SZGHC & Anor v Minister for Immigration & Citizenship
[2007] FMCA 570
•7 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGHC & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 570 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visas – applicants claiming religious persecution in Indonesia – whether the Tribunal overlooked or failed to deal with an element of the applicants’ claims considered – whether the Tribunal breached s.424A considered – whether the Tribunal needed to consider whether the standard of protection in Indonesia met “international standards” considered. |
| Migration Act 1958 (Cth), ss.57, 65, 417, 422B, 424A Migration Legislation Amendment Act (No 1) 1998 (Cth) |
| Applicant A v Minister for Immigration (1997) 190 CLR 225 Kandasamy v Minister for Immigration [1999] FCA 1085 M1015/2003 v Minister for Immigration [2004] FCA 1309 Minister for Immigration v NAMW (2004) 140 FCR 572 Minister for Immigration v Prathapan (1998) 156 ALR 672 Minister for Immigration v Respondents S152/2003 [2004] HCA 18 Minister for Immigration v Tas [2000] FCA 1657 Re Minister for Immigration; ex parte Miah (2001) 197 ALR 238 Muin v Refugee Review Tribunal (2002) 190 ALR 601 MZ Raj v Minister for Immigration [2004] FCA 1261 NABE v Minister for Immigration (No 2) [2004] FCAFC 263 NAOA v Minister for Immigration [2004] FCAFC 241 NARV v Minister for Immigration (2003) 203 ALR 494 Osman v United Kingdom (1998) 29 EHRR 245 S1573 of 2003 v Minister for Immigration [2005] FMCA 47 SGNB v Minister for Immigration (2003) 132 FCR 192 SZBBP v Minister for Immigration [2005] FCAFC 167 SZFRG & Ors v Minister for Immigration [2006] FMCA 1165 SZJLM v Minister for Immigration & Anor [2007] FMCA 287 Thiyagarajah v Minister for Immigration (1997) 73 FCR 176 VHAJ v Minister for Immigration (2003) 75 ALD 609 VAAC v Minister for Immigration (2003) 129 FCR 168 VHAP of 2002 v Minister for Immigration [2004] FCAFC 82 Woen v Minister for Immigration [2000] FCA 1912 |
| First Applicant: | SZGHC |
| Second Applicant: | SZGHD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1227 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 17 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 7 May 2007 |
REPRESENTATION
| Solicitors for the Applicant: | Mr N Dobbie Parish Patience Immigration Lawyers |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Court directs that the title of the first respondent be amended to the Minister for Immigration & Citizenship.
The application is dismissed.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15 and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1227 of 2005
| SZGHC |
First Applicant
SZGHD
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 3 April 2001. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas.
The applicants are a husband and wife from Indonesia. The following statement of background facts is taken from the Minister’s written submissions. The applicants arrived in Australia on 12 August 1999. The first applicant applied for the visa on 21 December 1999: court book, pages 1-36. The delegate refused the visa on 11 April 2000: court book, pages 39-52, and the first applicant applied to the Tribunal for review on 9 May 2000: court book, pages 53-56. The second applicant applied for the visa on 18 August 2000: court book, pages 61-90, was refused by a delegate on 24 August 2000: court book, pages 93-101, and applied to the Tribunal for review on 22 September 2000: court book, pages 102-105. At the applicants’ request (court book, pages 112-113) the Tribunal held a joint hearing on 5 March 2001: court book, pages 119-119, and gave a decision covering both applications.
No issue is taken concerning the conduct of a joint hearing.
Both applicants claimed to fear persecution in Indonesia for reason of their Christian religion and Chinese ethnicity. Neither claimed to have been personally harmed in Indonesia, including on their visit there for a month in 1999. The Tribunal accepted that the applicants had faced threats and insults, but found that these were not sufficiently serious to amount to “persecution”. The Tribunal also found that the applicants’ fears of persecution in the future were not well founded, noting country information concerning positive changes in Indonesia since the 1998 riots and that neither the Applicants nor their relatives had experienced harm in Indonesia. See generally court book, pages 138-140.
The judicial review application
The present proceedings began with a judicial review application filed on 12 May 2005. The applicants now rely upon an amended application filed in court by leave on 17 April. It appears that a copy of the amended application was served on the Minister’s solicitors some months ago because counsel for the Minister dealt with it in his outline of submissions filed on 1 December 2006. There was no objection to the applicants relying on the amended application filed in court by leave today.
