SZRHS v Minister for Immigration
[2019] FCCA 2383
•28 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZRHS & ORS v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2383 |
| Catchwords: PRACTICE & PROCEDURE – Applicants sought leave to rely on a yet further amended application – whether any legally arguable case arose on the grounds of the proposed yet further amended application – whether it is in the interests of justice to grant the leave sought – leave granted. |
| Legislation: Migration Act 1958 (Cth), ss.430, 476 |
| Cases cited: SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; |
| First Applicant: | SZRHS |
| Second Applicant: | DON16 |
| Fourth Applicant: | DOP16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3280 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 16 August 2019 |
| Date of Last Submission: | 16 August 2019 |
| Delivered at: | Sydney |
| Delivered on: | 28 August 2019 |
REPRESENTATION
| Counsel for the Applicants: | Mr L. Karp |
| Solicitors for the Applicants: | McArdle Legal |
| Representative for the Respondent: | Mr J.C. Hutton |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Leave is granted for the applicants to proceed on the yet further amended application as explained at the hearing before the Court.
The application as yet further amended is dismissed.
The first and second applicants to pay the first respondent’s costs set in the amount of $6000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3280 of 2016
| SZRHS |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 23 November 2016 seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 28 October 2016 which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse protection visas to the applicants.
The evidence before the Court is as follows:
(1) A bundle of relevant documents, the Court Book (“CB”–“RE1”).
(2) The affidavit of the first applicant, affirmed on 13 August 2019.
(3) The affidavit of Christopher John McArdle, Solicitor, affirmed on 26 July 2019.
(4) A legible copy of the document reproduced at CB 182 (“A1”).
The applicants in this matter have had a long migration history, and a number of applications for protection visas and review of these unsuccessful applications.
Background
The first (SZRHS) and second (DON16) applicants are citizens of Indonesia. The first applicant arrived in Australia on 2 May 2009 as the bearer of a student visa, issued as a dependent of his wife. The second applicant, his wife, arrived in Australia on 15 July 2008 as the holder of a student visa (CB 224).
The first and second applicants had five other children who remained at that time, and continue to be, in Indonesia.
The third applicant before the Court (DOO16) was born in Australia on 6 January 2009. Before the Court the applicants’ counsel applied for the third applicant to be removed as a party to these proceedings on the basis that she had attained the age of 10 years and was now an Australian citizen. He relied on the affidavit of the first applicant, made on 13 August 2019 in support of that application. The Minister did not oppose that application. I subsequently made an order removing her as a party to these proceedings.
The first and second applicants applied for a protection visa on 3 June 2011 (CB 3). They were represented by a registered migration agent (CB 1–CB 2). At that time the first and second applicants claimed protection as refugees.
The fourth applicant (DOP16) was born in Australia after the making of the application. It appears that he was added as an applicant in September 2011. He was at that time, and remains, an Indonesian citizen.
It also appears that the first and second applicants have one other child also subsequently born in Australia who is not a party to these proceedings.
The application was refused on 6 September 2011. An application for review to the Tribunal, and subsequent applications for judicial review were all unsuccessful.
Following the Full Court’s judgment in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71 (“SZGIZ”) the applicants made a second application for protection visas. This time the first and second applicants’ applications were based on the complementary protection criterion. On this occasion each of the applicants made separate claims, although all related to the claims of the first applicant.
The Minister’s delegate refused the application on 22 December 2014 (CB 505–CB 527). The applicants applied for review to the Tribunal on 29 December 2014 (CB 528–CB 529). They continued to be represented by a registered migration agent (CB 530).
By letter dated 12 May 2016 all of the applicants were invited to a hearing before the Tribunal (CB 542–CB 543). In the meantime on 27 June 2016 the applicants’ migration agent made submissions to the Tribunal, and in particular, and relevant to the grounds now before the Court, annexed reports about the political situation in Indonesia, and the situation concerning “whistleblowers” in Indonesia.
The first and second applicants attended at the hearing on 1 July 2016. That hearing was adjourned.
On 8 August 2016 the applicants’ migration agent provided a newspaper article to the Tribunal concerning the conviction of a Mr Edy Mukhlison (“Mr M”) (CB 705) (see further below).
The hearing resumed on 31 August 2016. The applicants’ migration agent provided further submissions on 12 September 2016 which was for the purpose of providing the applicants’ response to questions put to them by the Tribunal at the hearing about the newspaper article (CB 720 –CB 721). Further country information was also provided.
The Tribunal
The Tribunal affirmed the delegate’s decision on 28 October 2016 (CB 738–CB 762).
In its decision record the Tribunal set out a comprehensive exposition of the applicants’ claims (in particular the claims of the first applicant) as they were provided in a written statement with the first protection visa application, and the “current” application (see at [26]–[54] at CB 742-CB 745).
The Tribunal also summarised the applicants’ claims as they emerged at an interview with the delegate ([58]–[64]). Further, the Tribunal summarised the submissions made to it by the applicants’ migration agent ([66]–[67]) and listed documentary evidence provided by the applicants in support of the application ([68]).
There is no transcript before the Court of the hearing before the Tribunal. In its decision record the Tribunal set out, extensively, its report of what it asked at the hearing and the applicants’ responses ([73]–[115] at CB 748-CB 755). The applicants also made submissions after the hearing. These are summarised at [116]–[117] of the Tribunal’s decision record (at CB 755).
For current purposes, and relevant to the grounds and arguments now before the Court (see further below) the following summary by the Minister of the applicants’ claims to protection in Australia is helpful:
“12. The first applicant’s claims are set out in full at [26]-[54] of the Tribunal’s decision. In summary, the first applicant claimed that:
12.1. In 2004, he was the head of his village. In the course of his work in this position, the applicant and Edy Muchlison (who was also a village head) uncovered evidence of the improper release of funds from the Regency office. On 6 April 2004, they (along with 5 other village heads) reported this misuse and corruption to the Attorney General’s Department in Indonesia, who investigated the corruption claims.
12.2. Around the same time, while the claims were being investigated, he and his family received threatening phone calls, and Mr Muchlison’s house was bombed with a Molotov cocktail.
12.3. The Regent and his staff came looking for the first applicant asking him to stop his activities and the investigations. The Regent invited the first applicant to the Regency office, but the first applicant refused to go as he feared what would happen.
12.4. The applicant was subjected to various threats and harassment.
12.5. In 2006, after the first applicant’s term as village head had finished, he never went home, he moved around trying to stay safe.”
