FEDERAL COURT OF AUSTRALIA

Machmud v Minister for Immigration & Multicultural Affairs [2001] FCA 1041

MIGRATION – review of decision of Refugee Review Tribunal – whether Tribunal failed to exercise jurisdiction by not considering certain country information – whether decision involved error of law – whether Tribunal erred in requiring applicant to substantiate claims

Migration Act 1958 (Cth) ss 476(1)(c), 476(1)(e)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 referred to

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 discussed

FAIZAWATI MACHMUD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1316 OF 2000

HILL J

3 AUGUST 2001

SYDNEY

THE COURT ORDERS THAT:

1.                  The decision of the Refugee Review Tribunal be set aside.

2.                  The matter be remitted to a differently constituted Tribunal to consider and determine the application according to law.

3.                  The respondent Minister pay the costs of the applicant.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicant, Faizawati Machmud applies to the Court for judicial review under s 476 of the Migration Act 1958 (Cth) (the “Act”) of a decision of the Refugee Review Tribunal (the “Tribunal”) affirming the decision of a delegate of the Respondent Minister for Immigration and Multicultural Affairs (the “Minister”) not to grant to her a protection visa.  It is a requirement of s 65(1) of the Act that a visa may be granted only if the decision-maker is satisfied that the prescribed criteria set out in the Act and the regulations to it have been satisfied.  It suffices here to say that it is a requirement for a Protection Visa that the applicant be a person to whom Australia has protection obligations by virtue of that person being a refugee as defined in the 1951 Convention Relating to the Status of Refugees as varied by the 1967 Protocol Relating to the Status of Refugees (compendiously referred to as the “Convention”). 

2                     The applicant is a citizen of Indonesia who arrived in Australia on 30 January 1999.  Shortly thereafter she lodged an application for a protection (class AZ) visa. In her application, which was before the Tribunal, she referred to a document which was called her “attached claims”.  In that document in response to question 36 on the application form, vis “Why did you leave that country?”, she said:

“I had to leave Indonesia primarily for reasons of:

·        Political imbalance (may lead to persecution and rape),

·        Persecution for being a Christian (non Muslim).

Due to political imbalance I lived with great fear, danger and uncertainly.  The political structure/system has been paralysed for decades and the political reformation seems to have no future.  I believe that in Indonesia there is no justice, since the Government could not provide me with fair treatment in economic, education, social and political positions.

I fear persecution if I attempt to voice my own views/opinions regarding social and             political injustice.  The evidence is clear that many activists have been persecuted, arrested, kidnapped and imprisoned.  There were even deliberate murders committed by the Authorities during the student (university) protests.

Another reasons for leaving my own country is because of the severe racism, strong social jealousy between Muslims and Christians.  These severe racism and strong jealousy have caused me to live in great danger.  These racism and jealousy toward Christians have reached to the extent of persecution rape and even murder.  The last reason is that, I could not enjoy/obtain spiritual peace in my religion (Christian).  There are persecutions to the Christian committed by mostly Muslims (non-Christian) people.  The evidence was that, since the massive riots throughout Indonesia and recently in Jakarta, there a lot of Churches were destroyed, damaged and burned and also killed some innocent Christian people savagely in public.

As a result of the abovementioned reasons, I feel unsafe going out anywhere and anytime in Indonesia, particularly considering the current situation…”

3                     In answer to question 38: “Who do you think will harm or mistreat you if you go back?”, the applicant said, inter alia:

“The most likely possible sources of harm derive from:

·        Government: the political imbalance has taken away my freedom and sense of security.  The authorities may persecute me for voicing my own right, democracy and justice.  It seems that there are no promising justice and further political reformations.

·        Muslims: Certain Muslim followers are persecuting non-Muslims (mostly Christian) in secret and openly.”

            There was considerably more in the same vein in the claims made by the applicant.

