FEDERAL COURT OF AUSTRALIA

SZDTM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 188

MIGRATION - reasonable apprehension of bias – administrative proceedings – in relatively brief hearing the Tribunal cut the applicant off when she tried to give more information –whether the decision-maker’s comments might lead to apprehended bias – no apprehended bias

MIGRATION – Tribunal finding that action is taken against the Chinese community because of because of their economic position or perceived wealth did not attract Convention protection – jurisdictional error – persecution because of a characteristic of or attributed to a racial group is persecution for a Convention reason

MIGRATION – whether the Tribunal properly considered each of the appellant’s claims - failure to consider accepted claims personal to the appellant in the context of the Convention and of the Act – failure to consider the effect of the totality of the personal claims and claims based on actions against her racial group on a well-founded fear of persecution – appeal allowed – matter remitted to Tribunal

MIGRATION – whether discrimination experienced by the appellant for reason of religion is persecution within s 91R of the Act – appellant has not demonstrated that claimed experiences involved systematic conduct

Migration Act 1958 (Cth)ss 36(2), 91R

Ebner v Official in Bankruptcy (2000) 205 CLR 337

Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR

Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507

Re Minister for Immigration and Multicultural Affairs and Another; Ex Parte Epeabaka (2001) 206 CLR 128

Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425

VSAI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1602

SZDTM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD1069 OF 2005

BENNETT J

9 MARCH 2006

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.      The appeal be allowed.

2.      The orders made by the Federal Magistrates Court on 9 June 2005 be set aside, and in lieu thereof, the Court orders that:

a.       A writ of Certiorari issue quashing the decision of the second respondent made on 1 July 2003 and handed down on 25 July 2003.

b.      A writ of Prohibition issue directed to the first respondent prohibiting her from acting upon or giving effect to or proceeding upon the decision of the second respondent on 1 July 2003 and handed down on 25 July 2003;

c.       A writ of Mandamus issue requiring the second respondent to determine the appellant’s application for a protection visa according to law.

2                     The appellant left Indonesia in 1982 and has resided in Australia since that time.  She lodged an application for a protection visa on 13 February 2001, which was rejected by a delegate of the first respondent (‘the delegate’s decision’).  That rejection was affirmed by the second respondent (‘the Tribunal’).  An appeal from that decision was dismissed by the Federal Magistrate; SZDTM v Minister for Immigration & Indigenous & Multicultural Affairs [2005] FMCA 728.

3                     The issues that fall for consideration in this appeal are:

(a)        Did the Tribunal demonstrate apprehended bias?

(b)        Did the Tribunal err in concluding that persecution because of a characteristic of a racial group (economic wealth or the perception thereof with respect to ethnic Chinese in Indonesia) does not attract the protection of the Convention?

(c)        Did the Tribunal consider each of the appellant’s claims?

4                     There were a number of other matters raised by counsel for the appellant.  For the reasons given below, they do not fall for determination.  The allegation of a breach of s 425 of the Act, which was made before the Federal Magistrate, is not pressed in this appeal.

Did the Tribunal demonstrate apprehended bias?

5                     The appellant seeks to establish that there was an appearance of bias.  Mr Karp, who appears for the appellant, submits that this should be inferred from the brevity of the hearing and from the following questions at the Tribunal hearing:

‘Q26.   …I think I have enough information from what you’ve told me to be able to make a decision on your application but before we conclude the hearing is there anything else that you’d like to tell me that you haven’t already relating to your claims?

A.        Yes. I’m sorry, I have to tell you my story rather than answering your question. Is it okay with you, sir?

Q27.    No.  The purpose of the hearing today is not for you to tell me again what you have already told the department and the Tribunal.  The purpose of the hearing – because I’ve read the documents very carefully.  The purpose of the hearing is for you to answer my questions…

A.        I am sorry sir.

Q27     ---about the concerns that I have, so what I’m suggesting is that in addition to the points that you’ve already covered, is there anything else that you’d like to tell me that you haven’t with respect to your claims?

A.                 No sir.’

To this I would add:

‘Q28.   Thank you.  Mr Mitchell, do you have any submission to make or, sorry, Ms Rider?’

The presence of the advisers

6                     The appellant was represented at the Tribunal hearing by advisers familiar with her case two migration agents from the consultancy Hitchcock & Associates (‘the advisers’) and credibility was not in issue.  The appellant was proficient in English and did not require an interpreter.

