SZRHS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCA 123
•12 February 2020
FEDERAL COURT OF AUSTRALIA
SZRHS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 123
Appeal from: SZRHS & Ors v Minister for Immigration & Anor [2019] FCCA 2383 File number(s): NSD 1472 of 2019 Judge(s): THAWLEY J Date of judgment: 12 February 2020 Cases cited: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107
Singh v Minister for Home Affairs [2019] FCAFC 3
Date of hearing: 12 February 2020 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 39 Counsel for the Appellants: Mr L Karp Solicitor for the Appellants: McArdle Legal Counsel for the Respondents: Ms A. Douglas-Baker Solicitor for the Respondents: Australian Government Solicitors ORDERS
NSD 1472 of 2019 BETWEEN: SZRHS
First Appellant
DON16
Second Appellant
DOO16 (and another named in the Schedule)
Third Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
THAWLEY J
DATE OF ORDER:
12 FEBRUARY 2020
THE COURT ORDERS THAT:
1.The appeal be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from transcript)THAWLEY J:
BACKGROUND
The first appellant is an Indonesian national born in Blitar, East Java. The second to fourth appellants are the first appellant’s wife and children.
The first appellant was a Chief of Village in Blitar between 1998 and 2006. On 3 March 2004, he was told by the central government through the Regional Income Office that the Blitar Regency would be receiving 1.3 billion rupiah from the central government as “tax restitution”. This was to be divided between the 248 villages in the Regency.
Two days later, the first appellant and his colleague, Mr M, met with the Regional Secretary and the Regional Income Office. The Regional Secretary informed the first appellant and Mr M that there was only 266 million rupiah left because the money had been distributed to the Regent, the Deputy Regent, the Regional Secretary, the Head of the Regional Income Office, the Parliament and others.
The first appellant and Mr M undertook further investigations which revealed corrupt conduct on the part of the head of the Blitar Regency (Regent Imam Muhadi), the Secretary of the Blitar Regency (Subiyantoro), the head of the Regency Treasury (Kepala Kas Daerah), (Kristanto) and a staff member in the Regency Treasury (Solichin).
On 7 April 2004, the first appellant and some of his colleagues reported the matter to the Attorney General in Jakarta. On 9 April 2004, the first appellant’s wife received a threatening phone call warning her to forbid her husband from revealing corruption in Blitar if he wanted to stay alive. On 12 April 2004, the first appellant provided preliminary evidence of corruption to the Regional Attorney General’s Department and agreed to be a witness. During the course of the investigation, the first appellant said he continually received threats and anonymous phone calls.
The colleagues who had gone to Jakarta with the first appellant faced similar problems. In the end, only two of the seven village heads persisted with their claims of corruption. The two remaining village heads were the first appellant and Mr M.
Mr M’s house was bombed with a Molotov cocktail. The first appellant decided to move his family.
The first appellant said that on one occasion five people came to his office and tried to tell him to stop the corruption case but his village people protected him.
The first appellant was pursued by the Regent and his staff at his office but the first appellant did not attend his office on that occasion. The first appellant moved around with his family, although he completed the remainder of his term as the village head which expired on 6 January 2006.
The second appellant departed Indonesia for Australia in 2008 and the first appellant followed in 2009.
Ultimately the Regent, Subiyantoro, Kristanto and Solichin were imprisoned. The Regent died in prison in 2009.
At the end of September 2010, the first appellant tried to return to Indonesia, but once he arrived he was told by friends that it was not safe for him to be there. Those who were convicted as a result of the first appellant’s revelations were due to be released in 2011 and he considered that they still posed a threat.
In 2011, Mr M was convicted of engaging in corruption in relation to events which occurred in 2005 and imprisoned.
THE ISSUES ON THE APPEAL
By six grounds of appeal, the appellants contended that the primary judge erred in failing to find jurisdictional error on the part of the Tribunal. The Tribunal was alleged to have erred in the following ways:
(1)First, it was contended that the Tribunal failed to consider the first appellant’s explanation as to why he believed that Mr M being charged and convicted of corruption in respect of events in 2005 was relevant to Mr M and the first appellant having revealed official corruption in 2004 (grounds 1 to 3).
(2)Secondly, it was contended that the Tribunal did not consider evidence contained in part of an expert report by Professor Lindsey (grounds 4 and 5). Allied to this contention was a submission that, if the Tribunal did consider this evidence, the Tribunal unreasonably or irrationally concluded that the evidence was not relevant to the claim which had been made.