4                     The delegate refused the applicant’s application and in the result she applied to the Tribunal for review of that decision.  In accordance with the usual procedure the delegate’s reasons for refusal were forwarded to the Tribunal.  The delegate’s reasons referred to certain specific independent country information which, inter alia, noted that the ethnic Chinese community in particular was the target of violence.  The Indonesian Chinese minority as the information stated is mostly Christian though it must be said that the applicant appears not to be Chinese but rather Indonesian Dutch, if that can be said to constitute an ethnic classification.  Other country material noted religious persecution against Christians.

5                     However, it may be said that the general thrust of the material was that the authorities in Indonesia were no longer remaining inactive but were taking appropriate measures against perpetrators of violence be they Muslims or Christians.

6                     After the application to the Tribunal had been lodged, the Tribunal wrote to Ms Machmud indicating that the Tribunal would look at the papers to determine whether it could make a decision in her favour.  On 29 August 2000, the Tribunal wrote to the applicant indicating it had looked at all the material relating to her application but was not prepared to make a favourable decision on that information alone.  In accordance with a customary form the Tribunal advised the applicant that she was invited to come to a hearing to give oral evidence and present arguments in support of her claim.  The date nominated was 2 November 2000.  The letter noted that if the applicant did not attend the hearing and a postponement was not granted the Tribunal might make a decision on her case without further notice. 

7                     On 2 November 2000, the applicant wrote to the Tribunal (the letter was received that day, but apparently after the Tribunal had ended its hearing) advising the Tribunal that she was unable to attend the hearing, said to be “tomorrow at 10.30 am”, “due to [her] business commitment”.  She indicated that she had made every attempt to be at the hearing and that she hoped that the Tribunal would make a decision in her absence. 

8                     Ultimately, on 8 November 2000, the Tribunal (through the Deputy Registrar) advised the applicant it had considered all the material relating to her case and had made a decision which was to be handed down on 22 November 2000.  It is the decision handed down on that date and in particular the conclusion reached in it which the applicant now wishes the Court to review. 

9                     Having regard to the grounds of review it is necessary to say something about the Tribunal’s reasons which one may say were very brief.  The Tribunal, after setting out the standard discussion of the relevant High Court authorities, turned to what it referred to as “claims and evidence”.  The Tribunal said under this heading:

“In her primary application, the Applicant claimed that she left Indonesia because of the severe racism and strong social jealousy between Muslims and Christians, and this had led to the persecution, rape and murder of Christians in Indonesia.  As a consequence she could not enjoy or obtain spiritual peace in the practice of Christianity. … The Applicant made several generalised statements about the persecution of Christians; the inability of Christians to obtain freedom and spiritual peace in the practice of their religion or to obtain the protection of the authorities; the uncertainty of the future; and rising unemployment, frustration and violence amongst the Indonesian population.”

10                  The Tribunal then noted that it had advised the applicant that it was unable to make a favourable decision on the information alone which she had provided, but that she had notified the Tribunal that she was unable to attend.

11                  The Tribunal then set out its “findings and reasons” and its “conclusion”.  In light of the arguments, I set out in full the matter appearing under these headings.

            “FINDINGS AND REASONS

The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed.  It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596.  Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts.  A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45.  Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MIEA (1994) 52 FCR 437 at 451. 

Although given every opportunity to provide evidence (including oral evidence) to the Tribunal to substantiate her claims, the Applicant has chosen not to do so.  In the absence of any evidence, I cannot be satisfied of the truth of any of her statements.  Although the Applicant made many generalised claims about, inter alia, the persecution of Christians in Indonesia, I note that she did not claim to have suffered persecution herself.

On the meagre evidence available to me, I cannot be satisfied that the Applicant has         ever suffered persecution for a Convention-related reason or has a well-founded fear of so suffering in the reasonably foreseeable future.

CONCLUSION

Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.  Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.”