The amended application sets out the following grounds:
1.The Refugee Review Tribunal constructively failed to exercise its jurisdiction under the Act.
Particulars
A.The Refugee Review Tribunal failed to ask a question it was required by law to ask
(i)The Refugee Review Tribunal failed to ask whether the Applicants, as evangelistic Chinese Christians, faced a well-founded fear of persecution in Indonesia for a Refugees Convention reason or reasons, or a combination thereof.
B.The Refugee Review Tribunal failed to consider and make a finding in relation to the Applicant’s claims
(i)The RRT failed to consider and make a finding in relatin to the Second Applicant’s claim that they would be persecuted as Christians of Chinese ethnicity.
(ii)The RRT failed to consider and make a finding in relation to the Second Applicant’s claims (express or implicit in their evidence) that they would be persecuted as evangelistic Christians.
(iii)The RRT failed to consider and make a finding in relation to the Applicants’ claims (express or implicit in their evidence) that they would be persecuted as evangelistic Christians of Chinese ethnicity.
C.The Refugee Review Tribunal failed to accord the Applicants procedural fairness
(i)The RRT failed to put to the Applicants the following information that it relied on to find that the Applicants are not refugees:
(a)Information contained in DFAT Report 0257, 26 November 1999 that the then current Indonesian government should have positive implications for Indonesia’s diverse ethnic, racial, religious and social groups as it is led by a president with a reputation for tolerance, moderation and commitment to human rights and democracy. (cited at CB 135-136 and relied on at CB 139)
(b)That the assessment stated at (a) above was given by DFAT. (CB 139)
(c)That the assessment stated at (a) was consistent with that of other commentators (cited at CB 136 and relied on at CB 139).
D.The Refugee Review Tribunal failed to comply with s.424A
(i)The Tribunal failed to give the requisite written notice to the Applicants in relation to information it had that President Wahid had reassured minorities and ethnic Chinese that he would guarantee their security and interests. (CB 138-139)
(ii)The Tribunal failed to give the requisite written notice to the Applicants in relation to information it had that President Wahid was a president with a reputation for tolerance, moderation and commitment to human rights and democracy. (CB 139)
E.The Refugee Review Tribunal erred in its interpretation and application of the applicable law
(i)the Tribunal erred in the interpretation and application of the test to determine whether there is effective state protection in Indonesia available to the Applicants:
(a)the Tribunal’s test in relation to state protection was erroneous in that it was premised on whether there was a reasonable willingness on the part of the authorities to detect, punish and prosecute offenders, with the consequence that it failed to determine if the standards of protection that Indonesia could offer met the standards of protection required by international standards, as set out in MIMA v Respondents S152/2003 [2004] HCA 18.
Evidence and submissions
I received as evidence an affidavit by the second applicant made on
12 May 2005 and filed on the same day. The affidavit annexes a number of documents, most importantly, a transcript of the hearing conducted by the Tribunal on 5 March 2001. I also have before me the court book filed on 8 June 2005. Both the applicants and the Minister took the opportunity to file written submissions and representatives for both parties made oral submissions at the trial of this matter on
17 April 2007.
The first two grounds in the application are related. The applicants contend that the Tribunal failed to consider the cumulative impact of their claims of religious and ethnic persecution and, further, failed to deal with the applicants’ claim that they were not simply Christians but were evangelical Christians. The Minister contends that the applicants did not claim to be evangelical Christians and that, neither was it part of their claims that the cumulative impact of their ethnicity and their religion needed to be considered.
In relation to the claim of procedural unfairness, the applicants contend that the Tribunal relied upon significant country information in a Department of Foreign Affairs and Trade (DFAT) cable and that crucial elements of the cable were not put to them (in particular the fact that the information came from DFAT and the fact that characteristics personal to the then newly elected President Wahid were of importance). The applicants further contend that procedural fairness required the proposition that the DFAT assessment was consistent with that of other commentators to be put to the applicants. The Minister contends that the Tribunal discussed the gravamen or substance of the relevant country information with the applicants at the Tribunal hearing and was not required to do more. The Minister contends that the applicants have not shown that the proceedings before the Tribunal were in fact unfair. In particular, the applicants have presented no evidence that they would have been able to put anything to the Tribunal in response to the disclosure of the details in issue.