(3)Thirdly, it was contended that the Tribunal failed to consider the claim that the family of the Regent of Blitar, who had died in prison, would be very bitter and would seek revenge (ground 6).
CONSIDERATION
First Issue
The Tribunal recorded at T[74]-T[78], T[82], T[106]-T[107], T[116] and T[133]-T[135]:
CONSIDERATION OF CLAIMS AND EVIDENCE
…
Review application
…
Tribunal hearing – 31 August 2016
…
[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 [Mr M] 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 M] centred around a regulation issued by [Mr M] for the collection of fees for land certification. [Mr M] 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 M] 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 M] 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 M] with his involvement in the 2004 corruption case. The applicant responded that both he and [Mr M] had been involved in the land certification program, as had all the Village Heads in Blitar. However, only the applicant and [Mr M] had carried on exposing corruption. The applicant stated that he was supposed to be the target but he had already left Indonesia. As [Mr M] remained in Indonesia and had also persisted in exposing corruption, they targeted him but really, they wanted the applicant killed.
[77]The Tribunal asked the applicant to explain further how [Mr M]’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 M] had been falsely charged and convicted and asked who he thought was behind it. The applicant denied that [Mr M] 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 M] 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 that 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 M] had engaged in corruption then all of the Village Heads should have been prosecuted as well because they had issued the same regulation.
[78]The Tribunal indicated to the applicant that it was interested in knowing who he thought had orchestrated [Mr M’s] conviction given that the persons whom he and the applicant had exposed for engaging in corrupt behaviour had been imprisoned and the former Regent had now died. The applicant stated that he had been involved in exposing a major case of corruption that went all the way to the President. The person the applicant accused of being corrupt, Imam Muhadi, was the right hand of the President. All of his siblings were members of the President’s political party. The Tribunal asked the applicant whether he was saying that members of the political party had orchestrated the conviction. The applicant said he did not know because he had been in Australia.
…
[82]… The Tribunal put to the applicant that it appeared that he placed significant weight on [Mr M’s] conviction in thinking about what might happen to him if he returned to Indonesia. The applicant agreed…
…
[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 [Mr M] occurred more recently. The Tribunal noted that it had been 5 years since [Mr M] 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.
…
Post-hearing submissions
[116]On 12 September 2016, the applicant’s representative made additional written submissions regarding the conviction of [Mr M] in 2011. The representative submitted that this information was not before the previous decision-makers who had found that because of the passage of time there was no longer a risk to the applicant. The submission stated that [Mr M] and [sic] was able to evade his enemies for seven years but was ultimately falsely charged with a criminal offence.
…
Findings and reasons
…
[133]The applicant has also attached significant weight to the recently discovered information regarding the imprisonment of [Mr M] in 2011. Although the applicant and his representative have suggested that [Mr M] 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 M] 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 M] 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 M’s] involvement in the 2004 corruption case.
[134]The Tribunal notes that the Surabaya Post article indicates that [Mr M] was charged with corruption committed in 2005 at the time that he was the Village Head of Jambewangi in Blitar. As indicated above, the Tribunal accepts that the applicant was Head of his own village in Blitar at the same time. The applicant has claimed that he was involved in administering the same program around which [Mr M’s] corruption charges centred. In these circumstances, the Tribunal considers it entirely possible that the applicant could be subject to prosecution if he was involved in the same activities as [Mr M]. The Tribunal is not satisfied on the evidence, however, that such charges would be falsely laid or involve anything other than the application of lawful sanctions that are not inconsistent with the Articles of the ICCPR. The Tribunal is not satisfied on the evidence that there is a connection between [Mr M’s] conviction and his involvement in the 2004 corruption case. Nor is the Tribunal satisfied on this evidence alone that there is a real risk of the applicant being falsely prosecuted on any other basis.
[135]The Tribunal has, however, considered the evidence regarding [Mr M’s] conviction together with the general information regarding the treatment of whistleblowers in Indonesia submitted by the applicant and his representative. This includes a Jakarta Post article dated 19 October 2012 referring to cases where whistleblowers have been prosecuted as a result of counter-attacks from the people they exposed.
The newspaper article included the following:
In response to his conviction, the defendant immediately declared that he will lodge an appeal. “This is not fair, I will appeal,” said [Mr M] after the hearing. He felt that it was not fair because his actions were carried out at the instruction of the Blitar district chief. Therefore, he was only executing the instruction of his superior. “Because at that time I was only the Village Chief. So I executed the instruction given by the District Chief,” he said.