12                  Counsel for the applicant sought and obtained leave to file in Court an amended Application for an Order of Review setting out in essence two grounds.  The first ground noted was that the Tribunal did not have jurisdiction to make the decision.  Particulars of the ground indicated that this was intended to comprehend an argument that the Tribunal failed to consider the independent information in the file before it that Christians generally were at risk of persecution in Indonesia.  The second ground, which was sought to be raised under either  s 476(1)(c) or (e), was that the decision was not authorised by the Act or the regulations to it or involved an error of law in that the Tribunal had just not dealt at all with the applicant’s claim that she was at risk of persecution if she attempted to voice her own views or political opinions.

13                  At the hearing, and no doubt echoing a comment made from the bench, Counsel for the applicant sought to add an additional ground to the effect that the Tribunal considered that there was a need to substantiate claims to satisfy the requirements for a protection visa and that this also involved an error of law.  No objection was raised to the amended grounds of review nor, but for a question of costs, was objection raised to the addition of the third ground sought to be added at the hearing.

14                  I must say that I feel considerable sympathy for the Tribunal and the conclusion it reached.  If an applicant does not turn up at what must, for a refugee, be one of the most important appointments in life, it is not surprising that a Tribunal might regard the factual matrix claimed with a degree of scepticism.  However, that sympathy must not be allowed to distract from the necessity for the Tribunal, even if required to review on paper an application, to do so in accordance with law.  If a ground of review is made out, it will not avail the Minister to argue that the Tribunal’s decision was correct because the applicant did not turn up at all. 

15                  The Tribunal’s statement of reasons is, to say the least, not particularly precise.  That of course is not a ground of review.  It is authoritatively established that the reasons of the Tribunal should not be scrutinised with an eye attuned to error (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 referring, with approval, to the decision of a Full Court of this Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287).  It is possible to read the Tribunal as saying that there was no evidence at all before it with the consequence that the applicant had failed to satisfy the Tribunal that she was a refugee.  That is not so, in that there was evidence before the Tribunal, namely the applicant’s statement.  Whether the Tribunal accepted that statement or not was a matter for it.  There was also, as Counsel for the applicant says, the independent country information which was evidence from which it was open to the Tribunal to conclude that her claim of religious persecution might succeed.

16                  There is also the suggestion on the part of the Tribunal that there is some necessity for an applicant to the Tribunal to “substantiate” claims.  If that is intended to suggest that there must be some corroboration given by an applicant, it clearly is erroneous.  The word “substantiate” is defined in the Macquarie Dictionary 3^rd Edition as follows “1. to establish by proof or competent evidence:… 2. to give substantial existence to.  3. To present as having substance”.  The ordinary English use might suggest that the Tribunal member did not regard the applicant’s statement as being evidence at all but rather required some other evidence to be provided.  The sense in which it is used may perhaps also suggest that the Tribunal thought that there was a need for corroboration.  If corroboration were necessary there was the country information.  But, be this as it may, there certainly is no necessity as a matter of law that an applicant to the Tribunal corroborate, if that is what the Tribunal meant, a statement made.

17                  I am conscious of the injunction of the High Court not to construe reasons of the Tribunal pedantically.  The Tribunal has a difficult task which it undertakes under difficult circumstances and with inadequate resources in order to perform its obligation to review those decisions which are referred to it.  On the whole, I do not think that the first or third grounds of review are made out, if only because in the last paragraph under the heading “findings and reasons” the Tribunal does refer to there being “meagre evidence available to [it]”.

18                  The second ground of review is, however, more serious.  Although the applicant’s claims were perhaps not expressed in a technical way it is obvious from the passages I have set out that she claimed to be a refugee for two reasons.  The first, which the Tribunal dealt with, related to religious persecution.  The second, however, related to persecution on the ground of political opinion.  A person will be a refugee if that person has, inter alia, a “well-founded fear of being persecuted for reasons of … political opinion”.  An applicant who makes a claim to be a refugee on the basis of persecution for political opinion is entitled to have that claim dealt with.  Failure to deal with a claim may, as the various judgments in the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 (“Yusuf”) found, involve reviewable error.

