SZLCL v Minister for Immigration
[2008] FMCA 381
•28 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLCL v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 381 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdiction error – merits review not function of judicial review – country information – weight – whether applicant’s cultural background relevant – procedural fairness – whether apprehended bias. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 424, 424A, 425, 474 |
| Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 1599 Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 Randhawa v Minister for Immigration & Ethnic Affairs (1994) 52 FCR 437 Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 NADR v Minister of Immigration & Multicultural &Indigenous Affairs [2003] FCAFC 167 Abebe v Commonwealth of Australia (1998) 197 CLR 510 Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361 Minister for Immigration & Multicultural Affairs v S152/2003 [2004] HCA 18 Prahastona v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260 Minister for Immigration and Multicultural and Indigenous Affairs v Kord [2002] FCA 334; (2002) 125 FCR 68 Das v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 489; (2004) 208 ALR 229 VDAU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 32 Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 215 ALR 733 W321/A v Minister for Immigration & Multicultural Affairs [2002] FCA 210 Ahvazi v Minister for Immigration & Multicultural Affairs [2002] FCA 279 Kathiresan v Minister for Immigration & Multicultural Affairs (unreported) Federal Court, 4 March 1998 NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 SZHPD v Minister for Immigration & Citizenship [2007] FCA 157 SBBS v Minister for Immigration and Multicultural & Indigenous Affairs (2002) 194 ALR 749 ex parte H & Anor (2001) 179 ALR 425 Applicant A (1997) 190 CLR 225 SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63 |
| Applicant: | SZLCL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2291 of 2007 |
| Judgment of: | Orchiston FM |
| Hearing date: | 11 February 2008 |
| Date of last submission: | 11 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 28 March 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms A. Ketas |
| Counsel for the Respondent: | Ms B. Nolan |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The application filed on 25 July 2007 is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $4,800 payable within five (5) months of the date of these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2291 of 2007
| SZLCL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Application
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth), as amended, (the Act) seeking review of the decision of the Refugee Review Tribunal (the Tribunal) which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant a protection visa to the applicant.
Background
The applicant was born on 7 May 1968 and was aged 38 years at the time of his application for a protection visa.
The applicant claims to be a national of Indonesia who speaks Bahassa Indonesian.
The applicant arrived in Australia on 19 November 2006 on an Indonesian passport.
The applicant lodged an application for a Protection (Class XA) visa on 14 December 2006 on the basis that he fears being persecuted if he were to return to Indonesia because he was a teacher of Islam Jamaah (Islam Jema’ah) (IJ)) also known as Lembaga Dakwah Islam Indonesia (LDII), an organisation banned by the Indonesian Government in 1971 (Court Book (CB) 8).
The applicant claimed that he felt ‘endangered and threatened’ which made it impossible for him to teach IJ. He also claimed to have moved residences in Indonesia on a number of occasions in order to avoid disruption to his teachings. He said that he opened a business selling shoes and other items after moving from ‘place to place’.
The applicant claimed he was harassed by the police; called in for questioning; and asked about his teachings, his own activities and those of others in the village. The applicant claimed that once the police realised that he was a fugitive from Java and a member of IJ/LDII he was targeted and had to go into hiding (CB 63).
On 26 February 2007 the delegate refused to grant the applicant’s protection visa (CB 62-68) on the basis that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (see Legislative framework).
On 28 March 2007 the applicant applied to the Tribunal for review of the delegate’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (the Convention).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Section 91R and s.91S of the Act refer to the persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceedings
The applicant's claims and evidence (CB 129-136)
The applicant appeared before the Tribunal on 25 May 2007 and gave oral evidence and presented arguments with the assistance of an interpreter.
The Tribunal summarised the applicant’s claims in the protection visa application; country information submitted by the applicant attached to his original protection visa application (CB 130); and other country information to which it referred (CB 129–134). It also summarised the applicant’s claims at the Tribunal hearing including that:
·in 1990 the applicant became involved in IJ
·in 1992 the applicant began studying at an Islamic boarding school run by an Islamic organisation called LDII in a placed called Burengan-Kediri, in East Java and qualified as a teacher
·in October 1993 the applicant taught Islam in East Java for about 5 months after which he was forced out because the rest of the community did not approve of IJ
·in June 1994 the applicant continued teaching for a period of 12 months. Eventually the applicant gave up teaching because other scholars felt that his teachings from LDII were going astray. The applicant also gave up teaching because he felt his life was endangered, threatened and terrorised. After 8 months rest, the applicant returned to teaching Islam
·on 5 August 1996 the applicant assisted in the erection of a community built Mosque
·on 30 June 1997 a group of people destroyed the Mosque and he fled as he no longer felt safe. The applicant claims that the government in that district had forbidden the existence of the Mosque and police went searching for him
·from 8 August 1997 to December 1998, the applicant and his family moved around. The applicant attempted to start his own business but eventually returned to teaching Islam on 10 January 1999 in Central Java
·in September 2002 after some controversy as to the ‘correct’ teaching of LDII, mosques, buildings, homes and properties owned by LDII, were burnt and demolished. The applicant claimed that as a teacher, he was targeted to be killed so he fled the village and moved around from village to village for some time
·on 5 October 2003 the applicant left Java and moved to Kalimantan and resided in a village
·on 3 December 2005 the applicant claims that about 1000 people attacked the mosque of LDII screaming “kill and burn” and burnt down the properties. The applicant claims that he then took his wife and children and fled
·the applicant claims that since that event, the police have targeted him and identified him as a fugitive.