Background to the Applicant’s Argument Before the Court
The applicants all claim protection in Australia arising from a certain event, and the aftermath of this event, in 2004. The first and second applicants directly as a result of this event. The fourth applicant as a consequence of his relationship to his parents.
In essence, the claim to fear harm is said to arise from the first applicant’s attempts, with Mr M, to expose corruption in the Blitar district (or Regency) which contains his home village. He was at the time a head of the village.
The applicants’ written submissions now before the Court provide a fair summary (having regard to the evidence before the Court) of what was put before the Tribunal as earlier constituted, and the Tribunal for current purposes:
1.“3. The essence of the first and second applicants’ claims for protection (summarised at CB 183-187) were that the first applicant whilst a village head in the government district of Blitar in Java, learned that the government funds amounting to 1.3 billion rupiah1 were allocated to be shared between 248 villages in the district. He and a colleague, Edy Muchlison, the head of another village, went to enquire about this with government officials at the Blitar Regency government. There they were told, apparently without embarrassment, that only 266 million rupiah remained, the rest having been distributed to various officials first of whom was the Regent of Blitar, Imam Mahudi. Thus, every time a village head submitted a proposal for development, the response was that there were no funds available.
4. Thereafter, seven village heads travelled to Jakarta and presented allegations of corruption to the Director of Investigations in the Attorney General’s Department and also the press. Even before the arrest of the officials concerned there were threats against the first applicant by people who came to the family home, as well as offers of money to stop his activities.
5. As a result of the first applicant’s campaigning against corruption, supported by Edy Murchlison, several high officials were convicted and receive significant prison sentences (CB 1822). The first applicant claimed that he continued to receive threats from supporters of the men who had been implicated in the corruption case, including the Regent of Blitar, who were associated with the political party of the then President of Indonesia. The imprisonment of the Regent infuriated his supporters (CB 186).
6. The first applicant claimed that after that he “never went home”, that he moved around to keep safe, and that Edy Murchlison experienced the same thing. He worked as a lawyer in a legal aid office in Malang. He claimed that he stopped working when men sent by the former Regent came to the office. His wife (the second applicant) was able to procure a student visa to Australia, and he was able to come to Australia as her dependent in 2009 (CB 186-7).
7. Prior to the delegate’s decision, the applicants’ solicitors submitted a report written by Dr Paul White on the subject of the first applicant’s whistleblowing, corruption in Indonesia and the treatment of whistleblowers (CB 186-182).”
[Footnotes omitted.]
2.“10. The delegate recorded that during his interview the first applicant claimed that he did not give evidence in the corruption trials. He did however give commentary on a private radio station. He did this to give the matter a higher profile because people in the prosecutors were in league with the Regent. He had left the radio station by a back door to avoid the Regent’s supporters accosting him. Also discussed with the delegate was how he fulfilled his obligations as village head if he did not go to his office, and how he was able, as claimed, to complete his legal examinations and practice as a solicitor at the Legal Aid Institute. He claimed that he did not go to Court, had worked in a legal aid office in Malang until “they” came looking for him at the office (CB 515-6). The applicants’ return to Indonesia for a period in 2010 was discussed with him. It was also put to him that leaving several of his children behind in Indonesia was inconsistent with his stated fear for his safety (CB 516-7).”
3.“12. Further expert evidence was submitted on the first applicant’s whistleblowing, corruption in Indonesia and the treatment of whistleblowers. These included;
-A third report of Dr White at CB 590-608.
-Report of Professor Tim Lindsey at CB 562-571; and,
-Letter of Dr Jacqui Baker at CB 572-573.
13. These papers were consistent in describing corruption as endemic in Indonesia. The authors, on the basis of their research and professional expertise, asserted that politicians and people with power and influence in Indonesia are in league with criminal organisations, that these persons protect each other’s interests, and that retribution against persons who reveal corruption is common. Dr white reported at CB 602 that the first applicant’s persecutors are all members and supporters of the party of the then President of Indonesia and of a former President, that this party has its own uniformed militia and is willing to display its muscle whenever force is needed.
14. Professor Lindsey stated, at CB 564, that;
“… it is common for whistleblowers or informers to be threatened, assaulted or killed by criminals and/or members of the security forces on behalf of patrons. Indeed it would be considered unusual for it not [to] happen where a whistleblower reveals corruption involving politicians or other powerful figures.” (CB 564 [14])
15. Dr Lindsey also stated at CB 564 [12], that a person who has damaged a powerful patron by revealing a crime he or she has committed may become a target of assault or killing long after the fact, and that being seen to be able to hunt down and punish an enemy and his or her family long after the fact enhances the parton’s power and reduces the likelihood of others acting against the patron.
16. Dr White had, in his report of 27 October 2014, cited several examples of intimidation and violence against whistleblowers and human rights activists (CB 656-465), Professor Lindsay and Dr Baker described protection of such people as in effect nugatory,
17. Time had of course moved on. Not only was there more evidence, indeed expert evidence, but events in Indonesia had also developed. A translated news report dated 28 July 2009 recorded that the former Regent of Blitar, Imam Mahudi, suffered had suffered a heart attack in prison and had died (CB 650). The applicants’ migration agent referred to this in a submission at CB 659;
“The Regent of Bitar died in prison before his release and therefore his family sre likely to be bitter and want their revenge and will their desire to harm the applicants will be lifelong. While the applicant’s have not been in Indonesia for an extended period of time their children in Indonesia are questioned regarding the location of their parents.” (as written)
18. In addition, after the Tribunal hearing the applicants’ agents submitted a news report which contained details of Edy Muchilson, one of the first applicant’s colleagues in his complaints against the corruption of the Regent, being himself convicted of corruption (CB 722-724). Also submitted was country information about whistleblowers themselves facing charges of corruption (CB 726-728).
19. The Tribunal recorded, at CB 748 [75], that shortly after the commencement of the hearing it was submitted that the arrest and conviction of Edy Muchilson was related to his part in revealing corruption in 2004. The first applicant is recorded as having given evidence at hearing that Mr Muchilson’s corruption case stemmed from a public regulation issued by all village heads relating to the issue of land certificates. He argued that if Mr Muchilson had engaged in corruption than all village heads would have to be prosecuted because they had issued the same regulation (CB 748-9 [77]).”
The Tribunal’s Reasoning
The Tribunal accepted that the first applicant, with others, was a village head in his home district in Indonesia and that he was involved in the exposure of corruption in his home district in 2004, a matter which had received “significant publicity” in Indonesia ([118]).
It was also prepared to accept that the second applicant received several threats over the telephone after the corruption was revealed, and that other threats had been made ([118]).