7                     Ms Rider and Mr Mitchell were the advisers.  Ms Rider responded to Q28.  That response went to the substance of the case being presented and nothing was said about the procedure before the Tribunal or bias.  The Federal Magistrate at [16]–[17] described the relationship between the advisers and the appellant and the knowledge that they had of the appellant’s case.  He concluded that the advisers would have been aware of the importance of putting to the Tribunal further information to support the appellant’s case.  As his Honour noted, they neither interrupted the Tribunal member nor conveyed in any way a need to advance additional information to the Tribunal.  They were invited to make additional comments and the response was to raise the issue of the influence of newspaper articles on the appellant’s apprehension of fear.  No action was taken after the hearing and prior to the handing down of the Tribunal decision.

8                     Mr Karp claims that the Federal Magistrate held that the fact that the appellant was legally represented at the hearing itself precluded a finding that bias on the part of the Tribunal could have been reasonably apprehended.  The Federal Magistrate did point to the presence of the advisers, although not to legal representation.  His Honour’s observations were in the context of an allegation before him of overbearing behaviour on the part of the Tribunal.  That is not the way the case is presented now.

9                     It was not improper that the Federal Magistrate took into account the fact that the appellant was represented by the advisers who were totally conversant with her case or the fact that neither of those persons interrupted the Tribunal member or expressed any concern at the manner in which the hearing was conducted.

The context of the Tribunal hearing

10                  The hearing before the Tribunal should be viewed in context.  Taking the questioning by the Tribunal as a whole, in the context of the inquisitorial nature of the hearing, his Honour held that there had been no breach of the procedural fairness requirements of s 425 of the Act.  After a combined consideration of procedural fairness and apprehended bias, his Honour did not find that there had been apprehended bias on the part of the Tribunal.

11                  Prior to the hearing, a number of steps had, relevantly, been taken:

• The visa application was accompanied by a short submission from the appellant’s advisers.
• A more extensive submission was received which included a statutory declaration of the appellant, extensive independent information about Indonesia and submissions concerning the criteria for a protection visa, as applied to the appellant.
• A delegate of the Minister refused the visa application with detailed reasons.  That decision also noted that the delegate had presented the appellant with country information about her claims and issues raised and that a further written submission had been received in reply from the appellant’s advisers.
• The application to the Tribunal specifically provided a copy of the delegate’s decision.
• A written submission was received by the Tribunal from the advisers which dealt in detail with the criteria for a protection visa, as applied to the appellant and provided further country information
• A further short submission was received by the Tribunal from the advisers.

12                  It is fair to say that the advisers submitted to the Tribunal a large volume of material concerning the situation of Chinese and Christians in Indonesia and the history of anti-Chinese violence, especially riots in 1998.

13                  The Tribunal decision records that the hearing was held on 20 June 2003 although it was apparently held on 28 June.  As recorded by the Tribunal and evident from the transcript of the proceedings, the appellant was ‘asked to provide examples of how her parents were persecuted’ and ‘how she was persecuted at school’ and did so.  She was asked to comment on independent evidence ‘that indicated that the chance that she would suffer persecution now’ (at the time of the Tribunal hearing) was remote and she did so.

The test for apprehended bias

14                  The test for apprehended bias is an objective one: whether the fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide; Ebner v Official in Bankruptcy (2000) 205 CLR 337 per Gleeson CJ, McHugh, Gummow and Hayne JJ at [6].  In Re Minister for Immigration and Multicultural Affairs and Another; Ex Parte Epeabaka (2001) 206 CLR 128Kirby J gave the following guidance as to the nature of ‘reasonable apprehension of bias’ at [90];

‘…it must be remembered that the test for disqualification in a case such as the present is not merely a sense of unease or a feeling that conventions of discretion and prudence have been breached.  Something more is required.  Although the law interposes the imputed consideration of a fair minded observer and speculates on whether that person “might” (rather than “would”) entertain a reasonable apprehension of bias in the particular case[83], the serious consequences that necessarily attend the affirmative conclusion oblige that it should be “firmly established”.’

15                  The operation of this test, as part of the content of the requirements for procedural fairness, may vary according to the particular circumstances of the case.  A decision-maker is not required absolutely to lack preconceived views.  He or she does not have to come to the matter entirely neutral: Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at [179], [187].

16                  In Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 Gleeson CJ, Gaudron and Gummow JJ at [27]-[31] discussed apprehended bias in relation to administrative proceedings.  There is a “significant difference” between curial proceedings and administrative proceedings.  While administrative proceedings are not held in public, that does not affect the test being one of objective possibility by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias.  It is relevant that the proceedings are inquisitorial in nature, not adversarial.  Whether or not the party is represented is a relevant consideration as is whether credibility is in issue.

Conclusion

17                  The appellant submits that, in “cutting off” the appellant when she tried to give more information in response to the request from the Tribunal, the appellant was entitled to think that the Tribunal had irreversibly made up its mind prior to the end of the hearing.

18                  The Tribunal, in the questions cited by the appellant, was asking her for any additional information.  She moved to repeat ‘her story’.  She had already answered the Tribunal’s questions asking for examples of the persecution experienced by her parents, the discrimination and harassment claimed for reason of religion, her ability to attend church and her persecution because of religion and race.  She had been asked to comment on independent evidence that she could access state protection and that the government does not condone attacks against Chinese or Christians and on independent evidence that the situation has been improving since 1998.

19                  It was in that context that the Tribunal asked in Q26 whether the appellant had anything to add.  When she said that she wanted to tell ‘her story’, it was a reasonable conclusion by the Tribunal that she wished to repeat matters relevant to herself and to her parents that she had already raised in the written documents and in response to previous questions.

20                  The Tribunal accepted the appellant’s “story” insofar as it concerned her and her parents’ experiences and the fact that the Chinese were discriminated against at that time.  The Tribunal accepted her claims of discrimination before she left Indonesia in 1982.  The decision of the Tribunal turned essentially upon the factual issue of the current political situation in Indonesia.  The material advanced by the appellant and her advisers was largely confined to the period from 1998 to 1999.

21                  In my view, the transcript does not indicate that the Tribunal member had a closed mind or that he had prejudged the issues in the case.  The Tribunal’s decision turned on matters other than acceptance of the appellant’s personal claims as told in her “story”.  The appellant had no direct experience with the current political situation in Indonesia.

22                  The mere fact that the decision-maker said, at the end of a relatively brief hearing, that he thinks he has enough information to be able to make a decision, does not lead to a conclusion that a fair-minded person might reasonably apprehend that the decision-maker might not deal with the matter impartially or fail to listen to and take into account, in a genuine way, any further material provided.  The ground of apprehended bias is not made out.

The Tribunal decision

23                  The appellant’s claims were said by the Tribunal to be based on persecution due to race or religion.  She also said that she is in a “particular minority social group” of a Christian, Chinese, middle-aged woman.  Her evidence, however, was not directed to the age or gender aspects of this social group.  The Tribunal’s consideration was of race and religion.  The appellant does not raise, as a ground of appeal, the failure on the part of the Tribunal to consider age or gender.

24                  The Tribunal first dealt with the claims of discrimination on the grounds of race.  The Tribunal accepted those claims as recorded in the decision which related to discrimination in the appellant’s admission to University, harm suffered while at school and harm to her parents (‘the personal claims’).  The harm to her parents involved the fact that Muslim parents (her mother was a teacher) could threaten her with death if their children’s marks were not good enough and involved unspecified threats to her father.  None of the claimed harm suffered, which was accepted, related to general violence against ethnic Chinese.

25                  The Tribunal also:

• determined that the appellant’s experiences on her way to Church, which it accepted, were unpleasant but did not amount to persecution within s 91R of the Act;
• accepted the appellant’s claims of discrimination on the basis of race;
• noted that the appellant did provide independent evidence of violence against the Chinese in Indonesia;
• considered independent evidence about violence to and attacks upon ethnic Chinese;
• held that, while there may be a racial element to criminal offences perpetrated against the ethnic Chinese, the offences were due to economic factors that did not attract Convention protection;
• considered changes that had taken place in government policy on racial discrimination and attacks against Christians and ethnic Chinese since the appellant left Indonesia.  It noted that since the beginning of 1999 there have been virtually no reports of anti-Chinese violence in Indonesia.
• considered that there was only a remote chance that the appellant would suffer physical harm or have her property illegally seized or damaged if she returned to Indonesia;
• considered that the government of Indonesia would provide the appellant with the same level of protection as that afforded any other Indonesian citizen.

26                  The personal claims and the evidence recorded in the Tribunal decision in relation to those claims were not linked to violent attacks or anti-Chinese riots.