The Tribunal's findings and reasons (CB 137-139)
The Tribunal made the following findings:
·the applicant is a citizen of Indonesia
·the Tribunal accepted that IJ had been banned by the Indonesian Government and that the treatment of some people involved in the IJ Muslim sect “may involve serious harm and systematic and discriminatory conduct.” However, the identified incidences of serious harm against IJ adherents in Indonesia were not sufficient conditions to find in favour of the applicant in regard to whether he is owed protection. The Tribunal found that a finding on this matter can only be made by examining the applicant’s personal circumstances and claims in relation to the country information and other evidence before the Tribunal
·in considering the applicant’s claims (that his life was threatened, that he was terrorised, that he was forced to move around and was targeted by police and otherwise harassed because he was a member and teacher of IJ), the Tribunal found that upon examination of these claims that the applicant’s definition of being terrorised amounted to ostracism from the community and suffering comments against his faith and verbal threats of violence against himself and mosques
·the Tribunal did not accept that the incidents described by the applicant as reasons that he was forced to travel from place to place actually occurred, for the following reasons:
a)there was no evidence in the country information to support the applicant’s claims that the Mosques in Kalimantan and Jombang were destroyed, while evidence of similar occurrences in other parts of the country in a similar time frame were reported
b)when this was put to the applicant he was unable to explain why these two incidents were not reported
c)it was not plausible that these incidents would not have been reported if they actually had occurred given that IJ was banned and other similar incidents were widely reported
d)the applicant returned to both Jombang and Sidoarjo with his family after the claimed incidents. The Tribunal did not accept that someone who was persecuted for his religious beliefs would return voluntarily and settle in the two locations where the claimed persecution took place
e)further, the applicant gave evidence that he was not approached by anyone seeking to harm him physically or his family, nor was he questioned or detained or harassed by police. He was not wanted by the police nor was there a warrant for his arrest.
·the Tribunal was not satisfied that the applicant was an adherent of IJ. However, even if he was ostracised and verbally attacked for his religious belief as claimed, the Tribunal was not satisfied that such attacks and ostracism actually amounted to persecution within the meaning of the Convention
·the Tribunal did not accept the evidence of the newspaper article recording the interview with his wife (the newspaper article) put forward in support of his claims. The Tribunal found that the newspaper article replicated the applicant’s original statement accompanying his original protection visa application and was written as if it were recounted by the applicant himself. When the applicant was questioned about this he was evasive. On this basis, the Tribunal rejected that the newspaper article was independently written, as claimed, and did not accept it as evidence in support of his claims
·the Tribunal found that even though IJ is banned by the government and the newspaper article asserted the applicant’s membership of IJ, he was not the subject of adverse interest by the authorities, harmed, detained or questioned by them despite his living in Jakata and then Sidoarjo
·the Tribunal was therefore not satisfied that the applicant was or is a member of IJ, or that he was a teacher of IJ, nor that he was or would be imputed as a being an IJ member if he returned to Indonesia now or in the reasonably foreseeable future
·the Tribunal was not therefore satisfied that the applicant suffered past persecution as a result of his membership of IJ or for any other Convention-related reason, or that he will be persecuted because of his membership or imputed membership of IJ, or for any other Convention-related reason. if he returned to Indonesia now or in the reasonably foreseeable future (CB 139).
The proceedings before this Court
The applicant filed the application in this Court on 25 July 2007 setting out four grounds for review of the Tribunal’s decision.
The applicant appeared, represented by Ms Ketas of counsel, before this Court on 11 February 2008. Ms Nolan of counsel appeared for the first respondent.