The Tribunal found these threats resulted in: “…causing the applicants to hold genuine fears or concerns for their safety around the time of the events in question” ([118]).
The Tribunal, however, was not satisfied that the applicants had provided “truthful evidence” as to their circumstances in the years after 2004, or events following their departure from Indonesia ([119]).
The Tribunal noted that in light of psychological and psychiatric evidence before it, and the difficulties faced generally by applicants in presenting their evidence, care needed to be taken in assessing the claims.
Notwithstanding this, the Tribunal found the first applicant’s evidence about the family’s movements in the period 2004 –2008 to be “evasive”. It found he had to be prompted on occasion, and the evidence that was “finally revealed was vague and non-specific” ([121]).
The Tribunal found that it was unable (on the evidence presented) to form a ([121]):
“clear picture of the applicant’s physical movements and locations during this period that is capable of reconciliation with the applicant’s other evidence regarding his and his wife’s employment and tertiary study during the same period.”.
It further found the applicants’ completion of tertiary qualifications during the same period to cast doubt on the claim that they feared for their safety ([124]).
While the Tribunal expressed concern about the first applicant’s various, and inconsistent, accounts about his position as village head, it placed no weight on this. However, the Tribunal was particularly concerned by the first applicant’s evidence that he remained as village head even though he also claimed to have left his home village and moved around because he was fearful of harm ([123]).
The Tribunal also had difficulty with reconciling the claims that the first applicant worked as a lawyer and the second applicant worked as a teacher, and each engaged in further study, with their claim to fear harm given what they otherwise claimed to be their circumstances at that time ([124] – [125]).
The Tribunal also doubted that they left Indonesia because of fears for their safety, in circumstances where they remained in Indonesia for four to five years after the events of 2004, and then further delayed in applying for protection after arriving in Australia ([126]).
Additionally, the Tribunal had concerns with the first applicant’s evidence about returning to Indonesia for a period in 2010. The Tribunal was not satisfied with his explanation. The Tribunal also found it difficult to understand why he returned to his home village, and that his evidence as to the number of visits he made was unclear. The Tribunal noted that the first applicant’s return to Indonesia was inconsistent with a genuine fear of harm ([127]).
The Tribunal also had concerns with his evidence concerning unknown people visiting the places where the applicants’ children were living ([128] at CB 758). The Tribunal found that the evidence provided by the first applicant said to be about persons visiting the first applicant’s children while he was in Australia was not convincing. In particular it had concerns about the documents provided in support of this aspect of the claim, and why these visits were not reported to the police ([128]).
Given the above, the Tribunal was not satisfied that the applicants had provided a genuine account of the claimed experiences between 2004 and 2008. It rejected key aspects of their factual claims including that the applicants were forced to leave their home village for the whole of the period between 2004 and 2006, and that the first applicant remained hidden during his return to Indonesia in 2010 ([130]).
As set out above the first and second applicants had already had their claims to protection based on a claim of serious harm considered and determined. The task for the Tribunal was now to consider whether they would face significant harm if they were to return to Indonesia ([131]).
Although the first applicant placed significant weight on a letter from his employer in Indonesia, which stated that the first applicant’s life was at risk because of his exposure of corruption, the Tribunal was only able to attach “limited weight” to it because it found the letter was absent any explanation for this statement ([132]).
The Tribunal’s decision record also refers to the imprisonment of Mr M and information provided by the first applicant in support of the claim that he would suffer harm for exposing corruption in his home district ([133]–[134]), and further reports submitted by the applicants involving whistleblowers in Indonesia ([135]) (see further below).
The applicants had also submitted “expert reports” to the Tribunal including a report from Professor T Lindsey and Dr J Baker. The Tribunal’s decision record makes reference to these at [136]–[137] (see further below). There were also further reports from a Dr White ([138]).
The Tribunal accepted parts of these reports. However, the Tribunal was not satisfied, after considering the applicants’ personal circumstances, that they would suffer significant harm arising from the first applicant’s whistleblowing activity, and involvement in the corruption matter in 2004 ([139]–[142]).
Nor did it accept that there was a real risk of significant harm for reason of their claim that they would suffer extensive financial hardship in Indonesia ([144]).
The Tribunal also found that even if they had some subjective fear for their safety in the Blitar Regency, that the applicants could return to Malang where there was no real risk of significant harm ([143]). The Tribunal had considered evidence before it which suggested that the entire family moved to Malang when the first applicant’s term as village head ceased. In Malang he was employed and the first and second applicants studied at tertiary a level.
In all therefore, the Tribunal found that neither the first or the second applicants would suffer significant harm on return. As to the fourth applicant the Tribunal found that there was not a reasonable chance of serious or significant harm arising from his father’s involvement in the corruption case, his parents financial circumstances, or for any other reason ([147] and [149]).
Before the Court
The application to the Court in this matter was made in November 2016. A Registrar of the Court made orders on 6 April 2017 including for the filing of any amended application (which was done on 8 June 2017) and additional evidence. In January 2018 the matter was re-listed for final hearing on 16 August 2019.
At the hearing the applicants were represented by counsel. The Minister by a solicitor. The first applicant sought leave to be appointed as the litigation guardian for the fourth applicant. It was not necessary to grant any such leave as a Registrar of this Court had already made this order some time previously.
On 26 July 2019 the applicants filed the affidavit of Mr Christopher John McArdle, solicitor, which annexed a proposed further amended application. Mr McArdle gave evidence as to the circumstances of preparing this further amended application at this later stage.
The Minister did not object to the reading into evidence of the affidavit. It was read.
However, the Minister opposed the grant of leave for the applicants to rely on the further amended application. The primary basis for this was said to be a lack of sufficient merit in the proposed grounds.
The proposed grounds of the further amended application as presented were in the following terms:
“1. The Tribunal erred in failing to lawfully consider the applicants’ claim that the first applicant may face persecution or serious harm by facing false charges of criminal conduct.
Particulars
(a)Failure to consider, as opposed to simply record, the first applicant’s explanation of why he believed that his colleague, Edy Murchlison, was falsely charged and convicted with corruption offences because of his part in exposing corruption.
2. The Tribunal erred in failing to consider claims made explicitly or that clearly arose in the information and material before the Tribunal.
Particulars
(a)That a person who has revealed a crime committed by a powerful person may become a target for retribution long after the fact (see CB 564).
(b) That the family of the Regent of Blitar, who died in prison, having been convicted of corrupt activities as a result of the first applicant’s whistleblowing, are likely to be very bitter and want revenge (CB 659).”
[Underlining removed.]
