FEDERAL COURT OF AUSTRALIA

S14/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1153

PRACTICE & PROCEDURE – typographical error in reasons of Tribunal – whether inference can be drawn as to conclusions of Tribunal – where no corrigendum issued – where Tribunal member not called to give evidence.

MIGRATION – failure to consider substance of claims – Tribunal did not address applicant’s membership of social groups – whether Tribunal had dealt with all “essential integers” of the applicant’s claims.

WORDS & PHRASES – ‘plausible’

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 referred to

Long v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 218 referred to

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to

Re Australian Insurance Employees Union; Ex parte Academy Insurance Pty Ltd (1988) 78 ALR 466 discussed

Vietnam Veteran’s Association of Australia New South Wales Branch Inc v Specialist Medical Review Council (2002) 69 ALD 553 referred to

Secretary of the Department of Family & Community Services v Sammut (1999) 58 ALD 691 discussed

Muin v Refugee Review Tribunal & Ors (2002) 190 ALR 601 discussed

SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 548 referred to SGBB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 364 referred to

Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396 discussed

El Merhabi v Minister for Immigration & Multicultural Affairs (2000) 96 FCR 375 referred to

Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 referred to

Thevendram v Minister for Immigration & Multicultural Affairs (2000) 182 ALR referred to

W148/00A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR referred to

W321/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 210 referred to

Syan v Refugee Review Tribunal (1995) 61 FCR 284 referred to

Aras v Minister for Immigration & Ethnic Affairs (1998) 50 ALD 797 referred to

Al-Amidi v Minister for Immigration & Multicultural Affairs (2000) 177 ALR 506 referred to

Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 referred to

X v Minister for Immigration & Multicultural Affairs (2002) 116 FCR 319 referred to

Cabal v Minister for Immigration & Multicultural Affairs [2001] FCA 546 referred to

S14/2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 364 of 2003

MOORE J

22 OCTOBER 2003

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

Introduction

1                     This is an application for constitutional writs of certiorari and mandamus and a declaratory order concerning a decision of the Refugee Review Tribunal (“the Tribunal”) of 24 August 2001. The Tribunal affirmed a decision of a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (“the Minister”) to refuse to grant the applicant a Protection (Class XA) Visa under the Migration Act 1958 (Cth) (“the Act”). The matter was remitted to the Federal Court from the High Court pursuant to subs 44(1) of the Judiciary Act 1903 (Cth) by an order made by Gaudron J on 6 February 2003.

2                     The applicant arrived in Australia on 7 January 2001 on a business visa. On 5 February 2001, he lodged an application for the protection visa. On 26 February 2001 a delegate of the Minister refused to grant the visa. On 23 March 2001, the applicant applied for a review of that decision by the Tribunal.

3                     The criterion for the grant of such a visa is, subject to subd AL of Div 3 of the Act, that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees of 28 July 1951 as amended by the Protocol Relating to the Status of Refugees of 31 January 1967 (“the Convention”).

Background facts

4                     The following are the claims of the applicant drawn from his visa application, the submission that accompanied that application (written by a migration agent acting for the applicant) and his oral evidence before the Tribunal. In his application, the applicant stated that he was born on 27 December 1967 in Jakarta, Indonesia, although the accompanying submission said he was born in the village of Lingkok, Kecamatan Mutiara in Aceh, Indonesia. The submission also stated that in Aceh he was known by a different name to the one stated on the application. At the Tribunal hearing, the applicant submitted that the name he was known by in Aceh (“the Aceh name”) was his true identity, and the name he had used throughout the application process was an alias (“the Jakarta name”). An Indonesian identity card was produced at the hearing, listing the applicant’s Aceh name, the date of birth as 5 November 1967, and the birthplace as Pidie, Aceh. The applicant’s Indonesian passport is in his Jakarta name.

5                     The applicant went to Jakarta to study at Universita Muhammadiyah and in 1996 gained a Bachelor of Engineering degree. The applicant was enrolled in university under his Aceh name. He lived in Jakarta from 1986 to 1998 (although some documentation suggests he arrived in 1991), working as a self-employed taxi driver from 1995 until 1998 when he left to live in Aceh, which at that time was safe. He lived there until 2000. He is married and his wife lives in Indonesia. He has one child who was born after the applicant arrived in Australia. He has no living parents. He has four brothers, three of whom live in Indonesia and one whose location he does not know.

6                     The applicant claimed that in 1999 the Indonesian military (Tentara Nasional Indonesia (“TNI”)) invaded Aceh to look for Free Aceh Movement (“GAM”) activists. The TNI killed, raped and seized the belongings of the Acehnese people. As a result, Acehnese people from Tangse in Pidie sought refuge in Kecamatan Mutiara. In 1999, he and other young people from Kecamatan Mutiara formed a humanitarian organisation to help these people (“the organisation”) and he was appointed fundraiser of the organisation. He made several trips to Jakarta from Aceh to raise funds. At the hearing the applicant explained that although he was not a member of GAM, many others in the organisation were, and he was present at some local GAM meetings. In 1999 two of his friends, also members of the organisation were kidnapped by BRIMOB (special forces of the Indonesian Police/anti-riot police, Police Mobile Brigade (Brigade Mobil, Brimob)). In August 1999 his brother went to Medan with a friend, carrying letters given to him by the applicant asking for financial support for the refugees. His brother was arrested in Medan and never returned.

7                     In February and April of 2000, the TNI “visited” the applicant’s wife looking for him and on those occasions his wife had told them he was seldom there. Again, in August 2000, the TNI came searching for him. On this occasion they hit his wife and threatened to kill her if they could not find the applicant in one month’s time. The applicant decided to flee Aceh. He spoke to the people at the organisation who advised him to hide in the mountains with GAM, but he went to Jakarta where he moved from one place to another. He did not feel safe staying in one place. In Jakarta, he went to KONTRAS (the Commission for Disappearances and Victims of Violence). When he was waiting to be interviewed, he explained his circumstances to two people from Ambon and Irian Jaya, who advised him to leave the country. The applicant was not sure whether those two people were actually officers of KONTRAS or if they were people who were waiting to get advice from KONTRAS. Nevertheless, he decided to flee the country. He claimed he would have been arrested if he had returned to Indonesia.

8                     At the hearing before the Tribunal the applicant said that he would not be safe in Jakarta or Aceh. He said he would not feel safe in Jakarta because although when he was in Jakarta he is “not in Aceh”, his brother had been kidnapped in Medan, there had been an explosion at a place where he had been living in Jakarta and he had reason to believe Acehnese people in Jakarta had been taken away. He said he had been told by a friend who had attended a meeting held by an Acehnese leader in Australia that since Megawati Soekarnoputri had come to power many Acehnese in the Pasai Ming Gel area of Jakarta had been taken away.

The Tribunal’s Decision

9                     The Tribunal’s reasons began with a discussion of the relevant legislation and what is comprehended by the definition of “refugee” in Article 1A(2) of the Convention. The Tribunal then discussed the applicant’s claims in a section of its reasons entitled “Claims and Evidence”. In this section the Tribunal recorded the sources of the material before it, including the applicant’s application for the protection visa and the submission that accompanied it. It set out an extract of a background political history of Aceh provided by the US Committee for Refugees. It then listed five documents before it at the hearing, none of which had been translated into English. These were:

a)                  an internet media download about an explosion that had occurred at 4:30pm on 10 May 2001 in a boarding house in South Jakarta which housed Acehnese students. The applicant said he lived in that house in 1998, and he had stayed in that same house for a few days in 2000 when he had returned to Jakarta.

b)                  a newspaper article regarding the same event.

c)                  an Indonesian Identification (“ID”) card under the applicant’s Aceh name. The details on his ID card indicted he was born in Pidie on 5 November 1967. The ID card was issued in Guntur, South Jakarta on 5 November 2000 and valid till 5 November 2003. (The applicant claimed he had been compelled to use an alias for the purpose of getting a passport because he feared he would not have been able to leave the country had he used his own name.)

d)                  a set of university documents under the applicant’s Aceh name.

e)                  a letter in Indonesian from “Sarifuddin”, who the applicant claimed was his brother, advising him, amongst other things, not to come back because he was wanted by the TNI.

10                  The rest of this section of the Tribunal’s reasons took a particular form. It constituted a record, in indirect speech, of questions the Tribunal had asked, comments it had made to the applicant at the hearing and a record of the answers and explanations of the applicant (as understood by the Tribunal). In some instances, the Tribunal summarised the response of the applicant without recording the question. However, by and large, this section would read as a conversation or interrogation if put into direct speech.

11                  Many of the questions of the Tribunal, as recorded, were directed to the content of the five documents, leading to questions on other matters. The issues touched on (as recorded), included the May 2001 bombing, the time the applicant had spent in Jakarta, the two different names the applicant is known by, the information in his application for a protection visa and the submission that accompanied it, his University documents and the contents of the letter from his brother.

12                  The Tribunal then recorded raising with the applicant a number of specific concerns it had regarding aspects of his evidence. First, it raised reservations about the timing of, and rationale for, the applicant leaving Aceh given the circumstances the applicant claimed to have existed. The Tribunal recorded its attempts to ascertain how, when and the exact circumstances under which the applicant left Aceh and subsequently, Jakarta, and the rationale for him having done so. Secondly the Tribunal recorded that it gave the applicant an opportunity to explain why he was too afraid to use his Aceh name for a passport but had subsequently had his ID card reissued in that name. Thirdly the Tribunal recorded its efforts to clarify why the applicant went to Aceh in 1998 and the circumstances in which he did. This led to its fourth line of inquiry, regarding the organisation in Aceh. The applicant was recorded as having gone on to explain the kidnapping of a friend, the disappearance of his brother, advice given to him by the people in the village to go to and hide in the Mountains with GAM and his move to Jakarta where he went to see KONTRAS. His evidence, as recorded, was that after speaking to two people in the waiting area he left the KONTRAS office and made plans to leave. The Tribunal then recorded that when asked if the two people were officers of KONTRAS the applicant had answered that he could not be sure but felt they may have been.