Grounds of application
The grounds of the application are:
1) The second respondent committed jurisdictional error of law by failing to consider whether the law made by the Indonesian Government in 1971 banning Islam Jama’ah was a law applied in a way that was discriminatory in itself for reasons of religion and whether the applicant’s fear of punishment by the Indonesian authorities for the breach of this law could, of itself, give rise to a well-founded fear of persecution for a Convention reason.
2) The second respondent committed jurisdictional error of law in that it asked itself the wrong question, or misconstrued and failed to apply the law in relation to the meaning of the word ‘persecution’ for the purposes of the Refugees Convention.
3) The second respondent committed jurisdictional error of law in that there was no evidence to support its conclusion that the applicant was not a member or teacher of Islam Jama’ah.
4) The second respondent constructively failed to exercise its jurisdiction by failing to deal with the applicant’s claim that there was a particular social group, namely teachers of LDII or Islam Jama’ah, and that as a member of that group he had a well-founded fear of persecution if he returned to Indonesia.
Ground 1 of the application.
The applicant submits that the Tribunal failed to consider whether the law banning IJ was discriminatory in itself for reasons of religion, and whether the applicant’s claimed fear of punishment for breach of this law could, of itself, give rise to a well-founded fear of persecution for a Convention reason.
The applicant submits in this regard that:
·the Tribunal accepted that IJ was banned by the Indonesian Government and that the treatment of some people involved in the IJ Muslim sect, may involve serious harm and systematic and discriminatory conduct. However, the Tribunal failed to consider whether the law made by the Indonesian Government in 1971 banning IJ was a law applied in a way that was discriminatory in itself for reasons of religion.
·such consideration will usually occur in the context of an inquiry into the nature of the law, the motives behind the law, whether the law is selectively or discriminatorily enforced or impacts differently on different people: Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 1599 at [63].
·the Tribunal gave only scant attention to the above matters. The Tribunal should have specified, in greater detail than it did, the source and detail of the laws and the penalties that attend their breach
·a law that targets or applies to persons by reason of their political opinions, religion, race or membership of a pre-existing social group, is not properly described as a law of general application: Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293, 170 ALR 553
·consequently, a law regulating the practice of religion, requiring that it be practiced or observed in a particular way or targeting or applying only to persons practicing religion, is not a law of “general application”. Thus, a fear of prosecution or punishment by the authorities for the breach of such laws can, of itself, give rise to a well-founded fear of persecution for a Convention reason: Wang at [66]
·it is plain that the law banning IJ is not a law of general application as that term has been used in the cases. Thus, the applicant’s fear of punishment for the breach of such law, of itself, is well founded
·that the applicant’s fear of persecution is well founded is further supported in the Tribunal’s finding that the treatment of some people involved in the IJ Muslim sect, may involve serious harm and systematic and discriminatory conduct
·the Tribunal identified the existence of incidences of serious harm against IJ adherents in Indonesia [CB 137 para 2 and 9; see also Country Information CB 130-134].
·at the hearing the applicant stated that he had to stop praying at his mosque because of a government decree, but that he continued to pray privately at home [CB 137 para 4]. The question for the Tribunal must always be whether the claimant has a well founded fear of persecution for a Convention reason. If that question is answered in the affirmative the protection of the Convention is not forfeited or lost by a determination that the fear has arisen as a result of unnecessary, or even unreasonable, conduct by the claimant. It is therefore not forfeited or lost by a determination that the appellant could exercise his religious practices and beliefs in a manner, and at a church, that is different from the manner and church in which he intends and wishes to practice his religion: Wang at [99]
The first respondent submits that the applicant wrongly asserts that the Tribunal found that the law banning IJ is a law of general application. I do not understand the applicant to be so asserting, rather that the Tribunal failed to properly consider that a law which is not a law of general application but is, of itself, discriminatory for reasons of religion and thus that a fear of persecution, per se, (for the breach of such law by the applicant), could amount to a well founded fear of persecution for a Convention reason.
The relevant passage from the Tribunal's Findings and reasons states as follows (CB 137):
On the basis of the country information above, the Tribunal accepts that Islam Jema’ah has been banned by the Indonesian Government and that the treatment of some people involved in the Islam Jema’ah Muslim sect, may involve serious harm and systematic and discriminatory conduct. The identified existence of incidences of serious harm against Islam Jema’ah adherents in Indonesia are not sufficient conditions to find in favour of the applicant in regard to whether he is owed protection by Australia. A finding on this matter can only be made by examining the applicant’s personal circumstances and claims in relation to the country information and other evidence before the Tribunal.
