Setiara, Wira v Minister for Immigration & Multicultural Affairs [1998] FCA 541

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 138 of 1998

BETWEEN: WIRA SETIARA

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: EMMETT J

DATE OF ORDER: 12 may 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 138 of 1998

BETWEEN: WIRA SETIARA

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: EMMETT J

DATE: 12 may 1998

PLACE: SYDNEY

EX TEMPORE REASONS FOR JUDGMENT HIS HONOUR: I have before me an application for an order of review of a decision of the Refugee Review Tribunal ("the Tribunal") constituted by Kerry Anne Hartman. The Applicant is a citizen of Indonesia who arrived in Australia on 11 July 1993. On 17 April 1996 he lodged an application for a protection visa with the Department. There was no indication as to why the application was made in April 1996 and not earlier. The Minister's delegate refused to grant a protection visa on 14 May 1997. On 28 January 1998 the Tribunal confirmed the decision of the Minister's. The grounds stated in the application to this Court are as follows: 1. The decision involved an error of law in that: (a) procedures that were required by the Migration Act and the Migration Regulations to be observed in connection with the making of the decision were not observed. (b) the decision was an improper exercise of the power conferred by the Migration Act and Regulations. (c) the decision involved an error of law, being an error involving an incorrect application of the law to the facts as found by the respondent. (d) there was no evidence or the other material to justify the making of the decision. The Applicant appeared in person with the assistance of Dr Ron Witton interpreting from the Indonesian language. When asked to make submissions in support of the above grounds, the Applicant indicated that he wished to say nothing in relation to grounds (b), (c) and (d). There is nothing in the material before me which appears to me to support any argument in relation to grounds (b), (c) and (d). The Applicant's submission in support of ground (a) was, generally, that he was not given the opportunity of making submissions to the Tribunal in circumstances, which I shall describe below. In his application for a protection visa, the Applicant responded as follows to the question "Why did you leave Indonesia?": I left my home Country because I join the Demonstration so I scare to go back. I also scare because the fanatical group of my friends force me to change the religious to their religious. I didn't want to change my religious and I knew maybe one day they try to make a trouble to me especially I'M a Chinese descent. I will send the details later on. Apparently, no further details were sent. In the application to the Tribunal for review of the delegate's decision, the Applicant said in the section requiring reasons for the application: I disagree with the department decision because the decision's base informal information from the Indonesian's Government authority the department seemed only to have a little knowledge of the Indonesian real life situation. I will supply more argument and more information in the infrastructur [sic] political situation apply in Indonesia now. So I beg you to consider again kindly grant my protection visa. Apparently, no further information was sent by the Applicant to the Tribunal. On 18 November 1997, the Tribunal sent a letter to the Applicant. The letter was clearly received by the Applicant because he had it in Court before me. The letter relevantly provided as follows: The Tribunal has looked at all the papers relating to your application but it is unable to make a favourable decision on this information alone. Therefore you are entitled to come to a hearing of the Tribunal to give oral evidence if you wish to do so. ……………………………… If you decide to come to a hearing it will be: Date: Tuesday, 13 January 1998. Time: 12.00 pm. (please arrive at least 15 minutes before the start of the hearing) Place: Level 29, Pacific Power Building 201 Elizabeth Street Sydney 2000. The Tribunal will not change a hearing date unless it is satisfied that there are very good reasons to do so. ……………………………… You must now do two things immediately: 1. TELEPHONE Trinh Nguyen on (02) 9951 5818 to tell us whether you want a hearing or not.……………………………… 2. COMPLETE and RETURN the enclosed "Request for Hearing" form to this office. The form must reach this office no later than 14 days after the date on this letter. ……………………………… Any new document or written arguments to support your claim should reach the Tribunal no later than 7 days before your hearing. ……………………………… If we do not hear from you within 14 days, or if you fail to attend the hearing, the hearing will not take place and the Tribunal may make a decision on the evidence it already has. Yours sincerely for Deputy Registrar, Sydney Registry. The Applicant subsequently sent to the Tribunal a form entitled "Refugee Review Tribunal - Request for Hearing". In that form the Applicant ticked a box which said, "Yes, I want to give oral evidence at a hearing". The Applicant indicated in the form that he was being helped by an adviser, Mr Surya Chayana, described as an immigration agent. The Applicant also indicated that Mr Surya Chayana would attend the hearing. The Applicant did not appear at the hearing on 13 January 1998. Nor did he make any effort to communicate with the Tribunal to inform the Tribunal that he would not be attending or of the reasons for his non-attendance. The Tribunal therefore made a decision on the basis of the material before it. Following receipt of notification of the Tribunal's decision the Applicant filed his application to this Court. In doing so, he was assisted, he said, by Mr Surya Chayana. When the matter came before me for directions on 20 March 1988 the Applicant appeared in person and signed short minutes which required that he file by 8 May 1998 any affidavits upon which he intended to rely. No affidavits were filed. Nevertheless, I permitted the Applicant to give some oral evidence before me as to the reasons why he did not attend the hearing on 13 January 1998. He had previously made some statements from the bar