As reported in the news, the corruption was committed when [Mr M] was the Jambewangl Village Chief in Selopuro; Blitar in 2005. At that time, [Mr M] issued Village Regulation No. 5/2005 on the collection of fees for land certification as part of the Land Management Development Program (LMPDP). The regulation stated that every person was required to pay IDR 195 thousand per block of land. However, the existing regulations state that no land certification requires the collection of fees, or in other words, the process is free, because this program is carried out by the central government.
The first appellant’s original claim to the Tribunal was that the arrest and conviction of Mr M related to his involvement in the 2004 corruption case: T[75]. The Tribunal, however, raised with the first appellant that the newspaper article linked Mr M’s conviction to his conduct in 2005, not 2004: T[76]. It was in response to the Tribunal’s inquiry that the first appellant submitted that Mr M was targeted in relation to events in 2005 by reason of his involvement in exposing corruption in 2004.
The appellant’s rationale for his belief that false charges had been laid, or that Mr M had been targeted, was recorded by the Tribunal at T[76]-T[77]. In simple terms, the conduct in respect of which Mr M was charged and convicted was conduct which had been engaged in by all of the Heads of Village. The first appellant contended that the Tribunal should infer that, because Mr M was the only person who was prosecuted, Mr M was being targeted because of his role in exposing corruption in 2004.
The Tribunal did not fail to consider the first appellant’s explanation of why he believed Mr M’s prosecution and conviction related to the events of 2004. A conclusion that a decision maker failed to consider a claim to which the decision-maker expressly referred is not lightly made: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 at [48]. The Tribunal referred to the first appellant’s explanation at T[76] and T[77] and it considered the explanation but did not agree with it: at T[133] and [134], in particular in the final sentence at T[133]. The appellants submitted that his explanation was not “evaluated”. The Tribunal did evaluate the first appellant’s explanation and submission: it did not draw from the facts the inference that the appellants submitted it should draw. It expressly said so. It was open for the Tribunal not to accept that the inference should be drawn. One of the reasons it gave for not drawing the inference was the fact that, according to the newspaper article, Mr M did not assert that he was being singled out by reasons of his involvement in the events of 2004. Rather, Mr M said he was acting on the orders of others.
The appellants have not discharged the onus of establishing that the Tribunal failed to consider the explanation given by the first appellant.
In the context of grounds 1 to 3, the appellants contended that the Federal Circuit Court of Australia erred in concluding at J[102] that the first appellant’s “evidence and submission that [Mr M] was singled out for charges … despite many others having at least potentially engaged in such conduct” was not relevant to the appellant’s circumstances. This submission revolved around, and incorrectly summarised, what the Federal Circuit Court stated at J[102]:
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.
Contrary to the appellants’ submission the primary judge did not characterise as irrelevant to the first appellant’s circumstances, the first appellant’s claim that Mr M was singled out.
The primary judge was simply stating that whether or not Mr M was in fact corrupt was subsidiary to the first appellant’s central claim. The first appellant’s central claim, so far as it concerned the prosecution of Mr M, was that the first appellant might also be targeted because he too had been involved in exposing corruption in 2004. Whether or not Mr M had in fact been corrupt in 2005 was of subsidiary importance. Whether or not the conduct in 2005 was in fact corrupt, the first appellant was concerned that he might be singled out in the same way he contended Mr M was singled out.
Second Issue
The appellants submitted that the Tribunal failed to consider the claim that a person who has revealed a crime committed by a powerful person may become a target for retribution long after the relevant events.
Professor Lindsey had provided an expert report comprising 10 pages, which included:
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 appellants contended that the Tribunal failed to refer in its reasons to the fact that a person might become a target “long after the fact” and that it should be inferred from that failure that the Tribunal failed to consider the evidence.
The claims which the first appellant made included that he would be persecuted as a whistleblower because of the events in 2004. At T[66] the Tribunal recorded:
… 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.
At T[107] the Tribunal stated:
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 [Mr M] occurred more recently. The Tribunal noted that it had been 5 years since [Mr M] 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.
The Tribunal expressly referred to Professor Lindsey’s report at T[136], stating:
The Tribunal has also considered the expert reports submitted to the Tribunal. The Tribunal accepts the opinions expressed by Prof Tim Lindsay [sic] 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.