It is clear from the above passage that the applicant fails to acknowledge that the Tribunal decision in this case did not depend upon the nature of the law banning IJ, whether it was applied in a way that was discriminatory in itself for reasons of religion, and whether it could of itself give rise to a well founded fear of persecution. Rather, the Tribunal based its decision upon its rejection of the applicant’s “personal circumstances” that he was a member and teacher of IJ. It was on this basis that the Tribunal could not be satisfied that the applicant had a well founded fear of persecution.
In considering whether or not the applicant was a member or teacher of IJ, the Tribunal was not required to accept uncritically any and all allegations made by the applicant in support of that contention nor was it necessary for the Tribunal to have rebutting evidence before it could find that a particular assertion by the applicant had not been made out: Randhawa v Minister for Immigration & Ethnic Affairs (1994) 52 FCR 437 at 451, 124 ALR 265 at 278; Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 at 76.
The applicant is, in effect, seeking that the Court engage in impermissible merits review of the Tribunal’s decision. This is not the function of this Court: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at [558]; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10].
The Tribunal did not accept that various incidents described by the applicant, in fact, took place (CB 137-138). The Tribunal’s conclusions in this regard were findings of fact par excellence, not open to review by this Court. As relevantly observed in Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 at [67]):
If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.
Also, as the Full Federal Court observed in NADR v Minister of Immigration & Multicultural &Indigenous Affairs [2003] FCAFC 167 at [9]:
The finding of facts, including the making of findings of credibility, was uniquely within the jurisdiction of the Tribunal and not within the jurisdiction of the Court. It would have been in contravention of Minister for Immigration &Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 for the Court to have engaged in merits review.
Merely because the Tribunal rejected the applicant’s claims on the basis that he could not be believed in regard to various of his assertions and therefore did not believe that he feared persecution if he were to return to Indonesia, is not to say that it did not properly consider his claims.
Furthermore, merely because the applicant disagrees with the Tribunal’s factual conclusions and its ultimate conclusion does not amount to an error of law: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]. There is no error of law, let alone jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth of Australia (1998) 197 CLR 510 at 560 [137].
The weight which the Tribunal accords the material before it is also ultimately a factual matter for it. As observed by the Federal Court in Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27]:
The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.
Moreover, contrary to the applicant’s submission, the Tribunal never made an affirmative finding that the applicant had a well founded fear of persecution. Indeed, the Tribunal stated in this respect that, whilst it was not satisfied that the applicant was an adherent of IJ, even if he had been ostracised and verbally attacked for his religious beliefs as claimed, it was not satisfied that such attacks and ostracism amounted to persecution within the meaning of the Convention.
The Tribunal specifically cited the observations of McHugh J in Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 at 430, [55], emphasising the degree of harm that would be required to constitute persecution:
Persecution involves discrimination that results in harm to an individual. But not all discrimination amounts to persecution … The Convention protects persons from persecution, not discrimination. Nor does the infliction of harm for a Convention reason always involve persecution. Much will depend on the form and extent of the harm. Torture, beatings or unjustifiable imprisonment, if carried out for a Convention reason, will invariably constitute persecution for the purpose of the Convention. But the infliction of many forms of economic harm and the interference with many civil rights may not reach the standard of persecution. Similarly, while persecution always involves the notion of selective harassment or pursuit, selective harassment or pursuit may not be so intensive, repetitive or prolonged that it can be described as persecution.
I further reject the applicant’s assertion that the Tribunal only gave “scant attention” to the matters stated in the applicant’s submissions above and that it was under an obligation to specify, in greater detail, the source and detail of the relevant laws and the penalties that attended their breach. I consider in this regard that the Tribunal gave proper and sufficient consideration to matters relating to the treatment of IJ sect members by reference to a range of relevant country information as set out in the Claims and evidence (at CB 130-134) and as discussed in the Tribunal’s Findings and reasons (at CB 137-139).
In any event, it is well-settled that the Tribunal’s choice and assessment of relevant country information is a purely factual matter for it: (NAHI at [11]-[14]; NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 216 ALR 1 at [8] per Gleeson J; NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 (FC) at [81] and [84]).
Furthermore, what weight the Tribunal gave to any particular country information is ultimately a factual matter for it: (NBKT at [81]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J; Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361 per Beazley J at [54]; Lee at [27]).
Even if there is evidence to establish that the Tribunal has made an error of fact by relying upon incorrect country information, this would not amount to an error of law, let alone jurisdictional error: Abebe at [137]. As summed up by the Full Federal Court in NAHI:
By s.424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that … at [11].
The very function of the Tribunal was to assess the applicants’ claims, both as to their inherent credibility and as to their consistency with other information known to the Tribunal about circumstances in the applicants’ country of origin …at [12].
Ultimately, however, the Tribunal decision did not turn on its assessment of country information, rather on the credibility of the applicant’s claims of persecution.