table as to those matters. It is not totally clear that what he said from the bar table is consistent with what was said in evidence. The Applicant's evidence was that he did not attend the hearing because he had a headache. He said the headache lasted for three days. He said that he consulted a doctor in relation to his headache and that he was able to attend the doctor's rooms. However, he produced no other evidence to explain the extent of his headache or how incapacitating it was. From the bar table the Applicant said that he did not speak to the Tribunal after he recovered from his headache because he thought he would be given another opportunity. At one stage the Applicant said from the bar table that the reason why he did not speak to the Tribunal was because he did not know the telephone number of the Tribunal. He subsequently acknowledged that he did in fact have the telephone number in the letter of 18 November 1997 referred to above. When he received the notification of the decision he said that he thought the time had passed and that the Tribunal would not give him another opportunity. He said he thought they would assume he would appeal. The only ground which appears at least faintly applicable is that contained in section 476(1)(a) of the Migration Act 1958 (Cth) ("the Act"). It is a ground for review of a decision of the Tribunal that procedures that were required by the Act or the regulations to be observed in connection with the making of the decision were not observed. It may be that the drafter of the application to this Court had in mind section 420(2)(b) of the Act whereby the Tribunal, in reviewing a decision, must act according to substantial justice and the merits of the case. Having considered the material which was before the Tribunal and the reasons given by the Tribunal it does not appear to me to be arguable that the Tribunal failed to act according to substantial justice and the merits of the case. The Tribunal correctly stated the elements which must be established to justify the grant of a protection visa, namely, that the applicant must fear persecution, that the reason for the persecution must be found in the singling out of one or more of the Convention reasons, that the Applicant's fear of persecution for Convention reason is well-founded and, finally, that the Applicant is unable or unwilling because of his fear to avail himself of the protection of his country. The Tribunal in its reasons summarised the information available concerning the background of the Applicant. It was noted that he is of Chinese ethnicity and is a Christian. In his application for a protection visa, he said that he had been involved in a student demonstration, although he gave no details of the demonstration. He said that he was forced by a group of his fanatical friends to change his religion and that his friends will make trouble for him because he is Chinese. In evidence before me, the Applicant indicated that he had not in fact at this stage changed his religion but was concerned that if he returned his friends might compel him to do so. The Tribunal gave some consideration to the current situation in Indonesia. The evidence before the Tribunal indicated that official and informal discrimination against ethnic Chinese exists in Indonesia. During several demonstrations Chinese businesses and private homes had been the target for burning and looting. It was noted that there are also reports that some of the anti-Chinese sentiment in Indonesia is resentment of the wealth controlled by the Chinese. It was noted that riots with racist overtones had occurred in Java in October 1996, December 1996 and January 1997 where a number of ethnic Chinese were killed. Chinese owned shops, houses, cars and Christian churches were destroyed. Analysts suggest that the cause of the riots was political, social and economic frustration. The Tribunal found, however, that protection was available from the Indonesian authorities to Chinese Christians in response to the conduct of mobs in instances of civil disturbances. The Tribunal also noted that the Indonesian constitution provides for religious freedom and that the government recognises Islam, Christianity, Buddhism and Hinduism. Although the population is overwhelmingly Muslim, the practice and teachings of the other recognised faiths are respected. Outbreaks of religious tensions and church attacks have occurred in Indonesia but reports indicate that the police have responded to and quelled the riots and that rioters are being prosecuted and sentenced. It cannot be said that the Indonesian government tolerates ethnic or religious violence or fails to protect the Chinese Christian community in such incidents. The Tribunal also noted that the Indonesian constitution provides for freedom of assembly and association. However the government places significant controls on the exercise of those rights. Until 1995 public meetings of five or more persons as well as academic or other seminars and marches and demonstrations required permits from the police and several government agencies. The government promulgated regulations in December 1995 that eliminated the permit requirements for some types of public hearings. The requirement to notify the police however remained. Whilst it is quite clear that the Tribunal was conscious of difficulties which might exist in Indonesia for somebody in a position of the Applicant, the Tribunal's conclusions were that there was no evidence before it to enable it to find that the treatment which the Applicant fears because he joined a demonstration amounted to persecution for any of the Convention reasons. There is nothing in the Applicant's claims to indicate how he was being forced to change his religion or whether or not serious pressure was applied to him. There was no evidence to indicate whether the Applicant resisted the pressure to change his religion or whether he sought assistance from the authorities. Of course, the Applicant did not give the Tribunal the opportunity to explore aspects of the claim. For that reason, the Tribunal was unable to be satisfied on the evidence before it that the Applicant faced persecution owing to his religion. While the Tribunal