In relation to proposed ground one I agreed with the Minister that no reasonable argument arises, but not necessarily for the reasons the Minister advanced.
The proposed ground, in its terms, is that the Tribunal failed to consider, in relation to one particular, the first applicant’s claim that he may face “persecution or serious harm” by facing charges of criminal conduct on return to Indonesia.
As is clear from the evidence before the Court, and as set out above, the first applicant, and for that matter the second applicant, had previously had their claims for protection based on a fear of persecution and serious harm already considered and determined. This was prior to the making of the application for the visa which was the subject of the Tribunal’s consideration now before the Court.
I do not respectfully understand the full court in SZGIZ, or any other authority, to require the Tribunal in these circumstances to again consider any claim of serious harm or fear of persecution. In fact to the contrary see (AMA15 v Minister for Immigration and Border Protection [2015] FCA 1424, per Markovic J particularly at [47]-[50]).
The fact therefore, that the Tribunal did not consider persecution and serious harm in relation to the first and second applicants does not raise any arguable case for the relief sought. Leave to proceed in relation to ground one (as presented in the further amended application) was therefore refused.
The applicants’ counsel then sought leave to yet further amend the first ground of the proposed further amended application. The Minister did not oppose this. Leave was granted to substitute the words “significant harm” for the words “persecution or serious harm”.
The Minister continued to oppose the grant of leave. The hearing continued with the agreement from both parties that the Court would hear argument in full, and then decide, if appropriate, whether leave should be granted or refused. If leave were to be granted then the Court would proceed, on the basis of having heard the full argument, to make a final determination on the grounds.
I noted with the parties that the Minister could not reasonably argue prejudice (nor did the Minister make such an assertion) in circumstances where he had received reasonable notice of the intention to proceed with a further amended application (albeit with the difficulty concerning ground one as set out above).
The issue then is whether the grounds of the proposed further amended application raise any legally arguable case such that it is in the interests of justice to grant the leave sought.
Having heard argument from both sides I do not agree with the Minister that the grounds do not raise any legally arguable case in the requisite sense. As can be seen below, the applicants’ arguments, at least, reach that threshold particularly in circumstances where in considering arguments that the Tribunal did not address claims clearly arising on the material as presented, the Minister did not dispute that the Tribunal did not make specific reference in its “Findings and reasons” to some of the matters now relied upon by the applicants.
In that light leave to proceed on the yet further amended application (as yet further amended during the hearing) should be granted. The following consideration therefore proceeds on the basis as to whether either of the two grounds can be made out.
Consideration
The essence of the assertion of legal error in ground one is that the Tribunal is required to intellectually and consciously engage with submissions, evidence and materials advanced by the applicants which are most likely to give the Tribunal an “accurate picture” of the ongoing circumstances in the relevant country of nationality.
The applicants rely on a number of authorities in support of those propositions: Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; Sellamuthu v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 287 and Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; SZSSC v Minister for Immigrationand Border Protection (2014) 317 ALR 365.
The basis of ground one with reference to the particular to the ground, is that the Tribunal failed to consider the first applicant’s explanation of why he believed Mr M was falsely charged and convicted of serious charges because of his part in exposing corruption.
In submissions before the Court that explanation was said to have been advanced in context of the provision of a newspaper article concerning Mr M, in submissions made by the applicants’ representative before the Tribunal.
The applicants’ argument was that at the hearing before the Tribunal the first applicant made the claim that he feared prosecution if he were to return to Indonesia after being falsely accused of corruption. In support of this claim the first applicant claimed that Mr M, his friend, and colleague in exposing corruption, had been treated in this way.
The applicants’ assertion before the Court is that while the Tribunal made reference to the newspaper article, it did not refer to the first applicant’s specific explanation (evidence) given at the Tribunal hearing that the reason why Mr M might have been singled out and charged with corruption, was the he had earlier exposed (as had the first applicant) corruption in 2004. That is, Mr M was singled out, from other village heads, who were not charged with corruption, because of his stance against corruption in 2004.
The newspaper article is reproduced at CB 705. It was sent to the Tribunal by the applicants’ migration agent on 8 August 2016 after the adjourned hearing (CB 704):
“…Please find enclosed a copy of the publication related to Edy Mukhlison. This was discussed at the hearing…”.
A further submission was made on 12 September 2016 (CB 720–CB 721) and the identical report was again attached (CB 722).
The applicants have not provided a transcript of the Tribunal hearing to the Court. The Tribunal did refer in its decision record to what occurred at the hearing. In relation to Mr M and the corruption charges against him the Tribunal stated:
“77. The Tribunal asked the applicant to explain further how Mr Muchlison’s case was connected to the applicant noting that he was convicted after a public process involving a public prosecutor and court trial before a panel of judges. The Tribunal noted that the applicant appeared to be suggesting that Mr Muchlison had been falsely charged and convicted and asked who he thought was behind it. The applicant denied that Mr Muchlison had engaged in corruption and said he didn’t understand how a conviction had been secured given that all the other Village Heads were involved but had not been charged. The applicant said he did not know who was behind the arrest and conviction. The Tribunal put to the applicant that there was nothing on the face of the article that suggested that Mr Muchlison had been falsely charged or convicted because of his involvement in the exposure of corruption. Rather, it appeared that he had been prosecuted for engaging in corrupt activities himself. The applicant disagreed with the analysis. The applicant stated that there was a public regulation issued by all of the Village Heads in relation to the issuing of land certificates. If Mr Muchlison had engaged in corruption then all of the Village Heads should have been prosecuted as well because they had issued the same regulation.”
The applicants’ argument before the Court now comes down to the following. The Tribunal recorded the first applicant’s claim concerning Mr M, and his evidence that Mr M had been subsequently charged with corruption, and the first applicant’s evidence as to why this had been done. While the Tribunal recorded this evidence it did not consider it in the appropriate, or requisite, manner as required by the relevant authorities.
In its decision record, under the heading of: “Findings and reasons”, the Tribunal relevantly stated:
“133. The applicant has also attached significant weight to the recently discovered information regarding the imprisonment of Edy Muchlison in 2011. Although the applicant and his representative have suggested that Mr Muchlison must have been falsely charged and convicted, nothing on the face of the Surabaya Post article submitted to the Tribunal suggests this is the case. It is reported that in responding to the conviction, Mr Muchlison did not suggest that he had been falsely charged or convicted but rather claimed that he was acting on the instructions of his superior, the Blitar District Chief. The article indicates that at the time of his conviction, Mr Muchlison was a member of the Provincial People’s Representative Council (DPRD) and that he was convicted by a panel of judges in the Surabaya Corruption Court. The Tribunal is prepared to accept the facts reported in the article in question but is unable to draw the inference suggested by the applicant and his representative that the conviction was falsely secured as a form of revenge for Mr Muchlison’s involvement in the 2004 corruption case.”
