FEDERAL COURT OF AUSTRALIA

Applicant VFAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1532

MIGRATION – judicial review – appeal from Federal Magistrates Court – claimed fear of persecution based on Convention ground – whether Refugee Review Tribunal considered claim – whether claim clearly articulated

SDAV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 43, applied

Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 197 ALR 389, considered

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184, considered

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

V482 of 2003

MARSHALL J

MELBOURNE

19 DECEMBER 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

THE COURT ORDERS THAT:

1.      The appeal be allowed.

2.      The order of the Federal Magistrates Court of 10 June 2003 be set aside.

3.      The decision of the Refugee Review Tribunal (“the Tribunal”) dated 13 June 2002 be set aside.

4.      The matter be remitted to the Tribunal for reconsideration of the appellant’s application for review of the decision of the respondent’s delegate according to law.

5.      The respondent pay the appellant’s costs of the appeal and of the application before the Federal Magistrates Court.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of a Federal Magistrate given on 10 June 2003.  The learned Federal Magistrate dismissed the appellant’s application for review made pursuant to s 39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) affirming a decision of a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (“the Minister”) to refuse the appellant a protection visa.

2                     Pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), the Chief Justice determined on 4 August 2003 that this appeal should be heard by a single judge of the Federal Court.

3                     The issue for determination in the appeal is whether the learned Federal Magistrate was correct in rejecting the submission of the appellant that the Tribunal had failed to deal with a claim made before it by the appellant.

4                     The appellant contended that she had a well-founded fear of persecution if returned to Indonesia on account of her membership of a particular social group.  Her well-founded fear of persecution was said to stem from the persecution she said her husband has suffered in Indonesia and, by reason of her association with him, she would face a real chance of suffering the same persecution.

5                     The appellant submitted that the Tribunal failed to deal with her claim that her husband was exposed to excessive or arbitrary punishment while undergoing a six year prison sentence.  The Minister contended that the Tribunal considered all of the appellant’s claims.  In the alternative it was submitted that the appellant’s claims about her husband’s treatment in prison were inextricably linked with other claims which the Tribunal dealt with unquestionably.  In the further alternative it was contended that the claim about the husband’s treatment in prison was not clearly articulated.

factual background

6                     The appellant was born on 12 April 1942 and is a citizen of Indonesia.  Her husband, also a citizen of Indonesia, was a Minister in the Suharto Cabinet just prior to the time when President Suharto stood down from office in May 1998.  The appellant’s husband was detained in custody in Indonesia on 28 March 2000 and was convicted of criminal offences. He is currently serving a term of imprisonment in Indonesia.  He was originally sentenced by the Central Jakarta District Court to two years’ imprisonment and a fine was imposed.  On appeal, the Jakarta High Court increased the appellant’s husband’s sentence to six years’ imprisonment.  After the High Court decision, the appellant’s husband was imprisoned in a low security prison in Jakarta.  Some time later the appellant’s husband was transferred to a prison island in Central Jakarta, which is said to be notorious and holding mainly convicted murderers, robbers and drug offenders. 

7                     The appellant’s three children hold student visas and reside in Australia.  The appellant arrived legally in Australia to visit her children on 27 August 1998 and applied for a protection visa on 27 August 1999.  In her application, the appellant claimed to have a well-founded fear of persecution on three grounds.  The first is social isolation as an indigenous Indonesian married to a wealthy Chinese man who has converted to Islam.  The second is as a member of a particular social group, as a wealthy person associated with the former Suharto government.  She feared that her house may be burned down as happened to a person in a similar position in May 1998.  In further submissions to the delegate of the Minister, the appellant claimed to be a member of a social group characterised as either (i) the family of the appellant’s husband; or (ii) cronies/associates of the Suharto regime.  The third ground on which the appellant claimed that she fears persecution is on the ground of her political opinion (both actual and imputed).  She fears prosecution and she stated that several times between February and August 1998 she was visited by government officials who threatened her with imprisonment.

8                     In a letter dated 30 March 2001, the appellant’s migration agent (and solicitor) informed the delegate that the appellant’s husband had been transferred to the prison island referred to above.  The letter included the following comments:

“We wish to bring to your attention a further new development in this case, in that our client’s husband has been transferred from a lower security prison, to a notorious prison island in Central Java.  The prison island holds some 150 inmates who are mainly convicted murderers, robbers and drug offenders.  We enclose a newspaper article confirming this.”

9                     On 11 June 2001, a delegate of the Minister decided to refuse the appellant a protection visa.  In the reasons for decision, the delegate stated:

“Having considered the totality of the [appellant’s] claims, including relevant international commentary on the Refugees Convention, I find that the harm or mistreatment claimed by the [appellant] is not of sufficient gravity to constitute persecution.  Because I have found that the harm or mistreatment claimed by the [appellant] is not of sufficient gravity to constitute persecution, I have not found it necessary to assess whether these claims are well-founded.”

10                  On 16 July 2001 the appellant applied to the Tribunal for review of the decision of the delegate of the Minister.  The appellant’s solicitors filed submissions on 3 September 2001.  The submissions reiterated that the appellant principally claimed to have a well-founded fear of persecution by reason of her membership of a particular social group, which could be characterised as either (i) the family of the appellant’s husband; or (ii) cronies/associates of the Suharto regime.  The appellant attended a hearing at the Tribunal on 8 February 2002 and gave evidence before the hearing.  After the hearing the appellant was given the opportunity to file further submissions relating to the trial and conviction of her husband and further country information for the Republic of Indonesia.  Those submissions were filed on or about 14 March 2002.

11                  At paragraphs 11 to 13 of the September 2001 submissions, the following was said:

“11.     The [appellant’s] claims are not put on the basis that her husband faces a real chance of being persecuted for political acts he has committed.  They are put on the basis that he faces a real chance of being disproportionately punished on political grounds and exposed to excessive or arbitrary punishment while undergoing a 6 year sentence for crimes which he was subject as a scapegoat for the excesses of the Suharto regime.  He was prosecuted as a pretext for punishing him, and has been singled out from a group of wealthy non-family associates of former president Suharto rather than simply being prosecuted and liable to face punishment in conformity with the general law of Indonesia.  This amounts to discriminatory persecution.

12.       The [appellant] herself has a well-founded fear by reason of her association and affiliation with [her husband] that she will be persecuted in the same manner as her husband and/or be subjected to extra-judicial mistreatment to a degree which is persecutory.

13.       There is evidence that the transfer of the [appellant’s] husband to a maximum security prison without notice, where he has since been detained, was politically motivated and a result of direct political pressure.  In addition it would seem that it was contrary to regulations and was not as a result of any custody concerns of the Corrections authorities.  There are also serious concerns that the decision was unlawful as not being made by the right court since at that time [the appellant’s husband] had not been convicted and proceedings were still continuing in the High Court and no final decision was in force (28/03/01) the sentence having been under appeal at the time.  It is submitted that this action by the State authorities lend cogent support to the argument that excessive punishment of a selective and discriminatory kind amounting to persecution was imposed on [the appellant’s husband] taking his situation out of the category of simply being an application of a law of general application, especially as this was ordered while he was still in ‘detention’.  This was done, it is submitted, because of his membership of a particular social group being ‘cronies’ of Suharto.  By extension this provides a sound basis for the Contention that the [appellant] has good cause to fear similar treatment by reason of her family affiliation were she to return to Indonesia.”  [References omitted; original emphasis.]

the decision of the tribunal

12                  On 13 June 2002, the Tribunal made a decision to affirm the decision of the delegate not to grant the appellant a protection visa.  The Tribunal held that for the appellant to fear persecution for a Convention reason due to her relationship with her husband, her husband must have experienced persecution for a Convention reason.  The Tribunal found that his prosecution and imprisonment was not persecution for a Convention reason:

13                  The Tribunal found that the appellant’s husband’s and the appellant’s status as former close associates of former President Suharto did not found a fear of persecution for a Convention reason.  The Tribunal further found that the evidence in relation to the current political situation in Indonesia did not indicate that opponents of the current government faced persecution. 

14                  The Tribunal concluded that the appellant was not a person to whom Australia owed protection obligations under the Refugees Convention and therefore affirmed the decision of the delegate to refuse the appellant a protection visa.

15                  Under the heading “the applicant’s claims” at pages 8-9 of the Tribunal’s reasons for decision, the Tribunal noted that:

“A letter of 30 March 2001 enclosed a newspaper article which reported that, after the tripling of the prison term which followed an appeal against the initial sentence, [the appellant’s husband] had been transferred to a notorious prison.  It is submitted that the transfer is politically motivated.”

16                  At page 9 of its reasons the Tribunal referred to the appellant’s September 2001 submissions and noted that it was there submitted:

“… that aspects of [the appellant’s husband’s] detention were unlawful, particularly his transfer to the harsh prison.”

17                  At page 9 of the Tribunal’s reasons, it recorded that the appellant said at the hearing that:

“…she would be treated unfairly once in custody; and that … this would happen in large part because she would be thought to know about her husband’s financial dealings to a degree which she does not.” [Emphasis added.]

18                  At pages 10-11 the Tribunal referred to the applicant’s 14 March 2002 submissions which included a claim that the appellant’s husband:

“… has been poorly treated in prison … [and] has been singled out because of his membership of a particular social group.”

19                  The Tribunal found that the appellant’s husband was a member of a particular social group of former close associates of former President Suharto.  However, it found that his membership of that group was not:

“… the essential and significant reason for his prosecution and imprisonment.”

20                  The Tribunal found that if the appellant was investigated and charged on return to Indonesia, there would not be a real chance that she would be harmed “in the course of the investigation”.  It found that membership of a particular social group would not be a reason for any prosecution “which may be initiated against her.”  It further considered that any unfairness in legal proceedings which might be brought against her would not be unfair for a Convention reason.

21                  The Tribunal concluded by stating that the appellant’s relationship to her husband would not lead her to face persecution in a Convention sense, when her husband has not experienced such persecution.

review to the federal magistrates Court

22                  On 31 July 2002 the appellant applied to the Court pursuant to s 39B of the Judiciary Act in relation to the decision of the Tribunal.  On 16 September 2002, the matter was transferred to the Federal Magistrates Court.

23                  The application for review contained two grounds of review, which may be summarised as follows.  First, that the decision of the Tribunal was affected by jurisdictional error in that a) it failed to consider the appellant’s claims of “fresh harassment, threats and intimidation against members of her family”; and b) it misinterpreted and/or misunderstood the test of well-founded fear of persecution and/or the application of the real chance test.  Second, or in the alternative, it was contended that the Tribunal erred in asking itself the wrong question, identifying the wrong issues or ignoring relevant material in its consideration of the appellant’s claim to fear persecution on the grounds of actual or imputed political opinion, race or membership of a particular social group.

24                  Before the Federal Magistrate, the grounds citing the appellant’s claims of harassment, threats and intimidation against members of her family were abandoned by the appellant.

25                  The appellant submitted before the Federal Magistrate that the Tribunal had misunderstood the test of persecution for a Convention reason and had thus misunderstood the nature of the opinion it was required to form.  Further, the appellant argued that the Tribunal had failed to consider an issue central to the appellant’s claim, essentially whether the appellant was a member of a particular social group in order to determine whether the appellant would suffer persecution by reason of her membership of that social group.  Third, the appellant submitted that the finding that the essential and significant reason for the appellant’s husband’s prosecution and imprisonment was not his membership of a particular social group was flawed.  Finally, the appellant submitted that the Tribunal failed to appreciate that the possibility of unfairness in any trial to which the appellant might be subjected could be persecutory of her and affect her for a Convention reason.

26                  The Federal Magistrate heard the application for review on 9 April 2003 and delivered reasons for her decision on 6 June 2003. The Federal Magistrate found that the Tribunal “clearly considered whether the [appellant] was a member of a particular social group” and whether her being liable to prosecution as a result of her membership of that group could amount to persecution for a Convention reason.

27                  The Federal Magistrate noted that the Tribunal found as a matter of fact that the treatment of the appellant’s husband was the result of the operation of law enforcement and was independent of his membership of any particular social group.  The Federal Magistrate held that there was no error in the Tribunal’s decision.

28                  The Federal Magistrate (at [15]) acknowledged that the appellant put her claims:

“… on the basis that [her husband] faces a real chance of being disproportionately punished on political grounds and exposed to excessive or arbitrary punishment whilst undergoing a six-year sentence for crimes, which it was submitted, were the result of a selective prosecution to which he was subjected as a scapegoat for the excesses of the Suharto regime.”

29                  At [26] the Federal Magistrate acknowledged that “in submissions and oral testimony” the appellant claimed before the Tribunal that her husband’s “transfer to a notorious prison was politically motivated.”