accepted that there is widespread discrimination towards people of Chinese descent in Indonesia, the Tribunal was not satisfied that the Applicant was a person to whom Australia has protection obligations, since the Applicant had provided no evidence that he suffered any treatment amounting to persecution because of his race or that he would be at risk of persecution in the reasonably foreseeable future. In the light of the above summary of the Tribunal's conclusions, I consider that there is no basis for concluding that the Tribunal did not act according to substantial justice and the merits of the case. Further, I am satisfied that there has been no failure to comply with the procedures required by the Act to be observed. Section 424 of the Act provides that if, after considering the material contained in the documents given to the Registrar, the Tribunal is prepared to make the decision or recommendation on the review that is most favourable to the applicant, the Tribunal may make the decision or recommendation without taking oral evidence. However, under section 425, where section 424 does not apply the Tribunal must give the applicant an opportunity to appear before it to give evidence and may obtain such other evidence as it considers necessary. Subject to the requirement that the applicant be given an opportunity to appear before it to give evidence, the Tribunal is not required to allow any person to address it orally about the issues arising in relation to the decision under review. It is apparent from the facts which I have recited above that the Tribunal offered the Applicant the opportunity of a hearing which the Applicant accepted. The Applicant apparently had the assistance of an adviser at various stages. He did say that the adviser told him a week before 13 January 1998 that he was too busy to attend the hearing. There has, however, been no corroboration from the adviser as to those matters, notwithstanding that the adviser gave assistance to the Applicant in connection with the application to this Court. There has been no explanation as to why the adviser could not have given evidence before me. I have been referred by counsel for the Minister to the decision of Rajiv Singh Budial v Minister for Immigration and Multicultural Affairs (unreported, Federal Court of Australia, Tamberlin J, 20 March 1998) in which his Honour allowed an application for review and set aside the decision of a Tribunal. The circumstances of that case appear to me to be relevantly different from the circumstances before me. In that case a letter in much the same form as that to which I have referred was sent to an applicant. However, the applicant did not respond to the letter and a decision was made without any further reference to the applicant. His Honour made these observations: It is common ground that the last two lines of the letter of 8 September 1997, imposing the fourteen day cut-off date, were in standard form. There is no indication that any regard was directed, when settling the period, to the individual circumstances of the applicant. It is suggested that the failure to have regard to the particular circumstances in determining whether a reasonable time had been given coupled with the application of a standard period, as a matter of policy, gave rise to an additional error of law. It seems to me that there is force in this argument and, in my view, it would constitute a separate and independent ground for concluding that the RRT had erred. Having regard to the foregoing it cannot be said, in the present case, that the RRT has acted according to substantial justice and the merits of the case within section 420(2)(b) of the Act. The merits of the case have not been fully investigated due, in part, to the absence of the applicant. Nor has the RRT acted according to substantial justice because the applicant has been wrongly denied his entitlement to a hearing conferred by section 425. The cancellation of the opportunity to appear at a hearing is, in my view, clearly a procedure within the meaning of section 476(1)(a) of the Act. Because the procedure required by the Act, in both sections 420(2)(b) and 425(1), has not been followed in this case, this Court has the necessary jurisdiction to review the matter. Thus, his Honour was in substance concluding, as I read those observations, that there was a failure to comply with section 425 because the applicant in that case was not given adequate opportunity to give oral evidence. That is different from the case presently before me because the Applicant was given ample notice and in fact accepted the opportunity. I do not consider that there should be imposed upon the Tribunal an obligation to pursue an applicant who does not appear at the appointed time in circumstances where it is clear that the applicant had received notification of the hearing and was in receipt of assistance from an adviser. The warning at the end of the letter, that if the applicant fails to attend the hearing, the hearing will not take place and the Tribunal may make a decision on the evidence it already has, is unequivocal. It is difficult for an applicant appearing in person to give any real assistance to the Court, either by way of submission or by way of leading evidence. However, in circumstances where the Applicant had the assistance of an adviser in the making of the application to the Court, it seems to me that the Court should assume that the Applicant has received at least some assistance as to the grounds stated in the application. I am satisfied that the Tribunal did give the Applicant an opportunity to appear before it to give evidence. I do not find the Applicant's evidence as to his failure to attend and failure to make any subsequent approach to the Tribunal convincing. Had he informed the Tribunal of the reason for his non-attendance, it may have been incumbent upon the Tribunal to give him a further opportunity to attend to give oral evidence. However, that question does not arise. I am not satisfied, therefore, that any of the grounds in section 476(1) have been made out and it follows, in my opinion, that the application should be dismissed with costs. I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett