FEDERAL COURT OF AUSTRALIA

VEAJ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 678

MIGRATION – visa – protection visa – Indonesian citizen – Christian and ethnic Chinese – applicant did not attend Tribunal hearing – Tribunal relied on “independent information” – did not provide particulars to applicant – whether denial of procedural fairness or failure to perform Tribunal’s statutory obligations – content of Tribunal’s statutory obligation to provide particulars of any information the Tribunal considers would be the reason, or part of the reason, for affirming decision under review – whether information just about a class of persons of which applicant a member – whether decision based on reasoning other than that relying on “independent information”

WORDS AND PHRASES – “just about a class of persons of which the applicant or other person is a member”

Migration Act 1958 (Cth) s 424A

Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1 (2003) 195 ALR 1, applied

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (2003) 195 ALR 24, applied

Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 (2000) 204 CLR 82, applied

Muin v Refugee Review Tribunal [2002] HCA 30 (2002) 190 ALR 601, applied

Minister for Immigration & Multicultural Affairs v Al Shamry [2001] FCA 919 (2001) 110 FCR 27, discussed

Minister for Immigration & Multicultural & Indigenous Affairs v Awan [2003] FCAFC 140, referred to

Re Minister for Immigration & Multicultural Affairs; Ex parte Lam [2003] HCA 6 (2003) 195 ALR 502, referred to

Kioa v West (1985) 159 CLR 550, cited

Stead v State Government Insurance Commission (1986) 161 CLR 141, applied

APPLICANT VEAJ OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 399 of 2002

GRAY J

4 JULY 2003

MELBOURNE

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the respondent’s costs of the proceeding.

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

REASONS FOR JUDGMENT

The nature of the proceeding

1                     In this proceeding, the applicant seeks to set aside a decision of the Refugee Review Tribunal (“the Tribunal”).  The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”), refusing to grant to the applicant a protection visa, pursuant to the Migration Act 1958 (Cth) (“the Migration Act”). 

2                     The applicant is a citizen of Indonesia.  She arrived in Australia on 11 August 2001.  On 17 August 2001, she lodged an application for a protection visa.  On 4 October 2001, a delegate of the Minister decided to refuse to grant a protection visa.  The applicant applied to the Tribunal for review of that decision. 

3                     On 15 March 2002, a deputy registrar of the Tribunal wrote to the applicant and to a migration agent, who was advising her and was authorised to receive correspondence from the Tribunal on her behalf.  In accordance with s 425 of the Migration Act, the letter informed the applicant that the Tribunal member to whom the case had been assigned had considered all of the material relating to the review application, but was unable to make a decision favourable to the applicant on the basis of that information alone.  Accordingly, the letter invited the applicant to give oral evidence and present argument at a hearing before the Tribunal on 1 May 2002.  It also advised the applicant that, if she did not attend the hearing and the hearing were not postponed, the Tribunal may proceed to make a decision on her case without further notice.  (I note in passing that this advice was inaccurate in relation to the powers of the Tribunal.  Section 426A(1) of the Migration Act permitted the Tribunal to make a decision on the review without taking any further action to allow or enable the applicant to appear before it.  On the view that I express in these reasons for judgment, the Tribunal would continue to be bound by s 424A and would be required to give the applicant notice in accordance with that section, even if the applicant did not attend the hearing.)  The applicant did not respond to this letter within the time provided.  The letter was returned undelivered to the Tribunal.  The letter to the applicant’s migration agent was not so returned.  The applicant did not attend the scheduled hearing.  Neither she nor her adviser contacted the Tribunal to seek a postponement of the hearing. 

4                     After the letter of 15 March 2002, the applicant did not provide any further material to the Tribunal.  The Tribunal took the view that it had discharged its obligation to provide the applicant with an opportunity to give oral evidence and present argument.  It proceeded to determine the review of the delegate’s decision on the material before it.  On 2 May 2002, the Tribunal made a written decision, affirming the decision not to grant a protection visa.  It handed down that decision and its written reasons for decision, also dated 2 May 2002, on 29 May 2002.  It is that decision of the Tribunal that the applicant seeks to set aside in this proceeding.

5                     By s 36 of the Migration Act, there is a class of visas to be known as protection visas.  A criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom the Minister is satisfied that Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.  The term “Refugees Convention” is defined in s 5(1) of the Migration Act to mean the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the term Refugees Protocol is defined to mean the Protocol relating to the Status of Refugees done at New York on 31 January 1967.  It is convenient to refer to these two instruments, taken together, as the “Convention”.  For present purposes, it is sufficient to note that, pursuant to the Convention, Australia has protection obligations to a person who:

“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country”.

The applicant’s claims

6                     The applicant claimed to fear persecution, if she should return to Indonesia, for reasons of race and religion.  She is of Chinese ethnic origin and a Christian.  She claimed that she would be discriminated against and harmed by Muslim Indonesians.

7                     The applicant was born in Jakarta, but lived in Bandung from 1990.  She completed 12 years of education and was then employed from 1993 in her parents’ business.  She claimed that, while she was in junior high school in Jakarta, her best friend, who was also Chinese, was kidnapped by people to whom the Tribunal referred as “indigenous” Indonesians on her way to school, and was killed.  Although there were witnesses to the incident, there was no police investigation, because the victim was Chinese.  This incident made the applicant scared to go anywhere and very depressed and was the cause of the move to Bandung, where the applicant completed her education.  She also claimed that, in Bandung, her “indigenous” Indonesian neighbours fought with her family.  When the applicant and her mother went shopping, young “indigenous” Indonesian boys verbally abused them by reference to their ethnic origin.