13                  The Tribunal then recorded having put two propositions to the applicant. The first was “that the new President of Indonesia, Megawati Sukarnoputri was known to be a moderate” referring to a Reuters article which reported her as having signed a decree granting Aceh autonomy. The second was that on the applicant’s own account he had been able to leave Aceh, remain in South Jakarta for five months and apply for a continuation of his ID in his own name, all “without suffering any adverse consequences of his time in Aceh”. The Tribunal then said:

I said that there now appeared to be a conciliatory arrangement by the government with Aceh such that if [the applicant] returned an [sic] lived in Jakarta, and had no involvement with the militant sections of the Free Aceh Movement it appeared tome that he could remain in Jakarta as he had done until 1998 without adverse consequences.

14                  The substance of the applicant’s responses to these two propositions, as recorded by the Tribunal, was that the applicant would return to Aceh if he believed the situation was stable there but that no foreign journalists were permitted into Aceh and even under the new President there were still killings. The Tribunal then recorded it saying to the applicant that it was not talking about a return to Aceh, but a return to Jakarta. The applicant is recorded as having reiterated his position in relation to Aceh and in relation to Jakarta, he believed that he was not safe there, adding that his brother had disappeared in Medan.

15                  In the next section of the Tribunal’s reasons entitled, “Findings and Reasons”, certain findings were stated explicitly. Others were not. The section commenced by setting out the gravamen of the applicant’s claims (fear of harm at the hands of the TNI because of their interest in him arising from his involvement with the organisation), and a conclusion that if the claims were “genuine” then “they would amount to a claim to have a well-founded fear of persecution for reasons of political opinion imputed to him by the TNI”. The Tribunal went on to state that he had considered the applicant’s claims “to make findings of fact in regard to his nationality, his ethnic background and his level of involvement in Aceh and any chance of persecution that he may face there”. The Tribunal then said it had also considered particular evidence relating to Jakarta “to determine whether or not there is a “real chance” that [the applicant] could face persecution for a Convention reason such that any fears he may hold in that regard are well-founded”. The rest of the section was made up of discussion under the following sub-headings:

• The Applicant’s Nationality, his Ethnic Background and Identity
• The Applicant’s Background
• The Applicant’s Claimed Situation in Aceh
• The Letter from the Applicant’s Brother
• Relocation.

16                  Under the first sub-heading, the Tribunal found that the applicant was an Indonesian citizen of Acehnese ethnicity who had used two names. Under the second sub-heading, as a concluding statement, the Tribunal found that during the applicant’s time in Jakarta (the period discussed under that heading was 1986 to 1998), the applicant was of no concern or adverse interest to the Indonesian authorities.

17                  Under the third sub-heading “The Applicant’s Claimed Situation in Aceh” there were statements about the plausibility of particular claims, though the analysis also included a consideration of the applicant’s time in Jakarta. The Tribunal accepted that it was “plausible” that two workers were “kidnapped” by an arm of the Indonesian military and never returned and that one of the applicant’s brothers was arrested in Medan in Sumatra when he was going there to solicit donations for the refugees. However, in relation to the applicant’s wife, the Tribunal said “I find it implausible that she would choose to remain in Aceh knowing that this threat [to kill her] could be carried out, if in fact it was made.” It also said it found it “implausible that [the applicant] would have escaped from the area by driving a truck. Since the area, by [the applicant’s] account, had become of security concern.” The Tribunal said it found the applicant’s explanation that he would be in trouble if the authorities found him with a false ID implausible when the comparative claimed risk of discovering his actual identity was taken into consideration. The Tribunal concluded the discussion in this section by stating that:

These aspects of his claims lead me to conclude that the Applicant was not of interest to the authorities as he has claimed and his motivation for leaving Indonesia is other than what he has claimed.

18                  Under the fourth sub-heading “The Letter from the Applicant’s Brother” the Tribunal found that the letter was self-serving. In any event, it concerned Aceh. The Tribunal said “I find that the Applicant could relocate without fear of persecution to Jakarta even if he was of interest in Aceh”.

19                  Under the fifth sub-heading “Relocation” the Tribunal said “As discussed above the Applicant was of no adverse interest in Jakarta at the time he left there, and his motivation for leaving was one of a better job prospect.” The Tribunal went on to consider the May 2001 bombing. It said:

The Applicant provided media articles of a boarding house where an explosion had occurred in May 2001. Although he claimed that he had lived in that house prior to 1998 and spent a couple of days there in 2000 I find this does not indicate that he is a risk since the articles were unable to determine whether the incident occurred as s [sic] consequence of someone in the house attempting to make an explosive device or from other causes. This single incident does serve to indicate that Acehnese people are targeted in Jakarta.