It is the case that at [133] the Tribunal did not specifically repeat the first applicant’s specific evidence (now relied on by the applicants) as reported at [77] as having been given at the hearing.
In their submissions in reply the applicants assert that the Minister in his submissions was seeking “to artificially separate” the first applicant’s evidence from its context. The applicants now refer to [75] of the Tribunal’s decision. The entire “context” within which [75] is set is as follows:
“74. Shortly prior to the resumed hearing, the Tribunal received a copy of an article in the English language, apparently sourced from the Surabaya Post, dated 2 July 2011, indicating that Edy Muchlison was found guilty of engaging in corruption during the period in which he was the Village Chief of Jambewangi Village in 2005. The case against Mr Muchlison centred around a regulation issued by Mr Muchlison for the collection of fees for land certification. Mr Muchlison was reported to have stated that he felt his conviction was unfair because he was carrying out the instructions of the Blitar District Chief.
75. At the commencement of the hearing, the applicants’ representative made oral submissions suggesting that the arrest and conviction of Mr Muchlison related to his involvement in the 2004 corruption case. Several additional articles relating to the treatment of whistleblowers in Indonesia were handed up.
76. The Tribunal noted that the article indicated that Mr Muchlison was arrested as a consequence of a regulation he issued in 2005. The Tribunal asked the applicant why it was that he connected the 2011 conviction of Mr Muchlison with his involvement in the 2004 corruption case. The applicant responded that both he and Mr Muchlison had been involved in the land certification program, as had all the Village Heads in Blitar. However, only the applicant and Mr Muchlison had carried on exposing corruption. The applicant stated that he was supposed to be the target but he had already left Indonesia. As Mr Muchlison remained in Indonesia and had also persisted in exposing corruption, they targeted him but really, they wanted the applicant killed.”
What contextually emerges therefore, is that the applicants provided to the Tribunal the report concerning Mr M. At the hearing the applicants’ migration agent suggested that the arrest and conviction of Mr M (in context in 2011) was related to his involvement in the 2004 corruption case.
I pause here to note that a key part of the first applicant’s claim to fear significant harm if he were to return to Indonesia, was that he would be harmed in various ways because of his involvement in exposing corruption in Blitar in 2004.
The Tribunal’s relevant report of the hearing was (as set out at [76] of the Tribunal’s decision) that it told the first applicant (and the second applicant who was present – see [73]) and the applicants’ migration agent, that on its face the article reported that Mr M was arrested in 2011 because of a regulation he himself issued in 2005. In context that did not connect his arrest and conviction in 2011 to the earlier events of 2004.
Given what is plainly stated in the report (CB 722) this is a reasonable reading of it. In any event the applicants do not now seek to impugn the Tribunal’s decision on this specific point.
The Tribunal then reports that it asked the first applicant the reason for the connection (advanced on his behalf by his migration agent) between the 2011 conviction of Mr M with his involvement in the 2004 corruption case. Again in the circumstances a reasonable question arising specifically from the submission made by the migration agent.
The first applicant gave his response. This commenced by stating (as reported at [76]) that he and Mr M and all the village heads had been involved in “the land certification program…in Blitar”.
This requires some focus. As was stated in the report (CB 722):
“…the corruption was committed when Edy [Mr M] was the Jambewangi Village Chief in Selopuro, Blitar in 2005. At that time, Edy issued Village Regulation No. 5/2005 on the collection of fees for land certification as part of the Land Management Development Program (LMPDP)”.
It was in these circumstances reasonable for the Tribunal to then ask the first applicant (as reported at the first sentence of [77]) “…to explain further how Mr [M’s] case was connected to the [first] applicant”.
Plainly when viewed in context (as the applicants’ submissions now before the Court say this should be viewed) the Tribunal’s request for a further explanation was prompted by what appeared to be a disconnect between the first applicant’s response to the question initially asked.
That is, the first applicant claimed (through his migration agent) that the 2011 conviction of Mr M was linked to the event of 2004. Yet as the Tribunal pointed out the report itself connected that conviction to another event (the event in 2005), and not to the event in 2004.
The first sentence of [77] therefore, derives from the first applicants attempt to link the conviction in 2011 to the event of 2004, when the report on which he otherwise relied made no such link, and linked it to another event in 2005.
The second part of the first sentence at [77] plainly records the Tribunal’s concern that a further explanation was also required because the report referred to a “public process involving a public prosecutor and court trial before a panel of judges”.
It is to be remembered that the migration agent’s initial submissions that precipitated this exchange at the Tribunal hearing was that the arrest and conviction of Mr M was related to his involvement in the event of 2004, not 2005.
It was reasonably open to the Tribunal given the first applicant’s subsequent attempts to explain this connection, and the connection to him, for the Tribunal to understand that one aspect of the first applicant’s claim was that, in essence, the 2011 arrest and conviction of Mr M was false, and was contrived because of his conduct in 2004.
The first applicant’s response was to deny that Mr M had engaged in corruption (in context in 2005 leading to the conviction in 2011). He stated that he did not understand how the conviction had been secured. In explaining this he returned to the claim as reported at [76], that all the village heads had been “involved but had not been charged”.
The Tribunal reports that it put to the first applicant that there was nothing in the report to suggest that Mr M was charged and convicted because of his involvement in the event of 2004. The Tribunal put that, plainly, he had been charged and convicted because he had been involved, subsequent to 2004, in corrupt activities himself.
The Tribunal reports that the first applicant “disagreed with that analysis”. He repeated that all the village heads should have been charged if Mr M had been charged because all had issued the relevant regulation. It appears this was a reference to the regulation in 2005.
It is in this context that the impugned [133] must be understood.
The Tribunal reasoned (at [133]), plainly with reference to what had been set out at [74]–[77] (and see [78]), that although the first applicant and his migration agent claimed that Mr M had been “falsely charged and convicted” there was nothing on the face of this article to suggest that to be the case.
The Tribunal then referred to aspects of the article which in fact indicated that Mr M himself after the conviction, made no claim to have been falsely charged or convicted, but rather sought to explain his conduct, that is, he (Mr M) was acting under direction.
In short, the first applicant’s reported comment, which in context was supposition on his part, that because Mr M was convicted in 2011, then all the other village heads should have been charged, was put by the first applicant as part of his argument that Mr M had been falsely charged and convicted because of his involvement in the events of 2004.
The Tribunal for reasons that it gave, and which were reasonably open to it, rejected that proposition.
There is no doubt that the Tribunal’s obligation is to consider each claim to fear harm, and relevant aspects of each such claims. Further, and with reference to the authorities relied on now by the applicants, such a claim may arise with reference to submissions, evidence and arguments made by an applicant.
The Tribunal did consider, in the requisite sense, the first applicant’s claim to fear harm. That is that he would be at risk because of his anti-corruption activities in 2004.
In support of that claim the first applicant (and his migration agent) sought to draw an analogy, or parallel, between what had occurred to Mr M in 2011, and what would likely occur to the first applicant if he were to return because of the events of 2004.
On the evidence before the Court the Tribunal engaged with, in the requisite sense, and considered that submission and argument.
As set out above, and as reasoned by the Tribunal, the event that gave rise to the charge and conviction of 2011, was the event of 2005, not the event in 2004. The first applicant’s evidence that Mr M was not corrupt because if he had been all the other village heads would have been similarly charged, and presumably convicted was not relevant to the central claim and question raised by the first applicant that he would be treated in the same fashion as Mr M because of the events of 2004.
Before the Court the applicants’ counsel emphasised that the claim or argument advanced by the first applicant and his representative before the Tribunal was that Mr M had been “singled out” from the other village heads.
The Court was taken to [134] of the Tribunal’s decision record to note the argument that the Tribunal had failed to take into consideration the reason as to why Mr M had been “singled out”. That is, why Mr M, and only Mr M, had been charged in 2011 with corruption for imposing a regulation in 2005, which was supposedly also done by other village heads.
A fair reading of [77] (and see also [134]) indicates that the Tribunal was aware that it was the first applicant’s belief that Mr M was convicted due to his involvement in pursuing the exposure of corruption in comparison to the other village heads.
As set out above, at [77] of the Tribunal’s decision the Tribunal identified that the article submitted by the applicant did not corroborate the applicant’s beliefs. Under the heading “Findings and reasons” at [133] the Tribunal noted that it accepted the facts asserted in the article, however it was unable to draw the same inference as the applicant. The Tribunal stated at [134] that it “is not satisfied on the evidence that there is a connection between Mr Muchlison’s conviction and his involvement in the 2004 corruption case.”
Therefore, the Tribunal was aware of the first applicant’s belief that Mr M was singled out, however did not find on the evidence that there was a connection between Mr M’s 2011 conviction and the events of 2004.
Further, the Tribunal concluded at [134] that it is possible that the first applicant could be subject to the same charges as Mr M on account of his involvement in imposing the regulation in 2005, however such charges would not be laid against the applicant due to his involvement in the events of 2004.
The Tribunal is not obliged to refer in its decision record to every piece of evidence before it (Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 and Applicant A169 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 8). The Tribunal’s obligation is to consider, in the requisite sense of intellectual engagement, all claims, and aspects of claims, made to it expressly or clearly arising in the circumstances presented (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263). Further it is obliged “to respond to a substantial, clearly articulated argument relying up established facts” (Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26).
This is not a case where the applicants have put a transcript of a Tribunal hearing before the Court and pointed to a claim, or evidence or submission giving rise to a claim that was then overlooked by the Tribunal in its decision record.
In the current case the Tribunal reported on the first applicant’s own evidence when it set out its discussion with the first applicant at the hearing. The precise piece of evidence which the applicants now say was not considered was, for the reasons set out above, not in the circumstances, relevant to the claim to fear harm made by the first applicant.
In these circumstances, the Tribunal was not obliged to repeat this particular piece of evidence when it came to set out its findings of fact. Section 430 of the Act only requires that it set out that evidence on which its findings of fact were based.
The Tribunal’s reasoning on this matter was supported at [77]. This is not just some passing reference to a statement made by, or evidence given, by the first applicant. At [77] the Tribunal made clear its view of the first applicant’s evidence.
The Tribunal’s reasons are meant to be read fairly and wholistically. The Tribunal’s decision before the Court is not some evolving draft. It is the Tribunal’s final decision. What the Tribunal set out as its findings, must be read as being informed by what is set out earlier in the decision record.
The Tribunal was not required in the section headed “Findings and reasons” to repeat its reasoning expressed earlier. That reasoning reveals that on the matter of the first applicant’s statement or evidence as to the connection between Mr M’s arrest and conviction in 2011to the event of 2004, the Tribunal was not persuaded that it was connected.
In context whether all the village heads were charged and convicted in 2011, or not, was not seen by the Tribunal as being relevant to the claim that the first applicant would be charged and convicted on return to Indonesia because of the event of 2004.
The Tribunal did engage consciously and intellectually with the first applicant’s statement. It was not persuaded that it was relevant to the disposition of the application for review. The first applicant may now not agree with that Tribunal finding. But this was, in the circumstances presented, reasonably open to the Tribunal.
In all ground one is not made out.
Ground two asserts that the Tribunal failed to consider claims expressly made or clearly arising on the materials before the Court. There are said to be two instances of this having occurred.
First, that the Tribunal failed to consider a claim that a person (such as the first applicant) who has revealed a crime committed by a powerful person may become a target for retribution “long after the fact” “or event”.
The applicant’s submission was that there was expert evidence before the Tribunal in the report of Professor Lindsey (see above at [41]). The “Expert Report of Professor Tim Lindsey” is reproduced at CB 562–CB 568.
For current purposes the applicants directed attention to [12] of the report (at CB 564):
“12. A person who has damaged a powerful patron, for example, by revealing a crime he or she has committed to the authorities, may also become a target of assault or killing by criminals linked to that patron long after the fact. This is because of the obvious deterrent power of violent 'payback' for others who may be considering acting against the patron’s interests. Being seen to be able to hunt down and 'punish' an 'enemy' and his or her family long after the fact enhances the patron's power and reduces the likelihood of others acting against the patron's interests.”
The submission was that this was directly relevant to the risk of future harm for the first applicant. Yet there was no mention of it in the Tribunal’s decision record.
There is no doubt, as set out above, that a failure to consider a claim expressly made or clearly arising on what is before the Tribunal may reveal jurisdictional error. Further, that the Tribunal must engage with such claims in the fashion explained in the authorities relied on now by the applicant.
This raises the question as to what was the claim made by the first applicant that the Tribunal is said to have failed to consider.
As set out above one of the elements, of the first applicant’s claim to fear harm on return to Indonesia, was that he feared harm because in 2004 he, had exposed corruption in the Regency of Blitar.