The Tribunal’s reasons

8                     In its reasons for decision, the Tribunal referred to a considerable quantity of what it described as “independent information”.  This information came from a variety of sources, including the Department of Foreign Affairs and Trade (“DFAT”), the United States Department of State, international newsagencies, newspapers and journals.  Because of the way in which the applicant’s case was put before me, it is necessary to attempt to summarise the information, set out more fully in the Tribunal’s reasons for decision.  The “independent information” included the following.

·        In the course of generalised violence in early 1998, stemming essentially from discontent linked to the consequences of the economic crisis in Indonesia, the homes and businesses of citizens of Chinese origin were among those burned or looted and people of Chinese origin were victims of crimes against property and against the person. 

·        The past violence against Chinese in Indonesia did not take place as a result of State policy but rather as a result of random rioting and unrest.  There were periods during which the authorities were unable to contain the riots, during which the ethnic Chinese were most vulnerable.  The armed forces and police were deployed to restore order, order was eventually restored and offenders were prosecuted.

·        The disturbances appear to have been brought under control through decisive government action.

·        Relatively few of the outbreaks of communal violence and rioting since the riots of May 1998 have targeted ethnic Chinese.  Where ethnic Chinese were caught up (generally because their property was targeted), strong government responses have also been reported, including arrests of rioters, deployment of police or troops and other measures to protect the community and to end the violence.

·        Members of the armed forces and police officers were deployed to restore order both in incidents involving ethnic Chinese and in incidents not involving ethnic Chinese.  Despite some examples of the State being unable to intervene to protect those under attack, especially when there were outbreaks of violence in remote areas, those targeted during periods of social unrest in 1998 and since have usually been afforded State protection.  A number of offenders have been prosecuted and there are serious endeavours to bring others, including high-ranking officers, to justice for any role they played in encouraging trouble or in direct attacks on ethnic Chinese people.

·        In August 1998 former President Habibie pledged to safeguard the lives and property of the country’s ethnic Chinese and troops were deployed in Jakarta to maintain security. 

·        There have been measures by post-Suharto governments to remove discrimination against ethnic Chinese.  In June 1998, the government abolished a special code used to identify ethnic Chinese on national identity cards carried by Indonesian citizens.  In May 1999, Indonesia lifted the 30 year ban on the use and teaching of the Chinese language and discriminatory citizenship requirements for Indonesians of Chinese origin were removed.

·        In October 1999, Abdurrahman Wahid was elected president.  He was subsequently replaced through constitutional parliamentary means by Megawati Soekarnoputri.  Wahid was described by various commentators as being a moderate and having a demonstrated commitment to racial and religious tolerance.  He repeatedly spoke out publicly on political reform, social equality, human rights and religious and racial tolerance.  He had close links to Christians and Chinese and spoke frequently against racial bigotry towards Chinese people.

·        There is every indication that President Megawati intends to continue in the same policy direction as Wahid’s administration in relation to ethnic Chinese Indonesians and Christians and ethnic Chinese Christians. 

·        Reports concerning recent violence or unrest targeting persons on the basis of their religion or ethnic origin relate to provinces such as Maluku and Central Sulawesi, where Christians and Muslims continue to fight each other, and to claims of discrimination by ethnic Dayaks in Kalimantan and by Papuans in Papua (Irian Jaya).

·        Incidents of violence against Christians in Jakarta, such as attacks on churches, were not sanctioned by the government and are investigated by the police.

9                     Among the material referred to, the Tribunal quoted the following information supplied by DFAT:

“Indonesia has a long history of state sponsored discrimination against ethnic Chinese Indonesians which dates from the colonial period.  Laws regulating the citizenship of ethnic Chinese and preventing them from holding positions in the bureaucracy were in force from independence until the fall of the Soeharto government in 1998.

Government discrimination against ethnic Chinese increased further during the period of the authoritarian Soeharto government which enforced a policy of assimilation.  Under this policy expressions of Chinese culture or religious practices and use of Chinese language including the publication of Chinese script were outlawed.

The disproportionate wealth and power of the ethnic Chinese elites has bred resentment amongst many Indonesians.  During the political unrest during the monetary crisis and in the lead up to the fall of the Soeharto government ethnic Chinese Indonesians became the targets of racially motivated political violence.

Former president Abdurrachman [sic] Wahid abolished some of the laws and regulations which discriminated against ethnic Chinese Indonesians, in particular laws prohibiting the Chinese cultural and religious practices.  Chinese New Year was officially celebrated for the first time in 2000.  President Wahid also announced that the use of special codes on the identity cards of ethnic Chinese would be abolished but the regulations remain in force.  Some other laws remain on the books but are observed in the breach, for example, the laws prohibiting publications in the Chinese language are still in force but in practice Chinese language publications are now widely available, and Chinese language radio and television programs are also broadcast ...

President Megawati Soekarnoputri has not made any specific policy statements about the treatment of ethnic Chinese or ethnic Chinese Christians.  However, she has spoken often of the need to protect minority groups and protect religious freedom.  She is the leader of PDI-P, a secular political party, and has been criticised by her political opponents for having a disproportionately high number of Christians on the executive of her party and in the cabinet.  A number of her closest advisers and ministers are ethnic Chinese Christians and or [sic] Christians of other ethnic groups.  We therefore judge that President Megawati supports policies of multiculturalism and non-discrimination towards ethnic Chinese, ethnic Chinese Christians and Christians.

President Megawati has given no indication that she is likely to change the direction of previous government policy in this area.

Many Indonesians resent the disproportionate wealth and power of the ethnic Chinese elites.  As a result, racial discrimination against ethnic Chinese Indonesians lingers in Indonesian society today.  Importantly, however, it is no longer actively sponsored by the State.”

10                  Because of its brevity, it is convenient to set out in full the reasoning of the Tribunal in relation to the applicant’s claims. 

“28.     The applicant’s experience of violence by indigenous Muslim Indonesians amounts to ‘fighting’ with the neighbours, which in the context of the written submissions I take to mean verbal disputes, and verbal abuse by indigenous Indonesian boys in public.  Even if I accept that one of her friends was kidnapped and killed, there is nothing before me to indicate that this episode was intended to harm the applicant and accordingly, other than inducing a sense of fear, I do not include this incident as part of the harm suffered by the applicant.  I disregard the incident for the additional reason that the applicant moved away from that area with her family and has not apparently returned, which satisfies me that even if it was harm directed at the applicant there is no real chance that it would recur.

29.       I am not satisfied that the harm suffered by the applicant is sufficiently serious as to amount to persecution within the meaning of the Convention, but even if it was I do not accept that the actions of the young indigenous Indonesian boys who verbally abused her, or the fighting with the neighbours, is encouraged by the Indonesian government nor that the government is powerless to protect the applicant from any serious harm which might result from these incidents of minor harassment.  There is nothing in the independent information which I have cited above which would support such a conclusion and the applicant did not seek the protection of the State, such as to report a crime if one had been committed.  In such circumstances there cannot be said to be a failure of State protection where a government has not been given the opportunity to respond to a form of harm in circumstances where protection might reasonably have been forthcoming, which the applicant declined to seek.

30.       As to the claims of the applicant of racism and persecution generally, I am not satisfied on the information before me that there is a real chance of such harm, including communal violence such as occurred in 1998, recurring in the reasonably foreseeable future but in any event I do not accept that the government would fail to provide effective protection to its citizens, including its ethnic Chinese and its Christian citizens, in the event of such unrest, and I rely on the independent information set out above that the government did provide such protection, albeit not a guarantee against harm, in the riots in 1998.  As DFAT comments, the present government, and that which preceded it, supports policies of multiculturalism and non-discrimination towards ethnic Chinese and Christians and there is no evidence to satisfy me that the degree of protection normally to be expected of the government is either lacking or denied, or that State protection is at such a level of ineffectuality as would allow or give rise to a real chance that the applicant would be persecuted.”

11                  On this basis, the Tribunal concluded that the applicant was not a person to whom Australia had protection obligations under the Convention and that she did not satisfy the criterion in s 36 of the Migration Act for a protection visa.

The applicant’s case before the Court

12                  The original application to the Court, filed on 24 June 2002, specified as the grounds relied on error of law constituting a jurisdictional error, and procedural error constituting an absence of natural justice.  It gave no particulars of those grounds.  Pursuant to a direction of the Court, the applicant filed an amended application on 20 September 2002.  That amended application added particulars of the grounds, being that the Tribunal failed to provide to the applicant, or highlight, adverse material in the independent reports it was going to rely on before making its decision.

13                  The proceeding was fixed for hearing on 11 February 2003.  On that date, the applicant filed a further amended application, in a form appropriate to invoke the jurisdiction of the Court under s 39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”).  Particulars of the ground of error of law constituting jurisdictional error were supplied.  In summary, those particulars are:

·        The Tribunal erred in interpreting the term “well-founded fear” in the Convention, as shown by the manner in which it dealt with the applicant’s fear of persecution in the light of the kidnapping and death of her best friend and the question of the availability of State protection and whether the applicant sought it.

·        The Tribunal erred in interpreting the term “persecution” in the Convention, as shown by its disregard of the death of the applicant’s best friend as merely “inducing a sense of fear” in the applicant.

·        The Tribunal based its decision on a finding not open on the evidence, namely that the applicant had not approached the authorities of the State for protection. 

·        The Tribunal failed to take account of relevant material or considerations and thereby failed to consider the substantive issues raised by the material and evidence before it in relation to the kidnapping and death of the applicant’s best friend, the applicant’s fear for her own life and the applicant’s fear of persecution as a Chinese Christian.

·        The Tribunal failed to act in accordance with its obligations under s 424A of the Migration Act in relation to “independent information”. 

·        The Tribunal denied natural justice to the applicant (referring to the particulars of the separate ground of denial of natural justice).

14                  As to the ground of procedural error constituting a denial of natural justice, the application contained the particulars earlier supplied and two additional particulars.  These were that the Tribunal failed to give the applicant any or any proper opportunity to comment on the “independent information” and that it failed to act in accordance with its obligations under s 424A of the Act. 

15                  There was a new ground in the further amended application, namely that of error of law on the face of the record, but the particulars of that ground merely repeated the particulars of the other grounds.

16                  At the hearing on 11 February 2003, counsel for the applicant made submissions directed to the matters raised by the grounds and particulars in the further amended application.  I shall make more detailed reference to these submissions when I come to deal with the issues later in these reasons for judgment. 

17                  The hearing was conducted within a few days of the delivery of judgment by the High Court of Australia in two important cases dealing with the effect of the privative clause in s 474 of the Migration Act.  See Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1 (2003) 195 ALR 1 and Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (2003) 195 ALR 24.  As a result, at the conclusion of the hearing, I made directions that the parties file and serve written submissions on the question of jurisdictional error.  The respondent filed written submissions on 7 March 2003 and the applicant on 24 March 2003.

The Tribunal’s understanding of the Convention

18                  Counsel for the applicants submitted that several passages in the Tribunal’s reasons indicated that the Tribunal had not applied the correct test, because it misunderstood the concepts of well-founded fear and persecution in the Convention.  It was said that, in par 28 of the Tribunal’s reasons, it had required that there be harm directed at the applicant personally, and that the harm amount to more than the inducement of a sense of fear.  The Tribunal was not entitled to exclude the incident as part of the harm suffered by the applicant, nor to disregard it. 

19                  The submission is based on a misunderstanding of the Tribunal’s reasoning.  In fact, the Tribunal was making a finding in favour of the applicant that the kidnapping and killing of her friend induced in her a sense of fear, but acknowledging that otherwise it could not be regarded as an instance of an attempt to harm her.  The Tribunal was recognising that the applicant had been entitled to feel frightened as a result of the incident, but not on the basis that she had been threatened or that there had been any attempt to harm her.  The use of the word “disregard” is perhaps an instance of unfortunate expression on the part of the Tribunal.  In its context, however, it does not lead to the conclusion that the Tribunal misunderstood its task in applying the Convention.  All that the Tribunal was attempting to say was that, because the applicant had moved with her family to Bandung, it was no longer relevant to consider whether she would have been in danger in her former neighbourhood in Jakarta.  Overall, the finding of the Tribunal was that there was no real chance that harm directed at the applicant would recur, even if it had been in the old neighbourhood.  The crucial element was the move.  As the opening words of par 29 show, the Tribunal was addressing itself to the question whether the applicant had suffered harm that could be said to have been sufficiently serious to amount to persecution within the meaning of the Convention.  So far as
the events that have happened some years earlier in Jakarta were concerned, the Tribunal was entitled to find on the evidence before it that the harm, if any, was not sufficiently serious.

The Tribunal’s findings of fact

20                  Counsel for the applicant made submissions critical of some of the Tribunal’s findings of fact.  He said that they were not based on evidence.  There was no evidence that the “fighting” with neighbours, which the applicant alleged had occurred in Bandung, was limited to verbal disputes, as the Tribunal found.  Nor was there evidence that the applicant did not seek the protection of the State. 

21                  The Tribunal’s finding with respect to the meaning of “fighting” was expressed to be based on the context of the applicant’s own written submissions.  The only document in which the applicant had referred to the issue was attached to her original application for a protection visa.  The relevant paragraph was as follows:

“My arrival in Bandung did not help me at all.  I was still very paranoid that I would share the same fate as my best friend.  This was supported by the fact that the people in Bandung are very fanatic as Muslims, and they are jealous of Chinese people because Chinese people are well known to be wealthy.  Even though my family was not extremely wealthy, I still felt the native Indonesians target us and discriminate against us.  This happened through fights among our neighbours and when my mother and I were out shopping, we would be verbally abused by native Indonesian boys.”

22                  In view of the absence of any specific reference to violence, the allegation that native Indonesians “target us and discriminate against us”, and the reference to “fights among our neighbours” in the same sentence as the allegation of verbal abuse, it was appropriate for the Tribunal to conclude that the fighting involved nothing more than verbal disputes.  Similarly, the absence of any information from the applicant that she and her family had sought police or other official protection in relation to the conduct of their neighbours both supported the conclusion that the “fights” did not involve violence and justified the finding that the applicant had not sought the protection of the State.

Dealing with the elements together

23                  Counsel for the applicant submitted that the Tribunal had not dealt with the elements of the applicant’s case in combination.  It had separated the elements of Chinese ethnic origin and Christianity and looked at the chance of persecution of the applicant on either of those bases, but had not looked at the chance of persecution of her as a person who was both Chinese and Christian.

24                  On an examination of the Tribunal’s reasons, this submission is also unsustainable.  In its summary of the “independent information”, the Tribunal had referred to “ethnic Chinese Indonesians and Christians (and ethnic Chinese Christians)”.  In par 27 of its reasons, immediately before the passages I have quoted above, the Tribunal summarised the applicant’s claim as one of being at risk of violence by indigenous Muslim Indonesians “because she is of Chinese ethnicity and Christian.”  It is clear from those passages that the Tribunal understood that it was dealing with the applicant as a person who had both the characteristics of being Chinese and being Christian.  The presence of conjunctions between the two elements in par 30 of the Tribunal’s reasons does not suggest that the Tribunal was dealing with the elements separately.  Rather, it suggests that the Tribunal was dealing with them together.

The Tribunal’s characterisation of the applicant’s claim

25                  Counsel for the applicant submitted that the Tribunal characterised the applicant’s claim incorrectly, and so as to devalue it.  By characterising the claim as one involving “risk of violence” and by characterising the fighting with neighbours as verbal disputes, the Tribunal was failing to deal with the claim as it was put by the applicant, which involved fear of death.  In her initial application, the applicant had expressed a fear that she would be killed by Muslim Indonesians.  In addition, in a letter to the Tribunal, accompanying her application for review of the delegate’s decision, the applicant had said that her life as an ethnic Chinese was in danger in Indonesia.

26                  It is clear that the Tribunal rejected the proposition that there was a real chance that the applicant would suffer violence if she returned to Indonesia.  This was a question of fact, which is for the Tribunal to determine and not for the Court.  The conclusion was open to the Tribunal on the material before it.  It is a concomitant of the Tribunal’s conclusion that there would be no violence that it must have been of the view that the applicant’s life was not in danger.  Death other than by violence was not an issue. 

Denial of natural justice and s 424A

27                  The only substantial issues raised by the applicant were those arising out of the reliance by the Tribunal on the “independent information” without the applicant having had an opportunity to know what that information was, to controvert it, or to make submissions about its effect.  It was submitted that this amounted both to a denial of natural justice of the kind now commonly called procedural fairness and a contravention of s 424A of the Migration Act and, in each case, amounted to jurisdictional error.  There is no doubt that, at the date when the Tribunal exercised its functions, it could not exercise them according to law unless it afforded procedural fairness to the applicant.  See Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 (2000) 204 CLR 82, Muin v Refugee Review Tribunal [2002] HCA 30 (2002) 190 ALR 601 and Plaintiff S157.  The precise content of the obligation to provide procedural fairness will depend, in each case, upon the circumstances of that case.

28                  Section 424A of the Migration Act provides as follows:

“(1)     Subject to subsection (3), the Tribunal must:

            (a)        give to the applicant, in the way that the Tribunal considers
                        appropriate in the circumstances, particulars of any
                        information that the Tribunal considers would be the reason,
                        or a part of the reason, for affirming the decision that is under
                        review; and

            (b)        ensure, as far as is reasonably practicable, that the applicant
                        understands why it is relevant to the review; and

            (c)        invite the applicant to comment on it.

(2)       The information and invitation must be given to the applicant:

            (a)        except where paragraph (b) applies—by one of the methods
                        specified in section 441A; or

            (b)        if the applicant is in immigration detention—by a method
            prescribed for the purposes of giving documents to such a
            person.

(3)       This section does not apply to information:

            (a)        that is not specifically about the applicant or another person
            and is just about a class of persons of which the applicant or
            other person is a member; or

            (b)        that the applicant gave for the purpose of the application; or

            (c)        that is non-disclosable information.”

29                  Section 441A deals with methods of giving documents to persons.  Section 424C(2) provides that, if an applicant is invited under s 424A to comment on information and does not give comments before the time for giving them has passed, the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.

30                  Section 424A presents a number of problems.  In some respects, it appears to afford to an applicant for review by the Tribunal entitlements greater than might result from the application of the ordinary principles of procedural fairness.  It thereby imposes on the Tribunal obligations that the Tribunal might not have had in the absence of s 424A.  In other respects, the rights given by the section are less than might be expected by way of procedural fairness if the ordinary principles are applied.

31                  Section 424A operates only at the point at which the Tribunal has information and has determined that that information would be the reason, or a part of the reason, for affirming the decision under review.  It seems reasonably clear that the word “information” is intended to bear its ordinary meaning.  Section 424A is not restricted in its operation to information obtained by the Tribunal in the exercise of its power under s 424 to “get any information that it considers relevant.”  There is authority to the effect that the section applies to information already supplied by an applicant but not falling within the exception in subs 3(b).  See Minister for Immigration & Multicultural Affairs v Al Shamry [2001] FCA 919 (2001) 110 FCR 27. 

32                  One practical issue as to the meaning of “information”, which requires further discussion in the context of the exception in subs 3(a), is whether information that the Tribunal has gathered is to be regarded as a single commodity, or as a number of different items.  Typically, the Tribunal will make use of information from a variety of sources, much of it stored in the records of the Tribunal itself.  There is an immediate question whether the Tribunal is required to give to an applicant particulars of all the information to which it proposes to refer in its reasons for decision, or whether it is required only to give particulars of those parts of the information answering the description in subs (1)(a) of information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review.  It would be rare for the Tribunal to be able to point to a single specific sentence in a document that, standing on its own, would answer that description.  Usually, the particular sentence will be found in a context.  The question arises whether the Tribunal is obliged to particularise only the sentence, or the context as well.  Given that there might be many sentences in many documents and that the context of each might be lengthy, the burden on the Tribunal might be quite onerous.  It might be the burden of particularising the entire mass of material, or the burden of selecting from it the particular items that the Tribunal actually proposes to use in justifying its affirmation of a delegate’s decision. 

33                  It is noteworthy that the Tribunal is not obliged to supply the information, but only particulars of it.  This means that the Tribunal cannot perform its obligation simply by providing the applicant concerned with a mass of material.  It must reduce that material to particulars.  It must also direct its attention to why the information is relevant to the review, so that it can fulfil the obligation imposed by subs (1)(b) of ensuring that the applicant understands the Tribunal’s view as to relevance.

34                  It is clear from subs (2) that the Tribunal cannot discharge its obligation by giving to an applicant oral particulars of the information in the course of a hearing.  The obligation of the Tribunal to give both the particulars and an indication of the relevance of the information by one of the means specified in s 441A, or by the prescribed means of giving documents to persons in detention, makes it clear that the particulars and the explanation of relevance must be reduced to writing.  Even in the case of relatively simple, and perhaps uncontroversial, items of information, the Tribunal is not given the option of raising them with an applicant in the course of a hearing and giving an oral explanation of its view as to their relevance.  The Tribunal must give written particulars and a written explanation.

35                  The exceptions in subs (3) produce the greatest difficulty.  I am not here concerned with the question of non-disclosable information, a class of information defined in s 5(1) of the Migration Act, which relates to the national interest, the public interest or breach of confidence.  I note that, in Al Shamry, the Full Court held that the word “application” in subs 3(b) is to be construed as meaning the application to the Tribunal for review of the delegate’s decision.  See [17] – [20] per Ryan and Conti JJ and [35] – [36] per Merkel J.

36                  The greatest potential problems arise from the exception in subs 3(a).  The subsection imposes a dual requirement.  The first branch is negative.  Only information that is not specifically about the applicant or another person is excluded.  The second branch is, in a sense, positive.  To be excluded, the information must be just about a class of persons of which the applicant or other person is a member.  In a sense, however, the second branch is also negative.  The word “just” must mean “only”.  The information concerned must not be about anything other than a class of persons of which the applicant or other person is a member. 

37                  It seems to have been supposed generally that the distinction drawn in s 424A(3)(a) is a distinction between information specifically about an applicant or a particular person whose circumstances bear upon that applicant’s case on the one hand, and general “country information” or “independent information” on the other.  It seems to have been supposed that the Tribunal is not obliged to carry out the obligations imposed by s 424A in relation to the latter class of information.  This dichotomy cannot be derived readily from the terms of the section.  The words “just about a class of persons of which the applicant or other person is a member” do not lend themselves readily to that construction.  If the legislative intention was to exclude general information about the country of origin of the relevant applicant, it is difficult to see why plain words to that effect could not have been chosen.  Indeed, if that had been the intention, it is hard to see why the words after “the applicant or another person” were included at all.  Plainly, the legislature intended to exclude a more restricted type of information than general country information from the operation of s 424A. 