27                  The Tribunal devoted much of its decision to information about anti-Chinese riots and attacks on the Chinese in Indonesia and made the observation:

‘There are different theories as to why the ethnic Chinese community is so often the focus of such riots.  Jealousy of the economic success of the Chinese community is the most obvious explanation but the riots typically target small businesses rather than interests associated with the handful of extremely wealthy ethnic Chinese entrepreneurs.’

28                  The Tribunal also cited evidence that supported the view that ethnic Chinese communities ‘are simply convenient scapegoats for much deeper problems in Indonesian society’.

29                  The Tribunal then added:

‘But while there might be a racial element to criminal offences perpetrated against the ethnic Chinese, including the applicant, it was owing to their general economic position and the perception of their wealth that they were targeted.  However, this motivation does not attract the protection of the Convention, but was for a reason that was criminal in nature.’

30                  Thus, the Tribunal conceded that there may be a racial element involved but did not explain why it had concluded that offences perpetrated for this reason did not attract the protection of the Convention.  It did not deal further with the observation set out in [26] above.

31                  Despite the conclusion that these offences did not attract the Convention, the Tribunal considered the nature of attacks on ethnic Chinese as at the date of the hearing and, in particular, since 1999 and concluded that attacks were ‘random and sporadic in nature’.  It concluded that ‘the information available to the Tribunal suggested that the situation for the ethnic Chinese minority in Indonesia is changing and that the forms of official discrimination to which [the appellant] referred at the hearing before the Tribunal are being removed’.

32                  The Tribunal considered, on the basis of Department of Foreign Affairs and Trade advice, that there was not more than a 5% chance that ethnic Chinese Indonesians would be physically attacked or would have their property illegally seized or damaged and that there was only a ‘remote chance’ that the appellant would suffer physical harm or have her property illegally seized or damaged ‘in the context of the sorts of outbreaks of civil unrest which have occurred in recent years’ in Indonesia if she returned now or in the reasonably foreseeable future.

33                  The Tribunal further noted that violence against Chinese Indonesians has not taken place as a result of government policy and that the government was willing and able to protect all its citizens without distinction.  This protection was held sufficient to remove a real chance of the appellant being persecuted by reason of her religion or ethnicity ‘in the context of the sporadic outbreaks of social unrest which have taken place, and which the Tribunal accepts are likely to continue to take place, in Indonesia’.

34                  The Tribunal concluded that the appellant did not satisfy s 36(2) of the Migration Act 1958 (Cth) (‘the Act’).

The Federal Magistrate’s decision

35                  The Federal Magistrate noted that the situation in Indonesia had changed significantly since the appellant’s departure in 1982 and by the date of the hearing before the Tribunal.  His Honour then referred to the appellant’s experiences on her way to Church and to the Tribunal’s finding that they did not constitute persecution within the meaning of s 91R of the Act.

36                  The Federal Magistrate accepted Dr Allars’ (who appeared for the first respondent) submission that the personal harm suffered by the appellant up to her departure did not meet the test of persecution and that the changes in Indonesia indicate that there was no real chance that a person of the appellant’s ethnicity and religion would suffer harm on returning to Indonesia.  His Honour held that the appellant had not established that the Tribunal failed to exercise its jurisdiction pursuant to s 91R of the Act.

Persecution due to race: does a finding that the Chinese were targeted because of their general economic position and the perception of their wealth attract the protection of the Convention?

37                  The racial discrimination which the Tribunal described as “criminal offences” refers to the anti-Chinese riots and acts committed against the Chinese community in Indonesia by state and non-state elements.  The Tribunal’s conclusion, that this was due to the economic position and the perception of wealth of the Chinese community and that this did not attract the protection of the Convention is, in my view, untenable.  The Tribunal accepted that there was a racial element in these offences.  It conceded that its theory that the offences were linked only to wealth does not explain the attacks on small Chinese businesses, yet it failed to consider the racial basis of the offences.  The Tribunal’s conclusion, that offences perpetrated on a community because of its economic position are merely criminal in nature and not racially based, is a statement about the kind of offences that gave rise to the Convention itself. 

38                  If action is taken against members of a racial group because of a characteristic, actual or perceived, that is common to and attributed to the racial group, the action is based on the race of that group.  It is irrelevant whether the reason for the action is disapproval or resentment of that characteristic.  If such action amounts to persecution and gives rise to a well-founded fear of persecution on the part of a member of that race, the protection of the Convention may be sought.

39                  The Tribunal was obliged to consider whether those offences gave rise to a well-founded fear of persecution on the part of the appellant if she were to return to Indonesia.  Failure to do so constitutes jurisdictional error.