A discussed above I find that the Applicant felt no urgency to leave Jakarta since he had the means to do so from mid October 2000. Also, as discussed, I find this was because there was no basis for any fear of serious harm amounting to persecution.

…

I find that the policy of the central government under the presidency of Megawati Soekarnoputri is one of conciliation with Aceh and there are human rights groups in Jakarta the Applicant could rely on this policy and the protection available to him there to continue to live there without facing a “real chance” of persecution even if he was of interest to the authorities in his area of Aceh. [sic]

[Emphasis added]

20                  The Tribunal went on to state that the applicant did not hold a fear of persecution in Jakarta and that it was reasonable to expect that the applicant could return to Jakarta, and remain there away from any harm he may fear in Aceh. Apparently for this reason, the Tribunal found “that any fear amounting to persecution is not well-founded”.

21                  Under the heading “Conclusion” the Tribunal said that it was not satisfied that the applicant was a person to whom Australia had protection obligations under the Convention and that therefore the applicant did not satisfy the criterion for a protection visa, set out in subs 36(2) of the Act.

Issues raised in the application

22                  In an amended application filed on 18 July 2003, the applicant raised numerous grounds. The gravamen of the applicant’s complaint was that the Tribunal failed to consider the substance of his claims having regard to the definition of “refugee” in the Convention and constructively failed to exercise its jurisdiction. The grounds for review in the application broadly raised four issues, though these were formulated in a variety of ways.

23                  The first issue was whether the Tribunal addressed all bases on which the applicant might have had a well-founded fear of persecution. It considered only imputed political opinion (the reason referred to in the Tribunal’s reasons under the heading “Findings and Reasons”). It was contended that the Tribunal had failed address the applicant’s membership of particular social groups. The groups were described in various ways. They were people of Acehnese ethnicity, a group or class of people of Acehnese ethnicity in Jakarta, a village group that provided humanitarian services to Acehnese who had been displaced by violence, and a social group constituted by his family, or circle of immediate friends.

24                  The second issue was whether the Tribunal had dealt with all “essential integers” of the applicant’s claims and whether it had complied with s 414 of the Act. It was contended the Tribunal had failed to make findings on material questions of fact: see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 349 which constituted an error of law or a failure to take into account relevant considerations.

25                  The third issue was whether the reasons for the decision of the Tribunal revealed an irrational, illogical or perverse process of reasoning.

26                  The fourth issue involved two matters said to concern procedural fairness. The first related to a claim that the Tribunal denied the applicant procedural fairness by failing to provide to the applicant, before making its determination, the Reuters article referred to earlier and affording the applicant an opportunity to comment and adduce evidence in relation to its contents. The second related to the consideration of documents by the Tribunal which were not in English without it having obtained translations.

Consideration

27                  The passage of the Tribunal’s reasons quoted at [19] above is pivotal to some issues raised by the applicant. There is a real possibility that the word “not” has accidentally been omitted from the final sentence in the first paragraph. Counsel for the applicant contended it had not been, counsel for the Minister contended to the contrary. No corrigendum has apparently been issued. It is necessary to determine whether Tribunal concluded that Acehnese people were targeted in Jakarta or concluded that they were not. I approach the matter on the basis that the content of the Tribunal’s reasons is a question of fact: see Long v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 218 at [32] and that it would be open to me to infer, as a matter of fact, that the Tribunal had omitted a word in its published reasons, having regard to the reasons as a whole and the context in which they were given. The question is whether such an inference should be drawn.

28                  It is well settled that the reasons for decision of bodies such as the Tribunal must be read as a whole and that it would be erroneous to comb through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law: see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 and particularly Kirby J at 291. However, the anterior question in this matter is whether the Tribunal meant to say that it was satisfied that the incident (the bombing of the boarding house) indicated Acehnese people were targeted in Jakarta, or was it of the opposite view and these conclusions were inaccurately recorded.

29                  There is authority supporting an approach that a decision maker can be taken to mean what he or she has said in any published reasons for decision: see Re Australian Insurance Employees Union; Ex parte Academy Insurance Pty Ltd (1988) 78 ALR 466. In that matter, the issue was whether the President of the Australian Conciliation and Arbitration Commission had applied the correct statutory test in dealing with a matter. The language used in the published reasons for the decision suggested that he had not. Dawson Jsaid at 467 that “[t]he reasons given by the President are those which I must accept and do accept as being his reasons”. That is to say, in appropriate cases the lawfulness of a decision should be determined by reference to the language actually used: see Vietnam Veteran’s Association of Australia New South Wales Branch Inc v Specialist Medical Review Council (2002) 69 ALD 553 at 569-570.