In summary, I consider that a fair reading of the Tribunal’s decision record makes it clear that the Tribunal understood the nature of the claims made by the applicant; explored those claims with him at the hearing; identified the determinative issues and gave him sufficient opportunity to give evidence and make submissions on those issues at the hearing; and noted the applicant's responses. The Tribunal further had regard to independent country evidence; and then made findings based on all the evidence and material before it.
I consider that its findings of fact were open to it on the evidence and material before it; that it provided well-articulated and sufficient reasons for its decision; that it applied the correct law to those findings; and reached its conclusions based on the findings made by it. In these circumstances, I am satisfied that the Tribunal complied with the statutory regime in the making of its decision and performed the task required of it in accordance with law.
Accordingly, for the reasons set out above, Ground 1 of the application is rejected.
Ground 2 of the application
Ground 2 states that the Tribunal asked itself the wrong question in relation to the meaning of the word ‘persecution’ for the purposes of the Convention.
The applicant submits in this regard that:
·in finding that the Tribunal was not satisfied that verbal attacks and ostracism described by the applicant did not amount to persecution within the meaning of the Convention (CB 138), the Tribunal fell into error
·the matter for the Tribunal’s determination was not whether the applicant’s previous suffering amounted to persecution, but whether he had a well-founded fear of future persecution: Minister for Immigration & Multicultural Affairs v S152/2003 [2004] HCA 18 at para 86
·in its ordinary meaning, persecution involves selective harassment or oppression of any kind. The terms "harassment" and "oppression", particularly the former, imply repetitive, or the threat of repetitive, conduct. In its ordinary meaning, persecution always involves discrimination of some kind although discrimination is not necessarily persecution: S152/2003 at para 72.
·the Convention controls and narrows the meaning of persecution for its purposes. The Convention is concerned with persons who are outside their country of nationality and are unable or unwilling to seek the protection of that country because of a well-founded fear of what will happen to them if they return to that country. The feared harm must be of a serious nature that goes beyond simple discrimination and requires the country of asylum to protect the refugee for the purpose of the Convention. The feared harm will constitute persecution only if it is so oppressive that the individual cannot be expected to tolerate it so that refusal to return to the country of the applicant's nationality is the understandable choice of that person. Implicit in that statement is the further proposition that there is a real chance that the feared conduct will be repeated or, if it has not already occurred, will occur, if the asylum seeker returns to the country of nationality: S152/2003 at para 73.
·moreover, to constitute ‘persecution’ the harm threatened need not be that of loss of life or liberty. Measures in disregard of human dignity may constitute persecution. Hence, the imposition of restrictions on the freedoms traditionally guaranteed in a democratic society such as freedom of worship may constitute persecution if imposed for a Convention reason: Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 430.
·persecution for reasons of religion is conduct which is discriminatory and which is sufficiently serious so as to constitute persecution: Minister for Immigration & Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 para 24
·The fear may arise from an announcement as to a future course of conduct or from a single act that was directed at the asylum seeker or at others. It is not necessary that the asylum seeker should have been persecuted in the past. The Convention looks to the future. What has occurred in the past does not determine whether a person is a refugee for the purpose of the Convention: S152/2003 at para 74
·where fear of persecution springs from the conduct of the State and there is a real chance that the conduct will continue and affect the asylum seeker, a finding that the fear is well-founded will be virtually inevitable. Similarly, where the persecutory conduct of State agents is widespread, a finding that the fear is well-founded will be virtually inevitable. On those hypotheses, refusal to return to the country of nationality is the only practical means of avoiding the real chance of persecution: S152/2003 at para 76
·more difficult issues arise where the persecution is the work of private individuals, particularly where there are many of them and their conduct is uncoordinated, or where the persecution is perpetrated by isolated State agents. As Gaudron J pointed out in Haji Ibrahim, "a well-founded fear of persecution may be based on isolated incidents which are intended to, or are likely to, cause fear on the part of persons of a particular race, religion, nationality, social group or political opinion". If the State refuses to act or tolerates the conduct of the individual or group, the State itself will be complicit. On that hypothesis, unless there is only a remote chance that the asylum seeker will be persecuted, ordinarily the proper conclusion is that the fear is well-founded: S152/2003 at para 76.
I accept that the applicant has correctly summarised many of the principles arising from the relevant case-law, including from S152/2003; Chan; and Haji Ibrahim, as to what constitutes persecution for a Convention reason. However, as stated in regard to ground 1 above, the Tribunal did not ultimately determine the applicant’s application by reference to whether the alleged attacks or acts of ostracism against the applicant could, or did, constitute "persecution".