This corruption (the improper release of funds) was said by the first applicant to have been committed by the head of the Blitar Regency, Imam Muhadi, the Secretary of the Blitar Regency, Subiyanto, the head of the Regency Treasury, Kristanto and an officer in the Regency Treasury, Solikhin (see the first applicant’s written statement at CB 183 -CB 188). The Tribunal acknowledged this in its decision record (see [28] at CB 742).
The Tribunal accepted that the first applicant had been: “involved…in the exposure of corruption in Blitar in 2004” ([118] at CB 756).
The applicants now argue that the relevant part of the report from Professor Lindsey was that a person “…who has damaged a patron may be the victim of reprisals long after the event”. In context the event of 2004. That is, the fear emanated from criminals who would act to protect their patrons (see Professor Lindsey’s report at [11] – CB 564).
In written submissions to the Tribunal dated 29 June 2016 the applicants’ migration agent raised the matter of the persecution of whistleblowers in Indonesia (CB 658-CB 660), and that the first applicant had been such a whistleblower in 2004, when five government officials were prosecuted for corruption. The first (and second) applicant feared harm for this reason.
The Tribunal summarised this claim in its decision record:
“66. The representative’s June 2016 submission summarises the applicants’ claims, namely that the first applicant was a whistleblower in a corruption case in 2004. Five government officials were prosecuted on corruption charges and sentenced to terms of imprisonment. One of those sentenced has subsequently been released and one person, the former Regent of Blitar, died in prison in 2009. The family of the former Regent were likely to be very bitter and their desire to seek revenge and harm the applicants would be lifelong. Whilst the applicants have not been in Indonesia for an extended period of time, their children in Indonesia have been questioned regarding the location of their parents. It was submitted that the applicants’ fear of harm was real and they could not be protected by the State if they return.”
The applicants do not now dispute that this was a fair summary of the submission (although in their submission not comprehensive).
This claim was discussed at the hearing with the Tribunal:
“106. The Tribunal asked the applicant whether he had information about the current circumstances of the five officials who were imprisoned as a result of his exposure of corruption. The applicant said him was not sure of the situation but the family of Imam Muhadi were most interested in seeking revenge because they were members of the PDI-P.
107. The Tribunal noted that it had been 12 years since the applicant had been involved in exposing corruption. The Tribunal asked the applicant why he thought these people would still be interested in seeking revenge. The applicant responded that the arrest and conviction of Edy Muchlison occurred more recently. The Tribunal noted that it had been 5 years since Mr Muchlison had been convicted. The applicant stated that the current President was from the PDI-P party. As long as they were in power, there was an increased risk to the applicant.”
At the time of the Tribunal hearing (31 August 2016) the report by Dr Lindsey was before the Tribunal, as the Tribunal acknowledged in its decision record at [68] g (at CB 747).
The Tribunal specifically made reference to the report by Professor Lindsey in its findings and reasons:
“136. The Tribunal has also considered the expert reports submitted to the Tribunal. The Tribunal accepts the opinions expressed by Prof Tim Lindsay regarding the long established link between politicians and criminal gangs. The Tribunal is prepared to accept, for example, that it is common for politicians in Indonesia to use criminal gangs to intimidate, punish, threaten, injure or kill perceived enemies, including whistleblowers. The Tribunal accepts that official protection for whistleblowers exists in Indonesia but is nugatory. The Tribunal accepts that a whistleblower who is pursued by criminals acting at the behest of a powerful enemy would find it difficult to find a safe haven himself or his family anywhere in Indonesia.”
[Emphasis Added.]
In the circumstances the Tribunal did not ignore Professor Lindsey’s report. On the evidence it engaged with the contents of the report. In an important particular (the link between criminals and politicians) it accepted Professor Lindsey’s opinion.
What therefore, is the essence of the applicants’ complaint now is that the Tribunal made no specific reference to one particular part of Professor Lindsey’s report. Namely that a person (such as the first applicant) who exposed corruption of a powerful “patron” may become the target of criminals “long after the event”.
The Tribunal did specifically consider the issue of the harm feared by the first applicant (in context if he were to return to Indonesia in the foreseeable future after October 2016 – the time of the Tribunal’s decision) because of the event of 2004.
This included, as set out above, specifically the matter of the threat from criminals acting at the behest of politicians (see [107], and in particular [139]). At [139] the Tribunal stated:
“139. Having taken into account this evidence, the Tribunal has considered the personal situation of the applicant were he to return to Indonesia now or in the reasonably foreseeable future. The applicant ceased in his role as Village Head in 2006 and (unlike Edy Muchlison) did not continue to hold any public office following the expiry of his term. The applicant was one of seven Village Heads and 11 public servants involved in exposing the case. As indicated above, the Tribunal is not satisfied that the applicants received any specific threats, experienced any physical harm or faced any criminal charges or investigations after 2004 up until the time of their departures from Indonesia in 2008 and 2009. The Tribunal is not satisfied that the applicant has been pursued by criminals acting at the behest of politicians at any time since 2004. The Tribunal considers that had any of the officials whom the applicant had exposed as corrupt, any members of their families, any criminal gangs affiliated with them or any fellow members of their political parties wished to exact revenge upon the applicant, there would have been ample opportunity for them to do so prior to the applicant’s departure from Indonesia. The evidence before the Tribunal indicates that the main person the applicant feared, Imam Muhadi, the former Regent of Blitar, died in gaol some seven years ago, although the Tribunal is prepared to accept that members of his family continue to be members of the current President’s party.”
[Emphasis Added.]
It cannot be said therefore, that the Tribunal did not consider a claim to fear harm. It was always the first applicant’s claim that he would be targeted when he returned. That is some 12 years after the event of 2004. The Tribunal plainly addressed and considered this. The Tribunal’s finding that the first applicant had not been pursued by criminal gangs at any time since 2004, a finding made as at 2016, was a finding that addressed the claim that he would be pursued at some future time.
The Tribunal made specific reference to the report by Professor Lindsey. It reported generally on its contents. Indeed it specifically accepted that, as Professor Lindsay wrote, the link between politicians and criminal gangs, and the use to which politicians put the criminals to injure or kill perceived enemies, including whistleblowers [136].
As set out elsewhere in this judgment the Tribunal’s relevant obligation is to consider claims (expressly made or clearly arising) to fear harm. This includes claims arising from submissions, evidence and material before the Tribunal. The claim that the first applicant would suffer harm in the reasonably foreseeable future after 2016, because of the event of 2004, was considered by the Tribunal.
Professor Lindsey’s report did not raise any new claim, or integer of a claim in this regard. Rather, it went to the question of the likelihood of the first applicant being pursued by criminals long after the event of 2004.