The Tribunal also summarised the reports of Dr Baker and Dr White: at T[137] and T[138]. It noted at T[138], that “Dr White submits that the applicant remains in grave danger of serious physical harm from elements associated with the former Regent of Blitar's entourage due to being one of the seven whistleblowing Village Heads in the Blitar corruption case”.
At T[139]-T[141] 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 [Mr M]) 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.
[140]The evidence does not indicate that the applicant was regarded by his community as a 'pariah' or that he or any member of his family has been denied employment or education. To the contrary, the applicant claims to have received support and protection from his community. The first and second applicants' pursuit of tertiary qualifications and further employment during this period, their delay in departing Indonesia and delay in applying for protection all suggest to the Tribunal that they were not genuinely fearful for their safety at the time of their departure from Indonesia even if they had been at an earlier point in time.
[141]The Tribunal is not satisfied that there have been any threatening visits to the homes where the applicant's children have been residing in Indonesia. It has now been 12 years since the applicant's involvement in the Blitar corruption case and 10 years since he last held public office. Given that the applicant withdrew from public life following the expiry of his term as Village Head and embarked upon a career as a legal aid lawyer, the Tribunal is not satisfied that the applicant would resume public life or involve himself in politics should he return to Indonesia.
The Tribunal was not obliged to refer to all aspects of the evidence – cf: Singh v Minister for Home Affairs [2019] FCAFC 3 at [37(2)(b)], [40]. The Tribunal’s reasons must be read fairly. In my view, it is sufficiently clear from the passages set out above that the Tribunal essentially accepted the evidence of Professor Lindsey. It expressly accepted that “politicians use criminal gangs to intimidate, punish, threaten, injure or kill perceived enemies, including whistleblowers”. It accepted that retribution might occur. It also implicitly accepted that, in principle, retribution might occur long after the relevant events. It was for that reason that the Tribunal turned to consider the evidence of whether the appellants had in fact been pursued in the years between the events in 2004 and the date of the hearing. This was relevant in determining whether the first appellant was still at risk. It was not unreasonable or illogical to consider those matters.
The Tribunal appreciated that the first appellant claimed to fear harm should he return to Indonesia including from the family of the Regent of Blitar and those officials who has been jailed as a result of the first appellant’s actions in 2004. The Tribunal’s awareness of the issue is made plain in the reasons at T[66], T[107], T[138] and T[139]. In 2016, when the Tribunal heard the case, that was already 12 years after the relevant events. As it recorded at T[139], the Tribunal was not satisfied that the first appellant has been pursued by criminals acting at the behest of politicians at any time since 2004.
Reading the Tribunal’s reasons fairly and as a whole, the Tribunal concluded that the first appellant and his family were unlikely to be targeted so long after the events, even taking into account the bitterness of the family of the late Regent of Blitar and the links between criminal gangs and politicians and the evidence of the three experts which included that the first appellant remained in danger: T[138]. I do not infer from the failure to refer to the identified passage of Professor Lindsey’s report that the evidence was overlooked.
The first appellant submitted that the Federal Circuit Court erred in stating at J[146]:
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.
I do not read that paragraph as meaning that the primary judge considered the Tribunal thought Professor Lindsey’s evidence was irrelevant. In any event, for the reasons given, in my view the Tribunal did take into account Professor Lindsey’s evidence. Indeed, it also took into account Dr White’s evidence to the effect that the first appellant remained in danger. For the reasons it gave, the Tribunal reached the conclusion that the first appellant was not in danger. It was permitted to take into account what had happened between 2004 and the Tribunal’s decision in reaching that conclusion. The question is not whether this Court would reach a different view, but, whether the Tribunal’s reasons have been shown to be affected by material jurisdictional error. They have not.
Third Issue
The appellants contended that the Tribunal did not consider the claim that the relatives of the former Regent of Blitar would be bitter and seek revenge.
A fair reading of the reasons as a whole, in particular the express references to the claim of a threat from members of the Regent’s family or his associates in T[66], T[138], T[139] and T[146] indicate the Tribunal did consider that claim. In my view the Tribunal adequately considered the claim advanced.
CONCLUSION
The appeal must be dismissed.
I certify that the preceding thirty nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Thawley. Associate:
Dated: 14 February 2020
SCHEDULE OF PARTIES
NSD 1472 of 2019 Appellants:
Fourth Appellant:
DOP16
0
2
0