Rather, the Tribunal determined that it could not be satisfied that the applicant was a member or teacher of IJ and therefore it could not be satisfied that the applicant had suffered persecution, or had a well-founded fear of future persecution if he returned to Indonesia, on the basis of any alleged association with IJ (and see further under ground 1 above).
In any event, whether any alleged conduct of ostracism and verbal attack against the applicant is sufficiently serious to constitute persecution is an issue of fact and degree for the Tribunal alone to determine: Prahastona v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260 at 269 and 271; Minister for Immigration and Multicultural and Indigenous Affairs v Kord [2002] FCA 334; (2002) 125 FCR 68 at [3] and [56]; Das v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 489; (2004) 208 ALR 229 at [23]- [24]; VDAU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 32 at [24]; and Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 215 ALR 733 at [51]-[52].
Accordingly, Ground 2 of the application is rejected.
Ground 3 of the application.
Ground 3 of the application states that there was no evidence to support the conclusion of the Tribunal that the applicant was not a member or teacher of IJ.
The applicant submits in this regard that:
·by not accepting that the incidents described by the applicant actually occurred (CB 137 para 9), the Tribunal committed a jurisdictional error of law.
·the decision maker is required to make positive findings based on probative evidence: W321/A v Minister for Immigration & Multicultural Affairs [2002] FCA 210.
·the Tribunal’s reasons stated that there is no evidence in the country information consulted to support the applicant’s claims that his Mosques in Kalimantan and Jombang were destroyed. The Tribunal found that it was implausible that these incidents would not have been reported if they had actually occurred (CB 137 para 9 –138 para 1)
·the Tribunal had no substantive material before it concerning the workings of those agencies that produce reports such as the Indonesian media or UNHCR. It is not beyond the human experience of possibilities that these events occurred and yet, were not reported in the media.
·the Tribunal cannot exclude an applicant’s account from the material the Tribunal is obliged to consider, by relying upon a bare assertion that the applicant’s account is ‘implausible’. There must be facts found that are inconsistent with claimed events, or the claimed events must be so beyond the human experience of possibilities that they may be said to be inherently unlikely: W321/A at para 30
·notwithstanding that the Tribunal was not satisfied affirmatively that the applicant’s Mosques in Kalimantan and Jombang were destroyed, the Tribunal had to take into account the possibility that such events had occurred and assess whether it was possible that those acts were carried out in contravention of the Convention.
·a positive finding does not require the Tribunal to be absolutely certain that a particular event did or did not occur. In W68/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 148, the Court held that the RRT erred by assuming that it had to be certain that a particular event occurred in order to assess whether that event gave rise to a well-founded fear of persecution.
·the RRT’s reasons further stated that the Tribunal does not accept that someone who was persecuted would return voluntarily to the two locations where the claimed persecution took place (CB 138 para 1). This does not amount to a positive finding based on probative material or logical grounds, that the events claimed had not occurred. Given the banning of LDII by the Government, the applicant would be at risk of persecution anywhere in Indonesia. It is not unreasonable that he would return to his home village
·the Tribunal also assessed the applicant’s case on the assumption that he could only have a well-founded fear if he had been harmed or targeted for harm. The Tribunal noted that he was not wanted by the police nor was there a warrant for his arrest (CB 138 para 2). The decision maker is not required to embark about consideration or speculation on possible alternative grounds or scenarios unless they are clearly raised by the applicant’s claims: Ahvazi v Minister for Immigration & Multicultural Affairs [2002] FCA 279
·the applicant provided the Tribunal with a newspaper article which was written as a result of a journalist approaching his wife and asking her to tell her life story. The Tribunal rejected the applicant’s claim that the article was independently written and did not accept it as evidence supporting his claims (CB 138 para 4). Again, this was not a positive finding based upon probative evidence.
·it is noted that the article was translated before the RRT by the interpreter [no transcript, no complaint made]. The Tribunal was critical of the article because it was almost a replica of the applicant’s statement attached to his original application and written in the first person, as if he himself wrote the article. When this was put to the applicant he was evasive (CB 136 para 5).
·on the issue of whether or not the applicant was deliberately evasive, the Tribunal should have taken account of the applicant’s cultural background and how this may affect the communication process between the applicant and the decision maker. Lack of detail or an overly laconic response can create a poor impression. The problem is exacerbated even more when evidence is given by way of an interpreter. Judging the demeanour of the witness from the witness’s own answers in a foreign language would require a high degree of familiarity with that language and the cultural background of its speakers. It is all too easy for the subtle influence of demeanour to become a cloak, which conceals an unintended but nonetheless decisive, bias: Kathiresan v Minister for Immigration & Multicultural Affairs (unreported) Federal Court, 4 March 1998.