The Tribunal considered, and found, that there had been no specific threat to the first applicant or his family, since 2004 ([139] at CB 760).
I agree with the Minister that the Tribunal is not required to specifically refer, and record, in its decision record every single statement made in statements or reports provided by an applicant. Section 430 of the Act requires the Tribunal to record evidence on which its findings of fact are based.
The Tribunal made specific, and positive references to Professor Lindsey’s report, including on the matter of the actual claim made by the first applicant. The Tribunal reasoned, and found, that the applicants had not been the subject of any threats since 2004. In the circumstances it is reasonable to infer that the Tribunal knew of Professor Lindsey’s statement (plainly it had read the report), but did not consider it to be material to its finding given that other evidence before it, which it preferred, and on which it based its findings. That is, that the applicants would not likely suffer harm on return for reason of being targeted by criminals acting for politicians at any time. In context including long after the event.
In all the first particular to ground two is not made out.
The second particular to ground two asserts that the Tribunal failed to consider the claim that the family of the Regent of Blitar, who subsequently died in prison and, was convicted as a result of the first applicant’s activity (in context this could only be in 2004), are likely to be very bitter and seek revenge.
The applicants, again, point to one sentence, this time in submissions to the Tribunal by the applicants’ migration agent (see at CB 659):
“The Regent of Blitar died in prison before his release and therefore his family are likely to be very bitter and want their revenge and will their desire to harm the applicants will be lifelong…”
The complete paragraph also includes:
“…While the applicant’s have not been in Indonesia for an extended period of time, their children in Indonesia are questioned regarding the location of their parents. The applicants’ fear of persecution is real and they will not be protected by the state if they return.”
As set out above at [131] in this judgment the Tribunal made specific reference to this submission at [66] (CB 746). The Tribunal therefore expressly acknowledged this submission.
Further, the Tribunal did consider the claim of a fear of harm from family members of those convicted, including, and specifically, the family of the former Regent of Blitar, whom the Tribunal accepted continued to be members of the current Indonesian President’s political party (at [139] of the Tribunal’s decision record– see [139] above).
As with the first particular to ground two, this particular also relies on the claim to fear harm said to emanate from the event of 2004. In this instance it is said to emanate from the family of one of the persons convicted as a result of the first applicant’s activities in 2004.
The Minister’s submission is that the reason that the Tribunal gave for finding that there was no real risk of significant harm to the applicants from this (and other) family was that no threats were made against the first applicant’s family since 2004, including when he returned to Blitar in 2010 (see [130]).
The Tribunal acknowledged the specific submission (on which the applicants’ particular now relies) and considered and determined, for reasons given, that the likelihood of threat in the future was remote. That was sufficient to properly consider the claim to fear harm as made.
It is also important to note that the applicants have now selected and rely on one sentence of their migration agent’s submissions for the purposes of this particular.
However, the entire paragraph in which this sentence is found (see [149]-[150] above) reveals that that submission also involved the assertion that the first applicant’s remaining children in Indonesia were questioned regarding the location of their parents.
In context, given that the migration agent’s statement follows the sentence on which the applicants now rely, this would indicate that the questioning was said to have been done by, or on behalf of, the family of the former Regent.
As set out above the Tribunal made specific reference to the former Regent’s family. That is, what is set out at [139] encompasses the situation of the former Regent’s family.
The Tribunal’s reasoning in this regard was that, in acknowledging the submission about the family, the Tribunal found common with other families of corrupt officials, that if they were minded, or likely, to want to harm the first applicant and his family in the future, they would have attempted to do so in the past.
The Tribunal found that if they had wanted to exact revenge there had been ample opportunity in the past to do so, and they did not do so. Noting of course that the first and second applicants’ other children continued to live in Indonesia.
The applicants’ migration agent submitted that the former Regent’s family may seek revenge in the future. Putting to one side that in the circumstances presented this was speculative, the Tribunal understood this submission, and the claim to which it was directed. It simply found that given past events, in effect, the likelihood of this occurring in the future was remote.
It is the case that the likelihood of future harm can be informed by past events. Plainly in this case the applicants seek to rely on the past event in 2004. What is missing in the applicants’ argument now is to satisfactorily address the Tribunal’s reasoning that the likelihood of future harm for the first applicant emanating from the Regent’s family was remote given that with the passage of time from the event which is said to have given rise to the desire for revenge by the family (that is the death in custody of the Regent in 2009) did not result in any action against the first applicant or his family, despite opportunity to do so.
Before the Court the applicants agreed with the Minister that the Tribunal did identify at [66] the submission that the relatives of the Regent of Blitar “would be upset and would seek revenge”. The applicants submitted that the Tribunal failed to address the “change of circumstances” at [139], in reference to the Regent of Blitar passing away in prison.
At [66] the Tribunal noted the submission made by the applicant’s migration agent including, that “…the former Regent of Blitar, died in prison in 2009. The family of the former Regent were likely to be very bitter and their desire to seek revenge and harm the applicants would be lifelong.” The Tribunal was aware of the submission or claim that the Regent’s relatives “would be upset and would seek revenge” in the context of the Regent passing away in prison.
A fair reading of the Tribunal’s decision record at [139] indicates that the Tribunal did take into consideration that the “the former Regent of Blitar, died in gaol some seven years ago, although the Tribunal is prepared to accept that members of his family continue to be members of the current President’s party.” At [142] the Tribunal concluded, that considering all of the “[first] applicant’s personal circumstances”, that there was not a “real risk” that the first applicant would experience significant harm in connection with the corruption case.
On the evidence before the Court, the Tribunal’s decision is comprehensive of all of the claims, including claims advanced by way of submissions, to fear harm made by the applicants. What the applicants have now sought to do by ground two is to select two sentences out of the large volume of material put before the Tribunal by the applicants and to argue that the Tribunal failed to specifically consider two sentences contained in this material, essentially because the Tribunal did not repeat these two sentences in its findings and reasons.
Tribunal decisions are meant to be read fairly. Simply because the Tribunal did not record in its decision record every single sentence contained in all the material put before it, does not automatically mean that any clearly articulated substantial claim to fear harm whether arising out of submissions, reports, or oral evidence, or otherwise was not properly considered in the requisite sense.
For the reasons set out above the second particular to ground two is not made out.
Conclusion
The grounds of the further amended application (including as yet further amended at the hearing) are not made out. It is therefore appropriate to dismiss the application as amended. I will make the appropriate order.
I certify that the preceding one hundred and seventy (170) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 28 August 2019
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