30                  The Federal Magistrate observed at [29] to [34] that the Tribunal found:

·                    that the charging and sentencing of the appellant’s husband were not for a Convention reason;

·                    that any charges the appellant may face would not be for a Convention reason;

·                    advice from the Department of Foreign Affairs and Trade in November 2000 did not assist the appellant’s case;

·                    any proceedings against the appellant would not be unfair because of a Convention reason;

·                    any intervention by the government in judicial proceedings against the appellant would be as a result of a desire to deter corrupt activities.

31                  At [39] the Federal Magistrate said:

“The Tribunal is required to consider the elements of each of the claims made by the [appellant] and has done so in lengthy reasons.”

32                  At [43] the Federal Magistrate recorded a submission made by the appellant that:

“… the Tribunal did not address the issue of the conditions under which the [appellant’s] husband was held and in failing to do so did not appreciate that these could be persecutorily imposed for Convention reasons.”

33                  At [49] the Federal Magistrate said that:

“As findings of fact and being matters for it to determine, the Tribunal found no selective enforcement and no excessive punishment.”

34                  The Federal Magistrate did not illustrate how the Tribunal had found no excessive punishment in the context of the appellant’s husband’s transfer to and treatment in a notorious prison.  Whilst the Court agrees that the Tribunal’s reasons for decision are lengthy, it does not agree that those reasons consider the elements of all claims made by the appellant.  It considered all but one, as is illustrated below.

consideration

35                  A clearly identifiable and articulated claim was made to the Tribunal by the appellant that she had a well-founded fear of persecution on account of her membership of a particular social group because her husband was exposed to excessive or arbitrary punishment whilst undergoing his prison sentence on a particularly notorious prison island to which he was transferred because of his membership of the same particular social group.

36                  The Tribunal did not deal with that claim.  It dealt with other claims made by the appellant which were referable to the charging, detention, trial and sentence of the appellant’s husband but not with the claims referred to in the preceding paragraph.

37                  I reject the contention of counsel for the Minister made in her written contentions and confirmed orally, that “the treatment in prison cannot be separated from the arrest, detention, prosecution and trial as without these, there would be no possibility for imposition of a punishment.”  As counsel conceded, a person may be arrested, detained, prosecuted and tried without reference to any Convention based reason, but whilst in prison may experience persecution for a Convention based reason.  That possibility was simply not explored by the Tribunal in this case although a claim was made for it to explore, as is evidenced from the matters referred to at [15]-[18] above.

38                  I reject the alternative submission of the Minister that the issue of the appellant’s husband’s treatment in prison was not an integer of the review application but merely an aspect of the evidence.  It was a separate, discrete claim that required consideration.  The failure of the Tribunal to consider the claim meant that:

“… the Tribunal misunderstood the nature of the claims being advanced [in their totality] and consequently failed to consider [an] essential [aspect] of the claims actually made.”

See SDAV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 129 at [44], (2003) 199 ALR 43 at 54.

39                  A failure of the Tribunal to decide a matter put to it will result in the Tribunal making a jurisdictional error: see Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 26, at [27] – [34] per Gummow and Callinan JJ; (2003) 197 ALR 389, at 394 – 396.  It is not necessary for the Tribunal to refer to every piece of evidence before it in its written reasons. However, if the Tribunal failed to consider a contention which, if accepted, would justify a conclusion that the applicant has a well-founded fear of persecution for a Convention reason, and if that contention is supported by probative material, the Tribunal will have failed to discharge the duty imposed by s 414 of the Migration Act to review the decision of the delegate of the Minister: see Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at [45]-[46]. This is precisely what occurred in this matter for the reasons set out above at [35] to [37].

40                  The second alternative submission of the Minister that the claim was not clearly articulated is also rejected.  As indicated at [35] above, I consider the appellant’s claim, which the Tribunal did not address, to have been clearly articulated.  In short, the claim was that the appellant’s husband faced adverse treatment in prison because of a Convention based reason and was transferred to the particular prison where such adverse treatment would occur because of a Convention based reason.  Accordingly, the appellant was entitled to contend that if that claim was accepted, she similarly might face adverse treatment in prison if charged, prosecuted, tried and convicted, if returned to Indonesia, and similarly might expect to be sent to the notorious prison island.

41                  For the above reasons, I consider that the appellant’s appeal should be allowed, the decision of the tribunal set aside and her application for review of the delegate’s decision be remitted to the Tribunal.  The appellant is entitled to costs of the appeal and of the application to the Federal Magistrates Court.

Associate:

Dated:              19 December 2003