·in addition, the Tribunal should have made allowance for the fact that the article was being translated viva voce at the hearing [no transcript]. It was not subject to careful scrutinising. It is possible that the interpreter and/or the journalist made an error when speaking or writing in the first person. It is not unknown for a journalist to misquote the subject of his/her interview.
·the applicant’s wife and children travelled with him from village to village. It is not surprising that her version of events as recalled to the journalist is so similar to the applicants when one appreciates that she was living through the same experiences alongside her husband.
·minor inconsistencies, minor contradictory statements, and insubstantial vagueness regarding certain details, may not necessarily reflect upon the credibility of the applicant and should not be used as decisive factors in assessing credibility, particularly where such matters are not material to the substantive issue of whether the applicant has a well-founded fear of persecution for a Convention reason.
·the fact that the article was almost a replica of the applicant’s statement must surely be viewed in favour of the applicant on the basis that it demonstrates that the applicant has been consistent in his version of events.
The applicant is effectively seeking that the Court engage in impermissible merits review. As stated under ground 1 above, it is not the function of this Court to engage in fact finding concerning the merits of an applicant’s case (and see further under ground 1).
In regard to the applicant’s submissions concerning the newspaper article allegedly attributed to the applicant’s wife, I note that there is nothing on the face of the Tribunal decision record to demonstrate that there was any complaint made to the Tribunal as to the quality of the interpreter on that occasion or of the journalist. Nor was any transcript of the evidence of the Tribunal hearing or any other admissible evidence on the point put before the Court by the applicant in support of his submissions. As stated by the Full Federal Court in NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [21]:
In the absence of evidence about what occurred at the hearing, the appellant has no sufficient evidential basis for the grounds he seeks to raise, thus he has not, in our opinion, established that the Tribunal did not comply with the rules of natural justice.
Further, in regard to the applicant’s submissions that the Tribunal failed to take into account the applicant’s cultural background in assessing its affect on the communication process between the applicant and the Tribunal member and in assessing his credit; that this problem is exacerbated by the use of an interpreter; and that it is “all too easy for the subtle influence of demeanour to become a cloak, which conceals an unintended but nonetheless decisive, bias”, again I note that there is nothing on the face of the Tribunal decision record to demonstrate that there was any complaint made to the Tribunal as to the quality of the interpreter on that occasion. Nor was any transcript of the evidence of the Tribunal hearing or any other admissible evidence on the point put before this Court by the applicant in support of his submissions. Furthermore, no particulars to identify the precise nature of any allegation of apprehended bias have been provided by the applicant.
It is well-settled that any allegation of bias must be “distinctly made and clearly proved”: SZHPD v Minister for Immigration & Citizenship [2007] FCA 157 at [22]; citing Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531, [69]. This has simply not been done in the present case.
In order to establish bias the applicant would need to demonstrate that the Tribunal “acted dishonestly or arbitrarily or capriciously”: SBBS v Minister for Immigration and Multicultural & Indigenous Affairs (2002) 194 ALR 749 at [56-59]. Again, this has not been demonstrated by the applicant. There is nothing disclosed on the face of the Tribunal decision record to support any such assertion of bias on its part.
I am also satisfied that there is nothing on the face of the decision record to show that a “hypothetical fair minded lay observer 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”, might reasonably apprehend that the Tribunal did not bring an impartial mind to the task of the decision making process: Re Refugee Review Tribunal;ex parte H & Anor (2001) 179 ALR 425 at [28].
I am satisfied therefore that no allegation of apprehended bias can be demonstrated on the face of the Tribunal decision record and that it embarked on the task required of it with a mind open to persuasion.
Accordingly, Ground 3 of the application is rejected.
Ground 4 of the application
Ground 4 states that the Tribunal failed to deal with the applicant’s claim that there was a particular social group (teachers of LDII or IJ) and that as a member of that group he had a well-founded fear of persecution if he returned to Indonesia.
In support of this assertion, the applicant submits that:
·the Tribunal constructively failed to exercise its jurisdiction by failing to deal with the applicant’s claim that there was a particular social group, namely teachers of LDII or IJ, and that as a member of that group he had a well-founded fear of persecution
·the Tribunal failed to properly exercise its jurisdiction by failing to address whether such a group actually exists, or is perceived to exist or does not exist
·in Chen Shi Hai (2000) 201 CLR 293 the High Court noted that, where the perception is that a group exists separately from a law or policy referring to them, then such a law is not a law of general application. It is submitted that IJ exists separately from the law banning this religion
·when defining the existence of a particular social group, the important factor is whether the group is such that it is recognised by those who are not members of it, or is perceived to exist by those who are members of the group and if this forms the basis for why harm is directed at members of the group. These are issues of fact to be determined by the decision maker. As stated by Dawson J in Applicant A (1997) 190 CLR 225 at 241:
A particular social group, therefore, is a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large. That is to say, not only must such persons exhibit some common element; the element must unite them, making those who share it a cognisable group within their society.
