are equal regardless of their race. I know he’s a lame duck president in many ways but he’s certainly he’s a very important figure and he’s made a very public statement to the community saying that all Indonesians are equal. All of this evidence suggests to me that there have been some quite important changes in terms of the way in which ethnic Chinese people are now being regarded and the changes of being persecuted because you are Chinese or Christian in Jakarta seems to be reasonably remote now. The chances of being persecuted because you’re Chinese if you’re living in Jakarta or if you’re Christian now seem to be reasonably remote. Finally, I think my impression of this evidence is that the ABRI for whatever reason doesn’t have an interest anymore in orchestrating violence against the Chinese community.
A.What do you mean that ABRI is not interested anymore?
Q55.In orchestrating violence against the Chinese. All we can do is try to understand what’s going on behind the scenes from what’s actually happening and what I’ve just put to you is what seems to be actually happening.
A.After the changing of president and President Habibe is now in power it was right what you said that the Chinese are not going to be identified through the identity card anymore and there is a particular Chinese political party being formed but I’m not going to trust Indonesian government anymore. Because even after Habibe is in power things still happen in Ambon, lots of Christian were killed, that happened in 1999. And also in East Timor even though they have a referendum that the majority are pro independence, things still happen. It’s as if they didn’t really want to let East Timor be independent. The ABRI don’t support Indonesia.
“Q56.Yes, that’s all true, that seems to be quite obvious. What I’m putting to you is that if you were back in Jakarta as an ethnic Chinese person in Jakarta even though these other things are happening in other parts of the country, do you think there’s a real chance that you would suffer very serious harm if you went back to Jakarta now?
A.Of course, because once the incident goes to Jakarta and straight to Surabaya especially in Jakarta it will become brutal.
Q57.Sorry, interpreter, can you say that again?
A.Because these little incidents once it spread to Jakarta and Surabaya especially in Jakarta they will become more brutal, more violence.
“Q58.That’s the point really, what makes you think that it might spread to Jakarta?
A.For example, things that happen in Ambon I think ABRI organise all these incidents and what happen if ABRI goes to Jakarta and organise these things.
Q59.I suppose my impression from the evidence is that there are regional tensions in Ambon and in Aceh and in East Timor, which ABRI may have an interest in, does have an interest in, but I’m not sure that that translates into a danger to ethnic Chinese in Jakarta?
A.I think it was last time there was a protest organised by the students and seven students from Gunadarma university were killed.
Q60.From which university?
A.I think Gunadarma. I’m not so sure, I think Gunadarma. I think a small boy, nine years old, was killed.
Q61.But were they Chinese?
A.Some of them were Chinese.
Q62.Were they killed because they were Chinese or was that really incidental?
A.I think that’s what happened because ever since the Chinese got some freedom they took part in protest. The Chinese started to open their voice and critical of the government. The student are always critical of the government.
Q63.So are a lot of Muslim students critical of the government, some of them also have been killed.
A.That’s right. … The theories are good but it’s never enforced..
Q64.Is there anything else that you want to tell me about what’s happened to you in the past or what you fear might happen in the future, anything we haven’t discussed that you think is important?
A.What I’m afraid is for the future of my children. If I have to return to Indonesia all these small incidents can become big and I can’t really speculate on this. Because things in Indonesia is like a time bomb, sometimes it can explode. What happened last year in May before this riot, when Suharto was in power it was never like that, after Suharto, these small incidents happen it’s all right but once it’s explode is a lot of victims. What happen if I have to return and this incident happen again what is supposed to happen to my family.
Q65.In terms of another riot, you’re saying?
A.Yeah.
Q66.Yes, I’ll be thinking about that very carefully because that is obviously something that you’re quite understandably very worried about?
A.Because my two children are my future, what happen if they’re killed or persecuted?
Q67.I’ll hear from your wife now and then afterwards I’ll bring you back in and I’ll just explain to you what happens next. You might think of something else in the meantime that you forgot to tell me, if you want to tell me you’ll have a chance to do that then. I’ll just show you out and I’ll ask your wife to come in. Perhaps you could go and get her?”
The Tribunal then interviewed the female applicant and after obtaining her personal story said at [T20]:
“The situation has developed since you left so that it seems that ethnic Chinese are no longer the targets of military orchestrated violence in Java. That’s the evidence I would like you to comment on.