30                  This is consistent with Branson J’s approach in Secretary of the Department of Family & Community Services v Sammut (1999) 58 ALD 691. In that matter there was also a real possibility that words had accidentally been omitted from written reasons of the Administrative Appeals Tribunal. The relevant paragraph of the reasons was crucial to the determination of the appeal. Her Honour found that the paragraph did “not make grammatical or logical sense”. Neither party in that matter suggested that it would be appropriate for her Honour to take any course other than to act on the basis that the relevant paragraph was expressed in the terms intended by the Tribunal. Branson J said at 695 that “[o]n that basis alone, it seems to me, it is necessary for this matter to be remitted to the Tribunal for further consideration”.

31                  One matter that might be viewed as indicating the Tribunal should be taken to have concluded that Acehnese were not targeted in Jakarta was a passage in its reasons, noted earlier, in which it recorded that it had put to the applicant that there was “a conciliatory arrangement” by the government with Aceh which would mean, in the Tribunal’s opinion, the applicant could return to Jakarta and remain there (as he had done until 1998) without adverse consequences. However during the hearing, as recorded in the transcript, the applicant responded to this suggestion by noting his brother had been kidnapped in Medan and the bombing had occurred where he had been living in Jakarta. Accordingly, it cannot be assumed that the Tribunal, by recording in its reasons a view it held during the hearing, was repeating it as a view it held at the time it made its decision.

32                  However the Tribunal did note in the opening section under the heading “Findings and Reasons” that it had considered the lengthy period of time the applicant spent in Jakarta, his return to Jakarta in August 2000, his actions and the lack of interest in him there in the five months prior to his departure from the country to determine whether or not he could face persecution. The way these matters were referred to suggest that the Tribunal thought they militated against a finding the applicant could face harm constituting persecution, at least if he lived in Jakarta. A similar indication of the Tribunal’s thinking (that the applicant would not be exposed to harm by living in Jakarta) was found in a passage under the subheading “the Applicant’s Background”, when the Tribunal spoke of the applicant’s time in Jakarta as relatively privileged and being a period in which he was of no concern or adverse interest to the authorities.

33                  Under the subheading “Relocation” the Tribunal referred to its earlier discussion about the applicant being of no adverse interest in Jakarta at the time he left there. This is fairly clearly a reference to at least what is discussed in the preceding paragraph. Accordingly, the Tribunal was making an observation at a point in its reasons shortly before the paragraph in which the “not” may have been omitted, consistent with its view being that the applicant was not at risk of harm in Jakarta. In addition, in the paragraph in which the “not” may have been omitted, after referring to the bombing, the Tribunal said that “the bombing” did not indicate that he “is a risk” because the articles were unable to determine the reason for the bombing (one reason being that someone was making an explosive device which detonated). What is meant by the phrase “he is a risk” is obscure if that is what the Tribunal meant to say. But it is highly likely that the Tribunal meant to say “at risk” rather than “a risk”. That is because there was no question relevantly raised before the Tribunal of whether the applicant was, himself, “a risk”. The issue raised by the application and being considered by the Tribunal was whether the applicant was “at risk”. Additionally, as a matter of simple grammar and syntax, “at risk” fits appropriately into the sentence and “a risk” does not.

34                  These matters point to two things. First, the inclination of the Tribunal was towards a conclusion that the applicant was not at risk of harm in Jakarta (in the context of the Tribunal apparently having accepted that the applicant was Acehnese). The second is that the decision of the Tribunal had not been proof read, with the result that all transcription or typographical errors were not corrected. Experience would indicate that reasons for decision or judgment of members of administrative tribunals as well as judges, are not always models of perfection when first published. Typing and other errors can be overlooked in the proof reading process. It is commonplace for corrigenda to issue. In my opinion, it is probable that the word “not” was omitted. That conclusion is reinforced by the approach the Tribunal ultimately took to the applicant’s claims, namely that the applicant could live in Jakarta without facing a “real chance” of persecution.

35                  Counsel for the applicant submitted that I should treat the failure of the Tribunal member to give evidence on this issue as justifying an inference that the word “not” has not been omitted accidentally. Tribunal members have the same protection and immunity as a High Court judge: see subs 435(1) of the Act and subs 60(1) of the Administrative Appeals Tribunal Act 1975 (Cth). It cannot be expected that Tribunal members give evidence in adversarial proceedings in this Court: see Muin v Refugee Review Tribunal & Ors (2002) 190 ALR 601. No inference of the type suggested should be drawn.

36                  I turn to consider whether the Tribunal erred in limiting its consideration to the question of whether the applicant was at risk of harm by reason of his political opinion and, in so doing, not addressing (at least expressly) whether he was at risk of harm by reason of his membership of a particular social group. As noted earlier, the group was variously identified in submissions by the applicant’s counsel as people of Acehnese ethnicity in Jakarta, a social group constituted by the applicant’s family, by the applicant’s circle of immediate friends, or by the young people of the applicant’s village who were involved with the organisation.

37                  There are, in my opinion, two answers to this criticism of the Tribunal’s approach. The first is that the clear import of the applicant’s claims was that he was at risk of persecution because of his imputed political opinion. In completing the application form for the protection visa, the applicant did not respond directly to a question (question 39) designed to elicit an explanation as to why he believed he was at risk of harm if he returned to Indonesia. He simply indicated “see submission”. The submission alluded to was a letter dated 2 February 2001 prepared by a migration agent. In the letter two matters were referred to in sequence. The first was the applicant had been involved in activities as a fundraiser for Acehnese refugees and the second was that the TNI was looking for him because of his activities with that group. The submission concluded by saying, in effect, that the applicant was at risk of harm at the hands of the TNI if he returned to Indonesia. Put this way, the applicant (through his migration agent) could reasonably be taken to have been suggesting that his activities as a fundraiser were viewed by the Indonesian authorities as a political activity that was not tolerated and might be dealt with by the infliction of harm. Understood this way, it was open to the Tribunal to deal with the application as advanced by the applicant, which it did: see SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 548.

38                  I accept, however, that the express terms on which an applicant frames his or her case does not, in appropriate cases, necessarily confine the matters the Tribunal should consider: see SGBB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 364. Accordingly I will assume, for present purposes, that the Tribunal should have considered whether the applicant was at risk of harm by reason of his membership of one of the various social groups now identified by counsel for the applicant. On this assumption, the second answer to the criticism of the Tribunal’s approach is that it did effectively deal with the applicant’s claims. The applicant’s contention was that he was at risk of harm both in Aceh and Jakarta because of his earlier activities in association with his friends and his family. Even if his claims raised for consideration risk of harm because of membership of a social group, the ultimate question for the Tribunal was whether there was such a risk warranting a conclusion that the applicant had a well founded fear of persecution. The Tribunal found, in substance, that the applicant was not at risk of harm in Jakarta for any reason relating to or arising from his activities and circumstances in the years preceding his departure for Australia (I will later deal with the way the Tribunal dealt with risk of harm in Aceh). For my part, I would view that conclusion as necessarily comprehending any risk arising not only from the applicant’s activities viewed as an expression of his political opinion but also his activities viewed as a manifestation of membership of any of the social groups identified by his counsel in these proceedings.

39                  I turn now to consider the submission that the Tribunal failed to consider all the “essential integers” of the applicant’s claims. Counsel for the applicant identified in his written submissions thirteen matters that were said to be the “essential integers” of the applicant’s claims. With one exception, each was either an event or a series of events which the applicant had said occurred while he was in Indonesia (or shortly after he left). The exception was that Acehnese people were targeted in Jakarta. They were:

(a) The Applicant went back to Aceh in 1998;

(b) In March 1999, the Indonesian military invaded to look for Free Aceh Movement activists, and the TNI killed a lot of Acehnese, seized their belongings and raped people;

(c) At the end of March 1999, the Acehenese people in a number of areas sought refuge in Kecematan Mutiara;

(d) On 1 April 1999, the Applicant and other young people from Kecematan Mutiara formed an organisation to help refugees;

(e) The Applicant was appointed as a fundraiser and made several trips to Jakarta and Aceh to raise funds;

(f) On 10 August 1999, two of the Applicant’s friends M Asyem and Hasanuddin, were kidnapped by the BRIMOB (Part of ABRI) and never came back;

(g) On 23 August 1999, the Applicant’s brother Sabrin Ahmad and a friend, Tengku Ismail, went to Medan (carrying a letter from the applicant asking for financial support for refugees);

(h) The TNI arrested four people (including the Applicant’s brother Sabrin Ahmad, and his friend, Tengku Ismail) and they had never returned;

(i) The Applicant’s wife was visited by four TNI personnel in February 2000, and 4 April 2000, looking for the Applicant;

(j) On 8 August 2000, the TNI again visited the Applicant’s wife and threatened the Applicant’s wife that if they could not find the Applicant in one month, they would kill her;

(k) By 23 February 2001, the Applicant’s home in Aceh had been torched by the “Si Pai”, which refers to the Indonesian authorities and/or security forces, and the “Si Pia” wanted the Applicant;

(l) A bomb had exploded at the boarding house where the Applicant had resided in 1998 and for a few days in 2000;

(m)             Acehnese people are targeted in Jakarta.

40                  Counsel for the Minister put in issue whether these matters were, for relevant purposes, “essential integers”. The notion of an “essential integer” appears to have its origins in the judgment of Allsop J in Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396 and is a notion repeated in Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244. It is a notion that has been referred to or adopted as a method of analysis by at least two Full Courts since: see SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80 and SDAE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 111. However the notion must be viewed as what it is, namely a method of analysis which can be helpful in certain circumstances. Debate about whether something is or is not an “essential integer” can distract attention from the underlying question of whether the Tribunal has considered the entirety of an applicant’s claims (at least to the extent that they are based on matters of historical fact which the Tribunal has accepted occurred or not rejected as having not occurred) within the legal framework created by the Convention (to the extent that it is reflected in the Act).