·further, the claimed fear must be directed at the person for membership of the particular social group. That is, the persecution that is feared must be directed at that person for the reason that they belong to a group different from society at large or one that is distinguished from it: Applicant A
·once the particular social group has been identified, it is then possible for the decision-maker to consider the question whether the applicant has a well-founded fear of persecution for reason of their membership of that particular social group. For an applicant to make their case to be a refugee they must show a causal connection between the harm they fear and their membership of the particular social group
·the independent country information supports a finding that a particular social group exists, that group being teachers of LDIl and/or adherents to the religion IJ. The country information also supports a finding that a fear of persecution for the reason that the applicant belongs to that group is a well founded fear (CB 130-134).
As discussed under ground 1 above, the Tribunal found that the applicant was not a teacher of LDII or IJ.
Given this finding by the Tribunal, the matters raised by the applicant, including whether this group of teachers exist, how that group might be defined, and whether a member of that group would have a well-founded fear of persecution, are not relevant issues in this case.
Accordingly, ground 4 of the application is rejected.
The applicant’s further oral submission
The applicant made the further oral submission to this Court:
at no time during the [Tribunal] hearing did [the Tribunal] put to the applicant that his version of events was implausible or that [the Tribunal] had any reason for disbelieving his version of events, and…in fairness…if [the Tribunal] was going to make a finding that [the Tribunal] did not believe the applicant, then it should have been put to him that his version of events was implausible so that he had the opportunity to respond (Transcript, 11/2/08, p. 18)
The applicant has not sought to put the transcript of the evidence of the Tribunal hearing before the Court to support its assertion on the point.
As stated under ground 1 above, I consider that a fair reading of the Tribunal decision record discloses that the Tribunal carefully explored the applicant’s claims with him, including, in this regard, putting to him that:
·it was unable to find any reference to the incidents he referred to in the country information he provided to the Tribunal … it could not find any reference to the incidents he described in East Java;
·he had presented no evidence that he had been harmed or targeted for harm, yet there were ample opportunities for his claimed enemies to harm him if they were so minded;
·he was able to teach and operate his business openly in the villages where he lived; his home was known and open to people to visit and yet no harm had come to him or his family;
·the [newspaper article] was almost a replica of the applicant’s statement attached to his original application and written in the first person, that is, as if he himself wrote the article.
I am further satisfied that the Tribunal complied with its statutory obligations under s.425(1) of the Act by giving the applicant the opportunity at the hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review. In this regard, the Tribunal identified for the applicant the determinative issues and gave the applicant ample opportunity to give evidence and make submissions concerning adverse information in relation to these determinative issues, before it reached its conclusions: SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63 at [33]–[48].
Beyond this, as observed by the High Court in SZBEL at [47]-[48], procedural fairness does not require the Tribunal to disclose its mental processes and subjective appraisals, including its disbelief of an applicant’s claims, in reaching its decision:
It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor …
…as Lord Diplock said in F Hoffmann-La Roche &Co AG v Secretary of State for Trade and Industry]:
“the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. if this were a rule of natural justice only the most talkative of judges would satisfy it …”…
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
Neither does s.424A(1) of the Act require the Tribunal to put to the applicant in writing its concerns over its disbelief of, or the implausibility of the applicant’s claims. It is clear that the word “information” in s.424A, upon a proper construction, does not extend to the Tribunal's subjective thought processes and its failure to believe the applicant's evidence. As observed by the High Court in SZBYR v Minister for Immigration & Citizenship (2007) HCA 26 at [18]:
… if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellant’s evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para(a) of s.424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellant’s evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration & Multicultural & Indigenous Affairs that the word “information”
does not encompass the Tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.
If the contrary were true, s.424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
In the present case, the credibility and plausibility of the applicant’s evidence was equally at the forefront of the Tribunal’s thought processes.
Accordingly, I detect no breach of s.425(1) and s.424A of the Act in this case. I am therefore satisfied that the applicant was accorded procedural fairness by the Tribunal in accordance with the statutory framework of the natural justice hearing rule under the Act.
Conclusion
The Court finds that the Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
The application before this Court is dismissed.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 28 March 2008
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