40                  The Tribunal did proceed to consider aspects of offences against ethnic Chinese in Indonesia since the appellant left Indonesia and as at the Tribunal decision but it is not clear to me whether the Tribunal included in its analysis the “criminal offences” that it had concluded were not racially based.

Did the Tribunal consider each of the appellant’s claims of persecution due to race?

41                  The Tribunal decision refers to separate issues but does not, as I read it, deal with them separately or make clear which finding is relevant to which of the appellant’s claims or make clear the relevance of some of the findings and observations in the context of the appellant’s claims.

42                  As I read the Tribunal decision, there were two elements to the appellant’s claims of persecution due to race: the personal claims and the offences committed against the ethnic Chinese in Indonesia.

43                  The Tribunal accepted the personal claims.  These were not in the nature of what the Tribunal called ‘criminal offences’.  However, the Tribunal failed to consider the personal claims in the context of the Convention and of the Act.  Such failure constitutes jurisdictional error.

44                  The Tribunal finding of a remote chance of persecution took into account only the persecution experienced by the appellant as a member of the Chinese community as a whole.  The Tribunal did not consider in its analysis of well-founded fear the personal claims of the appellant.  The Tribunal did not consider the adequacy of state protection in relation to the personal claims or whether they amounted to persecution under s 91R of the Act.  An analysis of well-founded fear of persecution and entitlement to protection will need to take those claims into account.

45                  There were a number of issues raised by counsel including whether a 5% risk of persecution can be considered a remote chance; whether the Tribunal in fact applied a mathematical test; whether the Tribunal conducted the appropriate analysis for the determination of well-founded fear; and whether the Tribunal properly applied s 91R of the Act.  Counsel also made submissions on the consequences of the Tribunal’s finding that ‘the Government of Indonesia will provide [the appellant] the same level of protection as to any other Indonesian citizen and with a level of protection sufficient to remove a real chance of her being persecuted by reason of her real or imputed religion (Christianity) or her ethnicity, in the context of the sporadic outbreaks of social unrest which have been taking place, and which the Tribunal accepts are likely to continue to take place, in Indonesia’.  Each of those matters depend on the Tribunal’s consideration of the whole of the appellant’s claims and will need to be determined by the Tribunal accordingly.

46                  The learned Federal Magistrate did not consider the question of the personal claims and the matter of those accepted claims on the Tribunal decision.  To that extent, his Honour was in error.

Was the discrimination experienced by the appellant by reason of religion persecution within s 91R of the Act?

47                  The appellant described and the Tribunal accepted the appellant’s claimed discrimination by reason of her religion.  The Tribunal held that the experiences did not amount to persecution within the meaning of s 91R of the Act as they did not constitute systematic and discriminatory conduct.  The claims were that, on her way to church, she was spat on, stones and tomatoes were thrown and she was verbally abused.

48                  The Tribunal did not refer in its decision to the requirement in s 91R that the persecution must involve serious harm to the person.  It did find, however, that what the appellant described amounted to ‘very unpleasant experiences’.

49                  The Tribunal relied upon independent information concerning the approach of the Indonesian government to the practice and teachings of the recognised religions in coming to its conclusion that it did not accept that the appellant has a well-founded fear of being persecuted by reason of her religion if she returns to Indonesia.

50                  The appellant has not demonstrated that her claimed experiences involved systematic conduct in the sense described by McHugh J in Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 at [99]and Crennan J in VSAI v Minister for Immigration and Multicultural and Indigenous Affairs  [2004] FCA 1602.

51                  The submissions by counsel with respect to s 91R focused on systematic and discriminatory conduct by reference to the actions of non-state agents against the Chinese community for reasons of race.  The appellant has not explained or established why the Tribunal decision with respect to the appellant’s religion is affected by jurisdictional error. 

Conclusion

52                  The Tribunal did not demonstrate apprehended bias.

53                  The appellant has not established error on the part of the Tribunal in its consideration of her claims of persecution by reason of her religion.

54                  The Tribunal did err in concluding that persecution because of a characteristic of a racial group does not attract the protection of the Convention.

55                  The Tribunal decision is affected by jurisdictional error in a failure properly to consider all the appellant’s claims and the effect of the totality of those claims on a well-founded fear of persecution.

56                  The Federal Magistrate was in error in failing to find jurisdictional error.  The appeal should be allowed and the matter remitted to the Tribunal for determination.  I will hear the parties as to costs.

Associate:

Dated:              9 March 2006