A.Even though I came here in June 1998 and I read from the newspaper when President Habibe was interviewed by ABC that he promised to protect Chinese citizens in Indonesia and all citizens has the same right, but it is just talk. There are still accidents that happen and they didn’t really prosecute the incidents they just ignore it. Even though they promise the Indonesians but what happen is because we live there every day we still fear things will happen again.
Q20.There is some evidence, just let me find this, there is a magazine called Tapol Bulletin, I don’t know if you know it.
A.Maybe the magazine was published after I left Indonesia.
Q21.It has reported that rioters were prosecuted and sentenced after the riots last year and there has been other evidence that, I’m just trying to find it, sorry, yes, officers who failed to prevent the riots were removed from their posts after the riot. So it seems that the authorities are not encouraging anti-Chinese violence anymore and that at least some parts of the government have tried to make sure that those sections of the military which were not doing their job properly have been removed from their positions. I’m not saying these terrible things didn’t happen, I’m just saying I’m not sure from this evidence that there’s a real chance that there’s going to be another riot in Jakarta in the reasonably foreseeable future in which ethnic Chinese are going to be particularly targeted. So is there anything you’d like to say?
A.I feel as if, if I have to return, because if the government promise is just talk, a hundred and sixty-eight women were raped in the riot in May but the government said they will do nothing because apparently nobody reported to the authorities until one of them report it. She was going to be a witness in America but before she went was killed in October.”

There was tendered at the hearing a copy of a letter from the Secretary of the Department of Immigration and Multicultural Affairs dated 24 June 1998 to the Registrar of the Refugee Review Tribunal, providing the Tribunal with certain submissions on the effectiveness of the protection provided by the Indonesian Government for ethnic Chinese Indonesian applicants for Australia protection visas. This information was provided pursuant to s.423(2) of the Act. That section is in the following form:
“s.423 Documents to be given to the Refugee Review Tribunal
(1) An applicant for review by the Tribunal may give the Registrar:
(a) a statutory declaration in relation to any matter of fact that the applicant wishes the Tribunal to consider; and
(b) written arguments relating to the issues arising in relation to the decision under review.
(2) The Secretary may give the Registrar written argument relating to the issues arising in relation to the decision under review.”
That representation was referred to by the Tribunal at [CB 69] under the heading “State Responses” where it stated:
“Since President Habibie took over in May 1998 the Military “have made public statements indicating their determination to protect the ethnic Chinese, have replaced some military leaders to ensure this occurs and have made public instructions that further unrest will be firmly handled” (submission provided to the Tribunal on 24 June 1998 by the Secretary of the Department of Immigration and Ethnic Affairs under s.423(2) of the Act).”
It also made reference to this submission at [CB 67].
It is not disputed that the various matters and documents referred to in the particulars of the amended application were not directly put to the applicant. The question is whether or not this failure constituted a breach of the requirement to provide a party with procedural fairness. The starting point for the applicant is the principle expressed by the High Court in Kioa v West (1985) 159 CLR 550 that there is a common law requirement for an administrative decision maker to adopt fair procedures:
“In the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made.” Kioa v West at [628];
and the decision of the Full Bench of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1994) 49 FCR 576 at [591]:
“Where the exercise of a statutory power attracts the requirement for procedural fairness a person likely to be affected by the decision is entitled to put information and submissions to the decision maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information and comment by way of submission upon adverse material from other sources which is put before the decision maker.”
In regard to the submission made by the Minister the applicants argue that the failure to disclose that one had been made when it was likely, in the ordinary course, to be accorded great weight, was an additional failure to accord the applicants procedural fairness, the applicants cited from the decision of the High Court in Applicant VEAL of 2002 v Minister for Immigration [2005] HCA 72 at [14]:
“As these reasons will show, it is not useful to begin the inquiry about procedural fairness by looking to what the Tribunal said in its reasons. Rather, as procedural fairness is directed to the obligation to give the appellant a fair hearing, it is necessary to begin by looking at what procedural fairness required the Tribunal to do in the course of conducting its review.”