The fourth ground is an asserted breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”). The applicants contend that the Tribunal breached s.424A in failing to disclose information about President Wahid on which it relied. The applicants contend that personal information about President Wahid is not exempted from disclosure pursuant to s.424A(3)(a). The Minister contends that the information in issue is clearly information falling within the exception in s.424A(3)(a).
The final ground of review is that the Tribunal erred in applying the test of the availability of effective State protection. The applicants contend that, notwithstanding that the Tribunal decision was made prior to the decision of the High Court in Minister for Immigration v Respondents S152/2003 (2004) 222 CLR 1 the Tribunal needed to consider whether the standard of protection available from the Indonesian authorities met “international standards”. The Minister contends that the Tribunal performed its duty in considering whether effective State protection would be available to the applicants in the circumstances recognised by the Tribunal. In oral submissions counsel for the Minister submitted that the High Court decision in S152 did not establish a new test for considering the adequacy of State protection and that the consideration of the issue by the Tribunal was consistent with accepted principles.
In addition, the Minister submits that, given that the applicants delayed for more than a year commencing the present proceeding after the termination of their participation in the Muin & Lie class action, even if jurisdictional error were to be established, prerogative relief should be refused in the exercise of judicial discretion. The applicants contend that account should be taken of the fact that over this period the applicants were seeking Ministerial intervention pursuant to s.417 of the Migration Act but the Minister responds that that is not a sufficient excuse for delay.
Reasoning
First and second grounds
I accept that at the Tribunal hearing the applicants identified themselves as Chinese Christians who were involved in evangelism: transcript at pages 8, 9 and 11. Unfortunately, the applicants did not go into much detail about what they meant by evangelism. References on page 9 of the transcript are to spreading the gospel and caring for the sick. The applicants made no claim that they would proselytise, especially with the aim of converting adherents from other religions. “Evangelise” has several meanings including “to preach the gospel” and “to convert to Christianity”[1]. It is unclear from the applicants’ evidence whether their evangelical activities were restricted to members of an existing congregation or extended to non believers. I find that no claim of proselytisation was expressly made or squarely arose on the available material.
[1] Macquarie Dictionary, 3rd Edition
The Tribunal accepted that the applicants were “devout” and “active” Christians (court book, pages 138-139). I take this to be a recognition by the Tribunal of the applicants’ evangelical activities, vague though they were.
I find, on the facts, that the Tribunal did not fail to ask whether the applicants, as evangelical Chinese Christians, faced a well-founded fear of persecution in Indonesia.
I also reject the claim that the Tribunal needed to consider the cumulative impact of the applicants’ religious and ethnic claims. The Tribunal does not need to consider the cumulative impact of individual claims unless that itself is an element or integer of an applicant’s claims[2]. Such a claim needs to be clearly articulated or squarely arise from the available material: NABE v Minister for Immigration (No 2) [2004] FCAFC 263 at [68]. Federal Magistrate Smith dealt with a factually similar claim in S1573 of 2003 v Minister for Immigration [2005] FMCA 47 at [18]-[20]. I note that the applicants in that case were represented by the same solicitors as in this case. This case is, in my view, indistinguishable from S1573. The applicants do not contend in this case that they needed to be considered as members of a particular social group. However, they do contend that the cumulative impact of their claims of religious and ethnic persecution needed to be considered. I see nothing in the court book or the transcript setting out the articulation of the applicants’ claims to justify that contention.
[2] SZJLM v Minister for Immigration & Anor [2007] FMCA 287
Ground 3 – procedural fairness
I accept that, at the time the Tribunal decision was made, the Tribunal was obliged to afford procedural fairness to the applicants under the general law. The issue here is whether the Tribunal sufficiently disclosed country information upon which it relied. The relevant country information is set out on pages 135 and 136 of the court book. It is a DFAT report referring to the election of President Wahid and the positive implications of that election for Indonesia’s diverse, ethnic, racial, religious and social groups. The cable refers to President Wahid’s domestic and international reputation for religious tolerance and moderation. The cable made a positive assessment of the future influence of President Wahid. The positive tone of the cable was maintained notwithstanding an acknowledgement that ethnic and religious disputes persisted in Indonesia.