19                  The leading judgment in that case was that of McHugh, Gummow and Hayne JJ with whose reasons Gleeson CJ agreed although adding his Honour’s own comments. Their Honours refer, in their joint judgment, to jurisdictional error, encompassed by cases such as Craig v South Australia (1995) 184 CLR 163 at 179, as invalidating an administrative decision.  There are some difficulties in some parts of the judgment which arise because the Court is speaking not only of judicial review by this Court under Part 8 of the Act but also by the High Court in proceedings brought under s 75(v) of the Commonwealth Constitution.  It is possible that some of the references to jurisdictional error were intended to refer to the High Court’s constitutional jurisdiction rather than the jurisdiction of this Court.  On the other hand, at paragraph 78, their Honours indicate that in a case where the Tribunal fails to make some relevant finding of fact it does not mean that the Federal Court has no jurisdiction to deal with the matter.  Such a failure may in a particular case constitute an error of law or failure to take into account relevant considerations. 

20                  At para 82 in the context of Part 8 of the Act, their Honours say:

“… ‘jurisdictional’ error can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material.  What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law.  Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute.  In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.  Nothing in the Act suggests that the tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.” (References omitted)

21                  In the next paragraph of the judgment, after noting that not all the limitations in s 476 of the Act relate to all grounds of review set out in s 476(1), their Honours say:

“In particular, it is important to recognise that, if the tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it ‘exceeds its authority or powers’.  If that is so, the person who purported to make the decision ‘did not have jurisdiction’ to make the decision he or she made, and the decision ‘was not authorised’ by the Act.”

22                  It perhaps does not matter which particular ground of review serves to encompass a submission that the Tribunal failed to deal with an applicant’s claim.  Whether the ground is one going to jurisdiction, to error of law or otherwise, the judgment makes clear that this Court has jurisdiction to deal with it and, if the ground is established, to set aside the decision of the Tribunal.

23                  Counsel for the Minister sought bravely to suggest that the Tribunal had dealt with the claim of well-founded fear of persecution for political opinion.  He relied in particular upon the correspondence, not from the Tribunal member, but from the Deputy Registrar dated 8 November 2000, to which reference has already been made as suggesting that the Tribunal considered all matters raised.  It is difficult to see how that correspondence indicates that the Tribunal did in fact consider the claim of political persecution and reject it. 

24                  Counsel referred also to the Tribunal’s comment that there had been “many generalised claims” and that the Tribunal had used the words “inter alia” to refer, so it was said, to the persecution of Christians for political reasons.  With respect to the submission, that reference appears to be a reference back to what the Tribunal said under the heading “claims and evidence”, namely,

“The Applicant made several generalised statements about the persecution of Christians; the inability of Christians to obtain freedom and spiritual peace in the practice of their religion or to obtain the protection of the authorities; the uncertainty of the future; and rising unemployment, frustration and violence amongst the Indonesian population.”

25                  The fact that the Tribunal made no reference at all at any point in its reasons to the claim for political persecution establishes, in my view, that the Tribunal was not referring to that matter when it used the words “inter alia”.

26                  Even if a person does not attend at an appointment to give oral evidence and make submissions in support of his or her claims when the Tribunal indicates that it is unlikely to reach a favourable decision on the papers, that does not mean that the Tribunal can ignore a case which the papers seek to make out.  The Tribunal must deal with the case and failure to do so will involve, as the judgment in Yusuf indicates, a ground of review under Part 8 of the Act.

27                  It is for these reasons that I would set aside the decision of the Tribunal and remit the matter to a Tribunal differently constituted to review the decision of the delegate of the Minister in accordance with law.

28                  The Minister must pay the applicant’s costs.

Associate:

Dated:              3 August 2001