38                  No significant assistance in the construction of subs (3)(a) is found in the context.  Nor are extrinsic materials of great assistance.  The explanatory memorandum to the Migration Legislation Amendment Bill (No 1) 1998 (Cth), by which s 424A was introduced into the Migration Act, simply repeats the words of the paragraph, with the addition of a definite article before the words “other person”.  The second reading speeches in both the House of Representatives and the Senate were relevantly in the same terms.  In each, a very brief description of the measure was given in terms of “a requirement that applicants be given access to, and time to comment on, adverse material relevant to them.”  (The preposition following the word “access” is omitted from the Hansard report of the second reading speech in the Senate.)

39                  The application of the purposive test, proposed by the Full Court in Al Shamry, suggested to their Honours that the exception in s 424A(3)(b) should be construed against the Tribunal.  See [39] – [40] per Merkel J.  The application of the same approach to the construction of subs (3)(a) is more likely to cause difficulty.  The crucial issue will undoubtedly be the definition of the “class of persons” for the purposes of a particular case.  Obviously, a person may belong simultaneously to more than one class.  An illustration from the facts of the present case is apposite.  The applicant belongs respectively to the classes of persons that could be described as “Indonesian citizens”, “Indonesian citizens of Chinese ethnic origin”, “Indonesian citizens who are Christian” and “Indonesian citizens of Chinese ethnic origin who are Christians”.  It is easy to see how the addition of even one further element (eg the fact that the applicant is also a woman) could double the potential number of classes.  This is a relatively simple example, compared with some that might possibly arise.  It is unlikely that parliament intended that the “class of persons” contemplated should be as broad as “citizens of Indonesia”.  As I have said, if it intended to exclude all general country information from the scheme of s 424A, the legislature would only have been required to say so expressly, or to omit any reference at all.  Some narrower class, more particularly related to the circumstances of the applicant concerned (or the relevant other person), must have been intended.  The uncertainty of the definition of this class is perhaps the greatest of the problems associated with the application of s 424A. 

40                  That is not the end of the problems.  Subsection (3)(a) gives no specific guidance as to the selection of the person answering the description of “another person” or “other person”.  There is potential for argument about the identity of the person answering the description of “another person” and particularly about the class of persons to whom the “other person” belongs.  It must be taken that the phrase “other person” is a reference back to “another person” earlier in the provision.  If it were not so, the exception would be very broad.  Every class of persons has an “other person” as one of its members.  It cannot have been the legislative intention to exclude by the words it used information relating to any class of persons at all.  There is also the problem of the use of the present tense.  The class of persons must be one of which the applicant or other person “is” a member.  Information about a class of persons to which the relevant applicant once belonged, perhaps when he or she was in her country of origin, might not fall within the exclusion.  Nor is it clear whether the Tribunal is obliged to provide particulars of information about a class of persons which it intends to use as the basis for a finding that a particular person does not belong to that class.  The use by the Tribunal of a wide range of information as a ground for disbelieving an allegation made by an applicant, because of the absence of support for the applicant’s story within the available information, might raise further questions as to the application of s 424A.

41                  In the present case, the first question must be whether the Tribunal considered all, or any, of the “independent information” summarised in its reasons for decision to be the reason, or a part of the reason, for affirming the decision under review.  This is not an easy question.  The Tribunal appears to have succumbed to the fashion that leads routinely to the inclusion in the reasons for each decision of the Tribunal of a section devoted to summarising a broad sweep of information about the country of origin of the applicant concerned, and perhaps about other matters as well.  The inclusion of such information in the reasons for decision in that fashion does not necessarily lead to the conclusion that the Tribunal has formed a view that all of it would be the reason, or a part of the reason, for affirming the decision under review.  In many instances, the information is such as to lead to conclusions favourable to the applicant concerned.  It may be taken that the references to violence against Indonesian citizens of Chinese origin in the present case tended to support the applicant’s case.  Information about violence and unrest in Maluku and Central Sulawesi, in Kalimantan and in West Papua may have been neutral in relation to the applicant’s claims.  It is necessary to look at the Tribunal’s expressed reasons for its decision, in order to decide whether the Tribunal considered any of the information to be the reason, or a part of the reason, for affirming the delegate’s decision. 

42                  In two places, the Tribunal made it clear that it did rely on the “independent information” against the applicant.  The first is found in par 29 of its reasons for decision, in which it used the “independent information” in a negative fashion.  It declined to reach the conclusion that the abuse and neighbourhood fighting claimed by the applicant was encouraged by the Indonesian Government, or that the government was powerless to protect the applicant from any serious harm that might result from those incidents.  In par 30, the Tribunal also relied expressly on the “independent information” to find that the government provided effective protection to its citizens, including its ethnic Chinese and its Christian citizens, in the event of unrest.  It also relied specifically on the DFAT material to support a finding that the governments of Abdurrahman Wahid and Megawati Soekarnoputri supported policies of multiculturalism and non-discrimination towards ethnic Chinese and Christians. 

43                  It is therefore necessary to determine whether the items of information on which the Tribunal relied fell within the exception in s 424A(3).  There was no suggestion that the exceptions in pars (b) and (c) were relevant.  The real issue was whether the information was just about a class of persons of which the applicant is a member.  For reasons I have already stated, the class of persons could not be defined as all Indonesian citizens, without rendering superfluous some of the words of par (a).  That leaves open the possibility of the definition of a class containing one or both of the elements of Chinese origin and Christianity.  For present purposes, the fact that the applicant is female can be disregarded, as none of the information seems to bear specifically upon women.  The question, therefore, is whether the items of information on which the Tribunal actually relied against the applicant were items of information “just” about that class of persons.  If the information went beyond being information about that class of persons, it would appear that the Tribunal was obliged under s 424A to send to the applicant particulars of all of the information falling within the description in subs (1).  It is not intended that the Tribunal should select from among the information that it considers would be the reason, or part of the reason, for affirming the decision those parts that did not relate to the class of persons and send particulars only of them.  Once the relevant item of information is found to contain information that is not just about the relevant class, the whole of the item of information is the subject of subs (1).

44                  The present case raises yet another difficulty in the application of s 424A.  That difficulty is the question whether information about how persons outside the relevant class of persons act in relation to that class is information “just” about the class.  In my view, it is not.  Information about how other persons deal with the relevant class of persons is information about those other persons, as well as about the class of persons.  Accordingly, it is not “just” about the class of persons.  In the present case, much of the information was about the policies of the Indonesian Government towards its citizens of Chinese origin and its Christian citizens, and about the steps taken by Indonesian authorities to prevent harm to Chinese people and Christians.  It goes beyond the characteristics of the class. 

45                  It follows that the Tribunal failed to comply with its obligations pursuant to s 424A.  It did not send to the applicant particulars of the information on which it relied for its specific findings in pars 29 and 30 of its reasons for decision.  It did not give to the applicant any explanation as to why that information was relevant to the review of the delegate’s decision, or any invitation to comment on the information.

46                  The question then arises whether this failure to comply with a statutory obligation amounted to a jurisdictional error.  If s 424A can be regarded as a statutory expression of the content of the rules of procedural fairness in the particular circumstance, as Merkel J (with whom the other two members of the Court expressed agreement) said in Al Shamry at [39] – [40], there is little difficulty.  See also Minister for Immigration & Multicultural & Indigenous Affairs v Awan [2003] FCAFC 140.  Plaintiff S157 is authority for the proposition that a denial of procedural fairness is a jurisdictional error.  The purported decision tainted by such an error cannot be regarded as a decision made “under this Act”, within the definition of “privative clause decision” in s 474(2) of the Migration Act.  The purported decision will not receive the protection of s 474 and will ground an application for relief pursuant to s 75(v) of the Constitution, that being the relief this Court may grant pursuant to s 39B of the Judiciary Act. 

47                  If s 424A is to be viewed separately from concepts of procedural fairness, simply as a statutory pre-requisite to the functioning of the Tribunal, it is necessary to undertake an analysis of its place in the scheme of the Migration Act, before it can be determined that a failure to comply with s 424A amounts to a jurisdictional error.  The mandatory language of s 424A is important.  So is the fact that the information to which it relates is central to the decision-making process of the Tribunal, in that it is “the reason, or a part of the reason” for affirming the decision under review.  The obligation under s 424A, whilst procedural, is considerably more specific than the obligations found in s 420, to provide a mechanism of review that is fair, just, economical, informal and quick, and to act according to substantial justice and the merits of the case.  Section 425 contains a mandatory requirement.  The Tribunal must invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to a decision under review.  That provision and s 424A constitute the two duties of the Tribunal to take action in relation to the conduct of its review.  Both appear in Div 4 of Pt 7 of the Migration Act, which is entitled “Conduct of Review”.  These factors suggest that, if it fails to carry out its obligations under s 424A, the Tribunal cannot be regarded as having performed the function entrusted to it by s 414 of reviewing a decision when a valid application is made to it.  Even though it may make a purported decision, the Tribunal will not have carried out its task.  The purported decision cannot therefore be regarded as a decision made under the Migration Act, for the purposes of the definition of “privative clause decision” in s 474(2).  In other words, the decision will be tainted by jurisdictional error and the Court will have jurisdiction to deal with it.

48                  It must be acknowledged that this approach to s 424A can be productive of technicality.  Not all cases of failure to comply with s 424A will be cases in which an applicant is deserving of the grant of relief compelling the Tribunal to deal with the case all over again.  There will be cases where the failure to comply with s 424A is technical but, as a matter of substance, there has been no disadvantage to an applicant.  An example might be a case in which the Tribunal has put the substance of the information on which it relied to an applicant at the hearing and has provided a sufficient opportunity for the provision of further material, or submissions, as the case may require.  A further example might arise in a situation such as occurred in Re Minister for Immigration & Multicultural Affairs; Ex parte Lam [2003] HCA 6 (2003) 195 ALR 502, in which the relevant applicant’s position could not have been improved even if the Tribunal had performed its obligation.  Such cases are best dealt with by recognising that the relief the Court can grant pursuant to s 39B of the Judiciary Act is discretionary.  The discretion not to grant such relief can be exercised against an undeserving applicant.

49                  It is necessary to return briefly to the question of denial of procedural fairness, aside from s 424A, because each was advanced as a separate reason for invalidating the decision of the Tribunal.  Considerations of procedural fairness required the Tribunal to acquaint the applicant with the fact that it proposed to rely on the “independent information” on which it in fact relied in making the findings expressed in pars 29 and 30 of its reasons for decision.  Such material was not in the category of background information, acquired by the Tribunal in the course of its experience in dealing with like cases, against which the Tribunal could test the applicant’s claims, to see whether it was persuaded that the applicant was a person to whom Australia had protection obligations pursuant to the Convention.  In the words of Brennan J in Kioa v West (1985) 159 CLR 550 at 629, it was “adverse information that is credible, relevant and significant to the decision to be made.”  It was specific and not necessarily information of the kind that the applicant would have expected the Tribunal to have and to rely on.  Compare Muin. 