The respondent submits, and I accept, that procedural fairness does not require that the “source and nature of all material that comes before the decision maker must be disclosed” Muin v Refugee Review Tribunal (2002) 190 ALR 601 at [123] per McHugh J. What the Tribunal was obligated to do was to put the substance of the relevant country information to the applicants and seek their response NAOA v Minister for Immigration [2004] FCAFC 241 at [23-26] and Muin, supra, at [267]. The respondent argues that the matters revealed in the information that was not disclosed to the applicants was nothing more than an iteration of those matters concerning the changes that have occurred in Indonesia put by the Tribunal in general terms to the applicants at hearing, which have been extracted in these reasons. In order to ascertain whether this is in fact so it is necessary to look at each of the individual matters in turn.
The first piece of information concerns the newly elected President Wahid. President Wahid was elected to that position on 20 October 1999, two weeks after the Tribunal hearing. That information cannot be said to be information that was:
“In the public domain and likely to be known to the applicant VHAP v Minister for Immigration [1003] FCA 448 at [18] affirmed in VHAP of 2002 v Minister for Immigration [2004] FCAFC 82.”
The applicant would argue that this piece of information was similar to the information concerning the change in government which had not been put to the applicant in Minister for Immigration; Ex Parte MIAH (2001) 179 ALR 238 where McHugh J said at [142]:
“Here the new material was undoubtedly decisive of the prosecutor’s claim. The material was totally new. The election took place in Bangladesh more than two months after the application was made in April 1996. The reports relied on by the delegate were issued three months and nine months respectively after the application was made. The delegate’s decision was made more than 13 months after the date of the application. But over and above these considerations is the fact that it was seemingly irrelevant to the prosecutor’s fears whether or not the Awami League or the BNP were in government. Both political parties were arguably unable or unwilling to offer the prosecutor protection from the Islamic fundamentalists – according to the prosecutor they were in coalition with them. This was made clear in the prosecutor’s application. It was also apparent from one of the very reports that the delegate relied on in using the material. Furthermore, the prosecutor could not reasonably have expected this type of information to be used. Certainly, he could not reasonably have been been expected to provide information about a matter that he reasonably perceived as irrelevant to his situation. In other words, this is a case where “the requirements of procedural fairness may be of added importance … in that they ensure an opportunity of raising for consideration matters which are not already obvious (Kioa v West, supra).”
I do not consider that this information is in the same class as that discussed in Miah. In M1015/2003 v Minister for Immigration [2004] FCA 1309 Weinberg J stated at [54]:
“Where the decision maker has relied on adverse information, without providing any opportunity to comment upon it, the question whether the decision is vitiated will depend upon a range of factors. These include the importance of the material to the ultimate decision, as well as the nature of that material. Some information is purely factual and entirely incontrovertible. There may simply be no answer to it. Other information may involve a combination of fact and opinion, and may be contentious. In relation to information of that kind, the denial of the opportunity to comment upon it may give rise to procedural unfairness.”
It is the comment by Paul Kelly in the information that was used that might give rise to a requirement that it be put to the applicant. The information was important corroborative evidence that the views expressed by the Tribunal that things have changed in Indonesia for the better so far as Chinese Indonesians were concerned was a continuing phenomena. As such it was information that was material to the ultimate decision. But I am of the view that the hypothesis propounded by the Tribunal, namely that things had improved, was not a matter that was really in contention. It seems to me that having read the transcript carefully that the furthest the applicant goes is to say:
“I am not going to trust the Indonesian Government any more because even after Habibie is in power things still happen in Ambon, a lot of Christians were killed, that happened in 1999 …”
I am of the view that the applicants had no objective evidence to controvert the evidence being put by the Tribunal. The reliance that they placed upon problems in other areas did not really speak to the situation of ethnic Chinese. That was the issue. In regard to these persons various important statements hade been made and by the time the proceedings got to the Tribunal there was clear evidence that the promises made were being implemented. I am of the view that the fundamental issue, the treatment of Chinese Indonesians post May 1998, was squarely put to the applicants and they had every opportunity to persuade the Tribunal that its evidence was not reliable.
The second statement referred to ethnic riots in Indonesia and that the last riot in Jakarta was in November 1998 and that Java had been relatively quiet since that time. I think this statement falls squarely within the definition of a statement that is purely factual and entirely incontrovertible. In any event it merely describes a situation that had existed by the time the applicants appeared before the Tribunal. I cannot see how procedural fairness requires that this statement be put to the applicants for comment.