41                  I should observe that the applicant, notwithstanding his counsel’s submission to the contrary, made no claim of having been persecuted (in the sense of having been threatened with or suffered harm) before he left Indonesia. One possible exception would be his claim that in August 2000 the TNI hit his wife and threatened to kill her if he could not be located within a month. There is authority that harm done to the spouse of an applicant, even when the applicant was not in the same country, can be relevant to a determination of whether the applicant husband was persecuted: El Merhabi v Minister for Immigration & Multicultural Affairs (2000) 96 FCR 375 at 380-383. In this matter, the Tribunal expressly rejected this aspect of the applicant’s account. It took the view that she would have left Aceh had this threat been made even if she was then pregnant. As the finder of fact, it was entitled to take this view.

42                  Many of the other matters identified by counsel for the applicant as “essential integers” were addressed by the Tribunal in one way or another. Insofar as the Tribunal said some of them were events which were “plausible”, I take that to be an acceptance that those events may well have occurred and were to be treated as having occurred when considering the applicant’s claims. While the use of the word “implausible” has been the subject of attention both in this Court and High Court: see Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423; Thevendram v Minister for Immigration & Multicultural Affairs (2000) 182 ALR 290 at 297-298 and 300; W148/00A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703 per Tamberlin and R D Nicholson JJ at 717 and Lee J at 707; W321/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 210 at [30]; W64/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 970 at [21] and [31]), there has not been the same consideration of the use of the word “plausible”. However in the context in which it has been used in the present matter, it probably signifies acceptance by the Tribunal of the account as credible and worthy of consideration as if the events had happened. Those matters (as well as the applicant’s claim that his wife had twice been visited by TNI in February and April 2000 which I accept was not the subject of an express finding by the Tribunal) were part of the applicant’s account advanced to establish that he was of interest to the Indonesian authorities. The Tribunal ultimately found that the applicant was not of interest to the Indonesian authorities.

43                  The way the Tribunal dealt with this material is not entirely satisfactory. Much of it was discussed in a section of the Tribunal’s reasons under the subheading “The Applicant’s Claimed Situation in Aceh”. One might reasonably assume, having regard to the subheading, that this section was addressing whether the applicant was at risk of harm were he to return to Aceh, or at least addressing what he claimed had happened to him there and the circumstances in Aceh in which it had happened. However, this section of the Tribunal’s reasons also dealt with the applicant’s claim that his brother had disappeared in Medan, an event which did not occur in Aceh. The Tribunal noted, correctly, that Medan was in Sumatra (and, I interpolate, is near Aceh) but did not discuss or explain why the accepted disappearance of the brother outside Aceh was relevant to whether the applicant was at risk of harm were he to return to Aceh. In addition, the applicant’s discussion of the incident in Jakarta at the office of KONTRAS does not appear to have any real bearing on whether the applicant was at risk of harm in Aceh (though it must be accepted that it is clear the Tribunal did not believe that this incident occurred) nor was it an event that occurred there. Similar comments can be made about other matters discussed under this subheading (that is, they appear not to concern the question of whether the applicant was at risk of harm were he to return to Aceh or events that occurred there).

44                  Probably, and notwithstanding the subheading, this section was directed to the question of whether the applicant was of interest to Indonesian authorities both in Aceh as well as Jakarta. So much is apparent from the Tribunal saying, in effect, under the subheading “Relocation” (in, as noted earlier, a section following shortly after the section with the subheading “The Applicant’s Claimed Situation in Aceh”), that it had already discussed the question of whether the applicant was of “adverse interest” in Jakarta.

45                  Ultimately, however, the Tribunal concluded that the applicant was not at risk of harm in Jakarta. The fact that the applicant had lived there before 1998 was probably of limited or no relevance (other than on the issue of whether relocation was reasonable). That is because, on the applicant’s account, it was his activities in early 1999 and following which resulted in him being of interest to the authorities. The applicant pointed to two matters specifically concerning Jakarta which indicated he was of interest or might be at risk of harm. The first was the incident at the offices of KONTRAS and the second was the bombing of the house in May 2001. As to the first, the Tribunal did not accept the incident occurred. As to the second, for reasons already discussed, the bombing in May 2001 was not viewed by the Tribunal as indicating that Acehnese, of which the applicant was one, were being specifically targeted.

46                  In addition, the applicant had pointed to the disappearance of his brother in Medan as another basis for his fear of persecution in Jakarta. It must be said that the way the Tribunal dealt with this aspect of the applicant’s claims is both obscure and not particularly compelling. It was not dealt with expressly in the section headed “Findings and Reasons” beyond the Tribunal making what appears to be a finding that this aspect of the applicant’s account was “plausible”. There is no analysis in this section of whether the disappearance of his brother outside Aceh (when engaged in soliciting donations for the refugees) was relevant to the question of whether the applicant, who had engaged in the same activities, might also disappear (or otherwise be harmed) outside Aceh, that is, in Jakarta. It is possible that the Tribunal thought it was of some significance that Medan was in Sumatra and near Aceh and Jakarta was not. If so, it did not make that clear.