50                  The complication in the present case is that the Tribunal did invite the applicant to attend a hearing and the applicant failed to do so.  The precise reasons why she failed do not have to be canvassed.  It appeared that, at one point, the applicant had notified the Department of Immigration and Multicultural and Indigenous Affairs of a change of address, but had thereafter supplied documents containing her earlier address.  The Tribunal sent to the earlier address its letter inviting her to the hearing.  Counsel for the applicant conceded, however, that the fact that the Tribunal also sent the letter to the applicant’s migration agent was sufficient compliance with s 425 of the Migration Act and a sufficient invitation to the hearing.  If the applicant had attended the hearing, it may have been the case that the Tribunal could have put to her the information it had about the policies of the Indonesian Government, and its capacity and willingness to provide protection to its citizens of Chinese origin who were Christians.  If the applicant had requested a further opportunity to supply other evidence, or to make submissions in a more considered way, the Tribunal might have granted her such an opportunity.  In the end, however, when it came to write its reasons for decision, the Tribunal knew that it had not in fact acquainted the applicant with the material and given her any opportunity to deal with it.  The Tribunal could then have taken steps to do so, even though it was not obliged to give the applicant a further hearing.  One way of affording procedural fairness to the applicant would have been for the Tribunal to comply with its obligation under s 424A in relation to the information.  In failing to take that step, the Tribunal denied the applicant procedural fairness.

51                  The question then arises whether the denial of procedural fairness affected the Tribunal’s decision, in the sense that it deprived the applicant of the possibility of a successful outcome on the issues concerned.  See Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147.  The applicant did not advance to the Court anything by way of material, or submission, that she could or would have put to the Tribunal that might have changed the view the Tribunal formed about the protection that would be available to her in Indonesia.  In cases of denial of procedural fairness, the Court is not to be called upon to conduct its own trial of fact, even for the purpose of determining whether the Tribunal might have decided otherwise, if it had received further material or submissions.  Lam was an exceptional case, in which the relevant applicant could not point to anything that he would have done if the Tribunal had contacted the persons it told him it would contact.

52                  In the present case, if the applicant had been aware of the substance of the material on which the Tribunal relied, she may have been able to supply further material, from her own experience or from other sources, that would cast the Tribunal’s “independent information” in a different light.  She might have been able to make submissions as to the true effect of the “independent information” or as to the manner in which it translated itself into the situation in which the applicant had lived.  This was not a case in which the applicant could have been expected to put forward more material than she had provided in the first place.  Although the Minister’s delegate had discussed in passing material current at the date when the delegate’s decision was made, relating to the situation of Christians and Chinese people in Indonesia, the only finding of fact made by the delegate, and the basis on which the applicant’s claim was rejected at that stage, was that the harm or mistreatment she feared was not of sufficient gravity to constitute persecution.  The applicant was not put on notice that she needed to go further than she did in relation to the absence of State protection.  The ability of the State to protect her was really an element introduced by the Tribunal. 

53                  This raises what is perhaps the final question.  That is whether the Tribunal’s decision rested upon its findings as to the Indonesian Government’s policies and its capacity and willingness to provide protection for its Chinese Christian citizens.  An examination of the reasoning set out in the paragraphs I have quoted from the Tribunal’s reasons for decision discloses two parallel streams of reasoning.  In par 28, the Tribunal discussed the applicant’s claims about the past.  At the beginning of par 29, the Tribunal expressed its finding as to past events.  Its finding was that the Tribunal was not satisfied that the harm suffered by the applicant was sufficiently serious as to amount to persecution within the meaning of the Convention.  Similarly, at the outset of par 30, the Tribunal dealt with the applicant’s claims of racism and persecution generally.  It found that it was not satisfied that there was a real chance of such harm, including violence such as occurred in 1998, recurring in the reasonably foreseeable future.  In each case, the Tribunal went on to discuss an alternative basis on which it could reach the same conclusion.  In the case of the past events, it did not accept that the conduct complained of was encouraged by the Indonesian Government, nor that the government was powerless to protect the applicant from any serious harm that might result from those incidents.  In the case of the prospective harm, the Tribunal did not accept that the Indonesian Government would fail to provide effective protection.  It also found that the Indonesian Government had adopted policies more favourable to ethnic Chinese and Christians in recent times.  It is plain that the Tribunal’s decision could have been justified without the alternative conclusion in either case.

54                  Earlier in these reasons for judgment, I have rejected the applicant’s challenges to the findings that justified the Tribunal’s conclusion.  It follows that the failure to comply with its obligations under s 424A and the failure to afford procedural fairness did not go to the exercise of jurisdiction by the Tribunal.  Its decision is capable of standing despite those flaws.  In terms of s 424A, the Tribunal was of the view that the “independent information” formed part of the reason for affirming the decision under review.  The balance of the reason, or reasons, for doing so were justifiable apart from the “independent information”. 

Conclusion

55                  The applicant has established that the Tribunal denied her procedural fairness and failed to comply with its obligations pursuant to s 424A of the Migration Act.  Each is a jurisdictional error.  Ordinarily, each would lead to an entitlement to the relief which the Court can grant pursuant to s 39B of the Judiciary Act, subject to the exercise of a discretion to refuse such relief.  Unfortunately for the applicant, the Tribunal’s decision is not affected by those errors, because it is justified by the alternative streams of reasoning, which are not affected by the jurisdictional errors.  The applicant has not made out any of the other grounds on which she challenged the conclusions on which the Tribunal based its decision, and on which its decision can stand independently of the aspects of its reasoning flawed by jurisdictional error.  No question arises of the exercise of the discretion to refuse relief of the kinds available under s 39B of the Judiciary Act.  If it were necessary to exercise the discretion, I should have exercised it against the grant of relief, principally on the ground that the Tribunal’s decision is justified by its reasoning apart from its reliance on the “independent information”.

56                  The application must be dismissed.  In accordance with the usual rule that costs follow the event, the applicant should be ordered to pay the Minister’s costs of the proceeding.

Associate:

Dated:              4 July 2003