The third matter relates to a June 1999 report in the South China Morning Post which noted that numerous rumours of planned attacks on ethnic Chinese had rarely materialised. I take the view that this information is also no more than a gloss on the matters put by the Tribunal to the applicant and there was no obligation to request that the applicants comment upon it. This report does contain some comment and I think that is comprehended in the reference by the Tribunal at [P13] to the fact that there had been no reports of any serious anti-Chinese or anti-Christian riots in Jakarta during this year.
The fourth matter is that the police and military had responded to and quelled riots in the past. This, like the previous two pieces of information, are found at [CB 67]. This was a report that came out of various newspapers all of which were prior to the hearing. One thing that was debated between the Tribunal and the applicant was the attitude of the army. The applicant had firm views about the army. He did not believe that the government was in control and expressed those views at the hearing. I cannot see, in the circumstances of this debate, that the Tribunal was obliged to put every single piece of information it had to support its views that the army was now compliant.
Finally, we come to the DIMIA submission to the Tribunal, the relevant parts of which related to the level of internal instability in Indonesia and the fact that this had settled down since the resignation of President Suharto. I am troubled that the Tribunal did not reveal to the applicants that it had a direct submission from DIMIA made under s.423(2). There can be little doubt that objectively such information would be perceived to be of high importance and influential in any decision. But the information was over a year old by the time these applicants went before the Tribunal. The gravamen of the information was put to them and they had an opportunity to give evidence to the Tribunal which would satisfy it that the improvements spoken about had not taken place, and that there was a real danger to persons of Chinese ethnicity if they were returned at that time or in the reasonably foreseeable future. I think this information was clearly put to the applicants by the Tribunal and responded to as best they could.
In VHAP of 2002v Minister for Immigration [2004] FCAFC 82 at [27] Allsop J put it thus:
“[27] Natural justice and the analysis of whether, in any case, it was afforded is not a process of syllogistic reasoning. One does not approach it thus: the person is entitled to adverse material, this material was relied on in reaching an adverse result, that makes it adverse material, it was not provided in terms, therefore there has been a failure to afford natural justice.
[28] Natural justice is ultimately a question of fairness. The appellant here came to the Tribunal armed with her material about her country of origin in order to persuade the Tribunal to reach a state of satisfaction about her, China, and her future: that she had a well-founded fear of persecution for a Convention reason should she be required to return to China. In order to perform the task required of it by ss36 and 65 of the Migration Act 1958, the Tribunal was required to inform and educate itself about China generally, and about aspects of Chinese life and affairs pertinent to the appellant’s claims. In so analysing that material the Tribunal might form a view about the appellant or her version of events, which fairness dictated, must be raised. That was done here. The Tribunal will often have a store of experience and knowledge about the country in question without the need for specific reference to material. Sometimes, as here, it will reach for specific material for assistance. In doing so it was only informing itself of matters against which to assess the claims of the appellant. If, as here, subjects of concern are raised, I do not see how fairness requires provision of the specific text of country information seen to be of relevance.”
It seems to me that the parallels between VHAP and the matter before me, insofar as there were concerns relating to the provision of procedural fairness, are substantial. No two cases are exactly similar, but in both of these the Tribunal had information that was directly relevant to the issues in question concerning the countries of origin of the applicants and put the gravamen of those matters to them. The Tribunals decided the cases by preferring the evidence which they had to the submissions and evidence of the applicants. The Tribunals concluded that the applicants had not satisfied them as required by s.65 of the Act. Not every detail of the evidence the Tribunals had in their possession was put to the applicants but they were made aware that there was evidence that led to concerns which would negate the existence of a well founded fear. I believe that in doing this the Tribunals acted fairly and of course I am supported in that view by the decision of the Full Bench of the Federal Court in VHAP.
It follows from the above that I am unable to say that the Tribunal fell into jurisdictional error in the manner in which it reached its decision in this case. I dismiss the application. I order that the applicants pay the respondent’s costs which I assess in the sum of $5,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:

CORRECTIONS

Paragraph 7, Line 6 – delete “s.424A”. The sentence now reads: “The Tribunal decision was made before the coming into effect of s.422B of the Migration Act 1958 (the “Act”) and it is accepted by the Minister that the ordinary rules of procedural fairness are to apply.”.