The Tribunal used the DFAT information to support its conclusion that the applicants’ fear of persecution in Indonesia as Chinese Christians was not well-founded. The Tribunal said (court book, page 138):
The applicants claimed that the ethnic Chinese and Christians have been the targets of violence and referred in particular to the riots of mid 1998. The Tribunal acknowledges that the incidents of mid 1998 affected the ethnic Chinese in particular but notes that the number of people affected was small in the context of the Indonesian population and included not just members of minorities but also indigenous Indonesians, rioters and bystanders. However, as country information indicates (pp9-13), the situation in Indonesia has undergone many positive changes since then. There have been two changes of government; there has been a political awakening among Indonesian minorities and a response towards them on the part of political parties. Independent sources indicate that the current government has pledged to support minorities and the ethnic Chinese and has already commenced to remove measures that discriminate against them. President Wahid has reassured them that he will guarantee their security and interests. According to DFAT, the current government should have positive implications for Indonesia’s diverse ethnic, racial, religious and social groups as it is led by a President with a reputation for tolerance, moderation and commitment to human rights and democracy. DFAT’s assessment is consistent with that of other commentators. In addition, the severe economic crisis which played a key part in the events of mid 1998 has somewhat eased. Although incidents of violence have continued to occur these seem to be sporadic and random. Also incidents in Jakarta do not seem to be neither race related or necessarily for religious reasons. More importantly, the authorities seem to be making genuine efforts to stop and prevent eruptions of violence and unrest. In essence, the above information indicates that the chance of harm for members of the ethnic Chinese and non-Muslim minorities in the foreseeable future is remote. The Tribunal therefore finds that, in view of the changes in Indonesia, the chance that the applicants will suffer serious harm for reason of their ethnic background, religion or other Convention reason is remote and therefore not well-founded.
There was some disclosure of the country information at the Tribunal hearing: transcript, pages 3, 18, 19 and 22. The presiding member disclosed her view that the situation in Indonesia had changed a lot between 1998 and 2001. In particular, the presiding member referred to political developments, including the election of Presidents Habibie and Wahid. The presiding member referred to the government then in power as “moderate, reformist and anti-sectarian”. The presiding member stated her view that the Indonesian government had pledged to defend the Chinese and other minorities in Indonesia. At page 22 of the transcript the presiding member said:
But you saw what happened, I mean, in the election of Wahid. First of all, the Chinese became much more empowered about their situation. There was a real political awakening. And there was a real response towards them from the political parties. At the same time there was a realisation that the Chinese are needed in the economy in Indonesia. So some of that has shifted, I mean their value has been recognised.
I accept the Minister’s contention that procedural fairness does not require that the “source and nature of all material that comes before the decision maker must be disclosed”[3]. The obligation is to disclose the essential and significant details of the relevant information[4].
[3] Muin v Refugee Review Tribunal (2002) 190 ALR 601 at [123] per McHugh J
[4] NAOA v Minister for Immigration [2004] FCAFC 241 at [23]-[26]
In my view, this case is indistinguishable from SZFRG & Ors v Minister for Immigration [2006] FMCA 1165. I agree with and adopt with respect the findings by Federal Magistrate Raphael in that case at [17], [19] and [25]:
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.
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.
In VHAP of 2002 v 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.
Neither have the applicants been able to demonstrate that there was any practical unfairness in this case. There is no evidence of what, if anything, the applicants could have put to the Tribunal in answer to the country information relied on by it. I reject this ground of review.
Ground 4 – s.424A
The leading authority concerning the operation of the exception in s.424A(3)(a) is Minister for Immigration v NAMW (2004) 140 FCR 572 at [64]-[74] and [112]-[138]. That decision has been applied in numerous decisions since. Relevantly, in that case, the Full Federal Court said at [126]-[132]:
The second area of controversy relates to whether s 424A(3)(a) contains two criteria, namely that the information is not specifically about the applicant or another person and is just about a class of persons of which the applicant and the other person is a member, each of which must be satisfied. The alternative view is that the reference to the class of persons is not another criterion to be met but, rather, underlines the specificity required in respect of the applicant or another person by precluding any argument that reference to a class can be taken to be a reference to all individuals falling within it. The "two criteria" interpretation was adopted in VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 609 ("VHAJ") at 616-617 [25]-[29] per Moore J and 622-623 [46]-[48] per Kenny J; and NARV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 203 ALR 494 ("NARV") at 509 [30] per Ryan and Finkelstein JJ. The alternative interpretation was adopted in VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 ("VHAP") at [14] per Gyles and Conti JJ (with whom Allsop J agreed), VNAA at [32]-[33] per Gyles J, and is also favoured by Beaumont J at [68]-[71] in the present appeal.