47                  The Tribunal appears to have relied on three matters as establishing the applicant was not of interest to the authorities or at risk of harm in Jakarta. The first was that the applicant had returned to Jakarta in August 2000 and remained there for a period of almost three months after he had obtained travel documentation which would have enabled him to leave Jakarta. The second was that he had sought and obtained an ID in Jakarta. The third was the policy of the central government of conciliation with Aceh, along with the presence of human rights groups in Jakarta which could provide protection against a background of that policy being in place. It is probable, having regard to the Tribunal’s reasons as a whole, that this last matter was viewed by the Tribunal as answering the applicant’s concerns about his safety in Jakarta arising from his brother’s disappearance elsewhere. Namely, that the human rights groups in Jakarta could provide the applicant with any necessary protection against a background of a government policy of conciliation.

48                  The approach of the Tribunal discussed in the preceding paragraphs concerning the applicant’s fear of harm in Jakarta, was one which, in my opinion, was open to the Tribunal on the material before it and does not reveal jurisdictional error. It dealt with the substance of the applicant’s claims and addressed the questions raised by the Convention. The fact that its approach can be legitimately criticised as not entirely thorough and somewhat piecemeal does not lay the foundation for a conclusion that it fell into jurisdictional error. Moreover there is authority which supports an approach in which the Tribunal does not consider whether an asylum seeker can return to and live at the place from which they came in their country of nationality but simply considers whether there is some other location within that country where the asylum seeker can reasonably be expected to live and where they are not at risk of harm: see Syan v Refugee Review Tribunal (1995) 61 FCR 284, Aras v Minister for Immigration & Ethnic Affairs (1998) 50 ALD 797 and Al-Amidi v Minister for Immigration & Multicultural Affairs (2000) 177 ALR 506. In my opinion, it was open to the Tribunal to conclude that the applicant could relocate to Jakarta where he would not be at risk of harm without addressing, at least expressly, whether he would be at risk of harm were he to return to Aceh. The Tribunal did indicate that it was reasonable for him to relocate (a matter that must be considered: see Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437) and it is relatively clear it did so because the applicant had lived there for a considerable period of time in the past and it considered that he would be able to gain employment there. Having regard to these conclusions, it was open to the Tribunal to reach its ultimate conclusion that the applicant was not a person to whom Australia had protection obligations even though it did not address, in terms, whether the applicant had a well founded fear of persecution were he to return to Aceh.

49                  I finally deal with the contention that the Tribunal failed to afford the applicant procedural fairness first by not securing translations of a newspaper article and the brother’s letter and secondly by not providing the applicant with a copy of the Reuters article and giving him an opportunity to comment on it. Circumstances can arise where the failure of a Tribunal to obtain the translation of a document, or at least where it fails to inform the applicant who has furnished the document that it does not propose to rely it because it was not translated and thus deny the applicant an opportunity to explain its contents, will result in a denial of procedural fairness: see X v Minister for Immigration & Multicultural Affairs (2002) 116 FCR 319. However generally the Tribunal is not obliged to obtain a translation of documents furnished by the applicant in a foreign language at least in circumstances where the Tribunal ascertains the gist of the material if it is significant: see Cabal v Minister for Immigration & Multicultural Affairs [2001] FCA 546. In the present case the Tribunal asked the applicant, through the interpreter, a series of questions both about the newspaper article and the brother’s letter. In so doing it ascertained the gist of each document for the purposes of understanding the way in which the applicant relied on them. Its approach was, in my opinion, unexceptionable.

50                  In relation to the Reuters article, the Tribunal put to the applicant several propositions apparently based on its understanding of the article. That these propositions were put is derived from the transcript which is in evidence in this matter, rather than the Tribunal’s account of what it said, found in its reasons. The propositions had, in substance, three elements. The first was that the President had signed a decree granting Aceh autonomy. The second was that she had said she would be focusing her attention on Aceh. The third was that the President had a very moderate approach. Ultimately, as earlier noted, The Tribunal found that the policy of the central government was one of conciliation with Aceh. The article itself recorded that the President had signed into law, a law giving Aceh a relatively high degree of regional autonomy and that the President viewed it as a realisation of her promise to give Aceh a “present” on the occasion of the Independence Day celebrations. In putting what it did to the applicant, the Tribunal, in my opinion, raised with the applicant what it viewed as the gist of the article and gave the applicant an opportunity to comment. There was no denial of procedural fairness. I should add that it may be accepted that the Tribunal drew conclusions from the article that others might not insofar as the second and third element were concerned. However the fact that a prior promise had been expressed and acted upon could be viewed as the President saying she would be focusing her attention on the Aceh. Similarly the fact that she had signed the law and characterised it as a “present” might be viewed as evidencing a moderate approach.

51                  The applicant has not demonstrated jurisdictional error on the part of the Tribunal. The application should be dismissed with costs.

Associate:

Dated: 22 October 2003