In order to resolve the controversy it is appropriate to consider the legislative history of s 424A. The genesis of the section can be found in s 57 of the Act which established a similar procedure for the delegate of the Minister in respect of information that is required to be given to a visa applicant. Section 57 provides:
(1) In this section, relevant information means information (other than non-disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for refusing to grant a visa; and
(b) is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and
(c) was not given by the applicant for the purpose of the application.
(2) Subject to subsection (3), the Minister must:
(a) give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and
(c) invite the applicant to comment on it.
(3) This section does not apply in relation to an application for a visa unless:
(a) the visa can be granted when the applicant is in the migration zone; and
(b) this Act provides, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa.
To the extent that s 57 applies it partly enacts a basic principle of the common law rules of natural justice that a person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with information adverse to his or her interests that the repository of the power proposes to act upon in deciding upon its exercise: see Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 ("Miah") at 96-97 [139]-[140] per McHugh J. However, the statutory procedures the Minister (or his or her delegate) were required to follow did not exclude the application of the common law rules of natural justice: see Miah at 83-88 [90]-[104] per Gaudron J, 95-98 [131]-[143] per McHugh J and 111-115 [178]-[188] per Kirby J. The information included under s 57(1)(b) is information "specifically about the applicant or another person". Thus, the exclusion in respect of the class of persons of which the applicant or another person is a member merely ensures that information about that class is not treated as information specifically about the applicant or the other person.
When s 424A (and its counterpart in respect of the Migration Review Tribunal, s 359A) was enacted by the Migration Legislation Amendment Act (No 1) 1998 it was clear that the legislature intended to introduce a procedure for both the RRT and the Migration Review Tribunal that was similar to that which applied to decisions by the Minister (or his or her delegate): see the Second Reading Speech, Commonwealth, Parliamentary Debates, House of Representatives, 2 December 1998, 1122 (Phillip Ruddock, Minister for Immigration and Multicultural Affairs) at 1123. Importantly, the Explanatory Memorandum at [117] states:
[The Amending Act] also inserts six new sections into the Migration Act. Of these sections 424, 424A, 424B and 424C provide a code of procedure which the [Refugee Review] Tribunal is to follow in conducting its review:
...
new section 424A ensures that an applicant is given particulars of any information that would be the reason or part of the reason for affirming the decision under review, and is asked to comment on that information. The information must be specifically about the applicant or another person and not just about a class of persons of which the applicant or the other person is a member. Paragraphs 424A(3)(b) and (c) provides respectively that information given by the applicant and non-disclosable information are not included in this section;" [Emphasis added]
Although the Explanatory Memorandum makes it quite clear that the information that must be provided under s 424A was intended to be equivalent to the information required to be given under s 57, for some reason s 424A was drafted quite differently to s 57. Rather than employ the simple expedient of requiring that the information that is to be provided must be information that would be a reason for the decision and is specifically about the applicant or another person, s 424A required that particulars of the information described in s 424A(1) is to be provided unless it is excluded under s 424A(3). In our view that exclusionary approach resulted in the literal meaning of ss 424A(1) and 3(a) not being equivalent to s 57(1)(b). The reason for that is that a literal interpretation of s 424A(3)(b) requires that both of the two criteria stipulated in the sub-section be met for the exclusion to apply.
Counsel for the respondents submitted that the two criteria approach gives effect to the ordinary and natural meaning of the words used in s 424A(3)(a) and that if the legislature had wished to replicate s 57 it would have been a simple matter for it to do so. Although there is some force in that submission it is difficult to see any rationale for excluding from the operation of s 424A information which is just about a class of persons of which the applicant or the other person is a member, but not excluding such information if those persons were not members of the class. Yet, the two criteria approach has that anomalous result.
Four factors have led us to conclude that by enacting s 424A (and s 359A) Parliament intended to substantially replicate the effect of s 57(1). First, that is clearly stated as the intention in the Explanatory Memorandum. Second, the literal meaning of s 424A, as drafted, would result in the anomalous outcome described above. Third, the procedural "code", of which s 424A formed part, did not exclude the rules of natural justice: see Miah and VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 at 178 [30]. Thus, it was not unreasonable or anomalous for the legislature to require that, in so far as s 424A formed part of that procedural code, the section was only to apply to information specifically about the applicant or another person, leaving the rules of natural justice to apply to other information. While that situation may have changed as a result of the subsequent enactment of s 422B, which seeks to excludes the rules of natural justice at least in respect of matters dealt with in the procedural code relating to the conduct of reviews by the RRT, the later legislative amendment cannot affect the proper construction of s 424A, which has remained in its unamended form since it was enacted. Finally, there is no obvious reason why the legislature would seek to impose a substantially different mandatory disclosure requirement on the RRT to that imposed on the Minister (or his or her delegate).
In this case, although the information relied on by the Tribunal dwelt on the attributes of President Wahid, the information was essentially about the implications of his election for religious and ethnic minorities. The information was that the position of ethnic and religious minorities had improved significantly following the election of President Wahid. It is true that this was information about President Wahid but it was also information about a class of persons, including the applicants. That is, in my opinion, sufficient to attract the operation of the exception in s.424A(3)(a). I reject this ground.
Ground 5 – State protection
In relation to this ground, the applicants relevantly submit as follows:
The Tribunal’s test in relation to state protection was erroneous in that it was premised on whether there was a reasonable willingness on the part of the authorities to detect, punish and prosecute offenders,[5] with the consequence that it failed to determine if the standards of protection that Indonesia could offer met the standards of protection required by international standards, as set out in MIMA v Respondents S152/2003 [2004] HCA 18. This was particularly relevant because the Tribunal had before it country information that showed:
(1) that in practice, legal protections are both inadequate and widely ignored, and security forces continued to employ torture and other forms of mistreatment, particularly in regions where there were active security concerns, such as Aceh, Irian Jaya and East Timor. Police often resort to physical abuse, even in minor incidents.[6]
(2) that the authorities often engage in arbitrary arrest and detention.[7]
(3) that the judiciary is not impartial, instead being subordinated to the executive and the military.[8]
[5] court book, pages 139-140
[6] court book, page 309
[7] court book, page 313
[8] court book, page 315
Conversely, the Minister relies upon the decision of the Full Federal Court in SZBBP v Minister for Immigration [2005] FCAFC 167 and the factually similar case of S1573[9], in particular at [27]-[34]. There, Federal Magistrate Smith said:
[9] op cit
In its general discussion of the Refugees Convention, the Tribunal instructed itself that a fear of harassment from non State agencies would come within the Convention only if the harassment occurred in circumstances implicating the State of nationality in a failure to provide protection to the claimant. It said, “The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality”. In my opinion, this remains a legally correct identification of a question which must be addressed by a Tribunal when assessing fears of harm from non State agencies. It derives from an opinion expressed by Brennan CJ in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 233, which has recently (years after the present Tribunal’s decision) been cited with approval by Gleeson CJ, Hayne and Heydon JJ in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 (“Respondents S152/2003”) at [19]. A better or more authoritative description of this element has yet to emerge clearly from the High Court (c.f. Selway J in SGNB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 192 at [32-3]).
The present ground of appeal arises from another passage in the majority judgment in Respondents S152/2003. In that case, the respondents had claimed fear of persecution in the Ukraine due to being Jehovah’s Witnesses, and pointed to two assaults and some property damage. The Tribunal said that it was “not satisfied that the authorities can be said to be unwilling or unable to protect their citizens”, and that the incidents complained of “were individual attacks with different perpetrators being involved. The Tribunal further rejects his claims that the State is implicated through its manipulation of the media and that it is unwilling or unable to protect its citizens” (see [11] and [12]). Their Honours in the High Court rejected an opinion given in the court below that the Tribunal had erred by not giving “specific consideration of the State’s ability, in a practical sense, to provide protection” (see [16]). In the course of explaining their reasons, they said:
26.No country can guarantee that its citizens will at all times, and in all circumstances, be safe from violence. Day by day, Australian courts deal with criminal cases involving violent attacks on person or property. Some of them may occur for reasons of racial or religious intolerance. The religious activities in which the first respondent engaged between May and December 1998 evidently aroused the anger of some other people. Their response was unlawful. The Ukrainian state was obliged to take reasonable measures to protect the lives and safety of tis citizens, and those measures would include an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system. None of the country information before the Tribunal justified a conclusion that there was a failure on the part of Ukraine to conform to its obligations in that respect.
27.In fact, there was no evidence before the Tribunal that the first respondent sought the protection of the Ukrainian authorities, either before he left the country or after he arrived in Australia. According to the account of events he gave to the Tribunal, he made no formal complaint to the police, and when the police interviewed him after the first attack, he made no statement because he could not identify his attackers. The Tribunal considered the response of the police on that occasion to be appropriate. It is hardly surprising that there was no evidence of the failure of Ukraine to provide a reasonably effective police and justice system. That was not the case that the first respondent was seeking to make. The country information available to the Tribunal extended beyond the case that was put by the first respondent. Even so, it gave no cause to conclude that there was any failure of state protection in the sense of a failure to meet the standards of protection required by international standards, such as those considered by the European Court of Human Rights in Osman v United Kingdom (1998) 29 EHRR 245.
Counsel for the applicants submitted that in the last sentence of [27] their Honours implied that the likely State response to the risk of third party harms must be found to “meet the standards of protection required by international standards” before it could be found to be “adequate” or “effective” or to establish the “ability and willingness” of the State to protect the person fearing persecution.
In my opinion, this submission misunderstands the fundamental question which is being addressed by a Tribunal in such a case. This is whether the Tribunal is satisfied that the person fearing harms will not receive State protection, not that he will receive it. From this misunderstanding, the submission misunderstands the point made by their Honours in Respondents S152/2003. They said no more [than] that if there had been evidence before the Tribunal that in the circumstances feared the State response would not “meet international standards”, then this might have provided evidence suggesting a failure of State protection. They cannot be understood to suggest that in all cases a Tribunal must conclude that such a failure would occur unless it found compliance with international standards. I cannot understand their Honours to suggest that in every case it is either necessary or possible to identify “international standards” against which to assess an individual country’s responses, for example, to communal rioting.
In the present case, counsel for the applicants was unable to point to material before the Tribunal which showed that the anticipated responses of the Indonesian Government to future anti Chinese rioting in Jakarta would not meet an international standard. He tried to do so by reference to a US report criticising the Indonesian judiciary in 1998 and the treatment of persons detained on political grounds. However, this material was irrelevant to the claims of the present applicants. I had difficulty imagining what evidence could have been located by the Tribunal to show what are the relevant “international standards” against which the Indonesian government’s response to communal rioting should be judged, and counsel for the applicants was unable to give illumination.
Moreover, in the present case, the Tribunal went further than the Tribunal in Respondents S152/2003. It made a positive finding at [43] which I have referred to above that “the Indonesian government did, and in the future can be expected to, protect the applicants and the population against such harm” [i.e. “communal dissatisfaction” and “discriminatory policies and practices”], and made its own favourable assessment of the protection likely to be given to the applicants if rioting recurred:
46.I find that, if riots do recur, the response of the police and military will be adequate to provide the population, including the applicants, with protection. In this context, it is not necessary that the government can guarantee protection. It is sufficient that the government has in place the structures and the political will to respond appropriately to communal violence (MIMA v Prathapan (1998) 156 ALR 672 at 680 681).
47.Further, even if the Indonesian authorities could not prevent the harassment of the applicants, it does not follow that the nature and extent of the protection provided by the Indonesian authorities was inadequate (Kandasamy v MIMA [1999] FCA 1085, Moore J, 12 August 1999). The independent evidence which I have considered satisfies me that the Indonesian government in 1998 took appropriate action, within the parameters of its resources, to quell the violence and protect its citizens and that, if such rioting were to recur, the government would again act to protect its citizens, including the applicants. I am satisfied that the capacity of the authorities to respond to any recurrence of rioting has been enhanced by the changes introduced to the police and the military by President Wahid.
48.The present outbreaks of communal violence in some parts of Indonesia, primarily Aceh, Ambon, parts of Kalimantan, Lombok, and Irian Jaya, are all referable to separatist movements based either on ethnicity or religion. The applicants have not lived in any of these areas and are unlikely to do so if they returned to Indonesia. Although I accept the applicants’ claim that a Christian school in Jakarta was burned down in December 1999, I find that this was an isolated incident and, given that I have found no other evidence of communal violence associated with ethnic or religious separatist movements in Jakarta, I do not consider that this provides a sure indication of future patterns of communal violence in Jakarta. I find the chance that the present incidents of communal violence in parts of Indonesia would affect the applicants in Jakarta to be remote. In any event, I am not satisfied, for the reasons given above, that such communal violence constitutes persecution for a Convention reason and I find that the government of Indonesia is able and committed to protecting the population, including the applicants, from such violence.
I am not persuaded that the Tribunal made any error of law when reaching the above conclusions. I consider that the Tribunal made no error of law by reaching these conclusions in the absence of evidence showing that the Indonesian government would meet relevant “international standards” and a finding by the Tribunal on that topic.
A further reason for rejecting this ground for review is that the proposition that a “failure by a Tribunal in a non state agent case to consider international standards of protection necessarily involves jurisdictional error, whether or not that issue is raised by a claimant” was refuted by Heerey J in MZ Raj v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1261 (see [26]). I respectfully agree with all that his Honour said concerning the ratio decidendi of Respondents S152/2003 and the inherent difficulties in the proposition. I consider that I am bound by his Honour’s judgment to reject the present ground argued by the applicants.
I agree with Smith FM. In my view, properly understood, the observations of the High Court in S152 were not intended to establish a new test for determining the effectiveness of State protection. It would be wrong to conclude from those observations that a reference to international standards in any case is either a necessary or a sufficient consideration. The obligation on decision makers is to consider whether, at a practical level, effective State protection will be available to particular applicants. International standards of protection, if known, may inform that assessment but they cannot replace it. In the present case, the Tribunal said:
The applicants made claims about violence against Christians in Ambon and other parts of Indonesia. The Tribunal understands that this would be a concern to the applicants particularly as they are devout and active Christians. However, the focus of the Refugees Convention is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country. This is particularly relevant in their cases as they are from Jakarta and this is not one of the areas where there have been race and/or religious violence in recent times.
Finally, in relation to the applicants’ concern with the authorities’ capacity to protect Christians in reference to the bombings that took place in Indonesia on Christmas eve, the issue is not whether the authorities of a country are able to guarantee absolute protection from harm. In Thiyagarajah v MIMA ((1997) 73 FCR 176 at 179) the Court said that “'protection’ by no means implies that the authorities must, or can, provide absolute guarantees against harm”. This was reaffirmed in MIMA v Tas ([2000] FCA 1657) and Woen v MIMA ([2000] FCA 1912) which clarified that the real question for the Tribunal is whether there is a reasonable willingness on the part of the authorities to detect, punish and prosecute offenders and that no state can ensure the complete safety of all its citizens against all forms of harm, mistreatment or even death. Country information (pp12-13) indicates that the authorities of Indonesia are making genuine efforts to detect, punish and prosecute offenders. The information indicates that the authorities took precautionary measures at the time of the bombings to prevent similar happenings; that a number of bombs were diffused; that more than 110,000 police personnel were posted to maintain order, 18,000 troops were on alert; the government vowed to revamp its intelligence system and a number of arrests were made.
That assessment is, in my view, a legally sufficient assessment of the availability of effective State protection in Indonesia, both at the time the Tribunal decision was made and now. I reject this ground.
I conclude that the decision of the Tribunal is free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. It is unnecessary to consider the issue of the exercise of judicial discretion to refuse prerogative relief.
As to costs, the Minister has had to deal with an original and amended application and produce a court book of at least average length. Written submissions were prepared by counsel and the Minister was properly represented by counsel at the trial of the matter. The Minister was also represented by a solicitor at an earlier directions hearing. I see no reason to depart from the Court scale. I will therefore apply scale costs in this matter.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 7 May 2007
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