FEDERAL COURT OF AUSTRALIA VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1474 VNAA and VNAB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V 99 of 2003 RYAN J 12 DECEMBER 2003 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 99 of 2003 BETWEEN: VNAA First Applicant VNAB Second Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent JUDGE: RYAN J DATE OF ORDER: 12 DECEMBER 2003 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicants pay the respondent's costs of the application, such costs to be taxed in default of agreement. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 99 of 2003 BETWEEN: VNAA First Applicant VNAB Second Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent JUDGE: RYAN J DATE: 12 DECEMBER 2003 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 There is before the Court an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") on 4 February 2003 affirming a decision by a delegate of the respondent Minister refusing to grant the applicants protection visas. The delegate's refusal occurred on 18 April 2002 and was notified to the applicants on the same day. On 20 May 2002 the applicants applied to the Tribunal for review of the decision of the delegate. The applicants gave as their home address on the application form "23 Wentworth Auburn 2144" and as their mailing address "PO Box K412 Haymarket 1240". No telephone number was furnished and the applicants did not complete that part of the application form which provided for the nomination of "someone to receive correspondence and to act on your behalf." 2 By letter dated 21 May 2002 addressed to the male applicant at the mailing address shown on the application, the Tribunal acknowledged receipt of the application. That letter included the following passages; 'We have asked the Department to send a copy of its documents about your case to the Tribunal. When we receive the Department's documents, the Tribunal will look at your papers and decide whether it has jurisdiction to consider your application. If so, it will then look at your papers along with any other evidence on the Tribunal file to determine whether it can make a decision in your favour. If the Tribunal cannot make a decision in your favour, you will be asked whether you want to come to a hearing of the Tribunal to give oral evidence and to present arguments. Some hearings are conducted by video or telephone conference. If you have any new documents or written evidence, you should send them to the Tribunal at the earliest possible point in the review process. You should quote the file number shown at the top of this letter when sending any documents to the Tribunal. Any documents that are not in English are to be translated into English by an accredited translator. … … … Important: While your application is being dealt with, you must advise the Tribunal of any change in your home address, your mailing address, your telephone number or any change in the name and address of your authorised recipient. If you do not, your case may be decided in your absence. (You are also required to inform the Department) The Tribunal will acknowledge any change of contact information you provide.' (original emphasis) 3 On 10 October 2002, the Tribunal sent by registered post a letter to both the mailing address of the applicants and to the residential address "23 Wentworth St Auburn NSW 2144." The latter letter was returned to the Tribunal with a "Return to Sender" label affixed to it which indicated "no such address". In the body of each letter the following indication was given; 'The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone. Hearing of the Tribunal We now invite you and any persons listed above to come to a hearing of the Tribunal to give oral evidence and present arguments in support of your claims. You can also ask the Tribunal to obtain oral evidence from another person or persons. If you want to come to a hearing it will be on: Date: Monday, 6 January 2003 Time: 9.00 AM Please arrive at least 15 minutes before the start of the hearing Place: Level 29, Pacific Power Building, 201 Elizabeth Street, Sydney Important information about your hearing · The Tribunal will only change this hearing date for good reasons. If you think you might be unable to attend the hearing, you must contact the Tribunal immediately. If you do not attend the hearing and the Tribunal does not postpone the hearing, it can make a decision on your case without further notice. · If you have a passport you should bring it to the hearing.' 4 The applicants claim that they did not receive either the letter sent to their mailing address or that which had been returned to the Tribunal. There is no evidence indicating by whom the registered letter addressed to PO Box K412 Haymarket was received. 5 Neither applicant attended at the hearing which had been fixed for 9.00 am on 6 January 2003 and, on 7 January 2003, the Tribunal decided to affirm the decision not to grant protection visas. The reasons for that decision were handed down on 4 February 2003 and a copy was posted to the same mailing address at "PO Box K412 Haymarket NSW 1240." 6 In its reasons for decision, the Tribunal noted that the applicants claimed to be Indonesian citizens and had arrived in Australia on 25 November 2001. It noted that an invitation to attend the hearing on 6 January 2003 had been posted and continued; 'No response was received. The letter of invitation sent to the address for service was returned unclaimed. A copy of the letter was also sent to the residential address. The Tribunal confirmed that it had been sent to the most recent address for service, and residential address, on file. It also confirmed by way of a Movements Database check with the Department that the applicants had not left Australia. They did not appear before the Tribunal on the day and at the time and place at which they were scheduled to appear. In these circumstances, and pursuant to s 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicants to appear before it.' 7 Thereafter in its reasons, the Tribunal referred to the first named, male, applicant as "the applicant". It noted that he is of Chinese ethnic background and a Christian. It further recorded that the applicants had claimed to have left Indonesia because they had "suffered a massive trauma caused by the 15 May 1998 incidents." The Tribunal continued; 'He says that he was tortured and their shop burned to the ground because they are Chinese. Since these incidents, the applicant says, their lives have been shattered. He says that their church was also fire-bombed.' 8 The Tribunal then reviewed a body of "country information" about Indonesia which tended to the conclusion that ethnic Chinese, including those adhering to the Christian religion, were no longer generally at risk of persecution in Indonesia. Under the heading "Finding and Reasons" the Tribunal observed; 'The applicant provided very little detail in relation to his claims. While he claims to have suffered a "massive trauma" because of the events of May 1998, he and the applicant wife did not leave Indonesia until November 2001, more than three years after the event. While the applicant in his application form says that he was employed as a waiter from 1995 until October 2001, he makes reference in his statement of claims to having a shop which he claims to have been burnt down in May 1998. The applicant implies that he was tortured on 15 May 1998 during anti-Chinese riots, but provides no detail about his mistreatment. On the evidence provided by the applicant, the Tribunal is not satisfied that he was in fact tortured or had his shop burned down in May 1998 as he claims. The Tribunal is not satisfied on the available evidence that the applicant has suffered serious harm in the past. Even if he was subjected to mistreatment during the May 1998 riots, he has not claimed to have suffered further harm. While the applicants' usual church may have been fire bombed, the country information would indicate that freedom of worship is provided for in the Constitution, and other churches in Jakarta would be accessible to the applicants. The Tribunal has not been satisfied that the applicant has suffered harm amounting to persecution in the past. It is required to consider whether there is a real chance that he will be persecuted if he returns to Indonesia in the foreseeable future. The independent information quoted at pages 5-10 above indicates that people of Chinese ethnic background are unlikely to be at risk of serious harm under the current regime in Indonesia. While there continue to be outbreaks of violence, especially violence against Christians, the applicant has not satisfied the Tribunal that he personally has been the victim of serious violence in the past, and in any event the government appears both capable of and willing to address such violence should it occur. The applicant has put forward no claims, other than his religion and his Chinese background, which might put him at risk of Convention-based persecution in Indonesia. The Tribunal is therefore not satisfied that there is a real chance that the applicant will be persecuted for a Convention reason if he returns to Indonesia in the foreseeable future. It is therefore not satisfied that the applicant has a well-founded fear of persecution.' 9 Counsel for the applicants referred first to s 425 of the Migration Act 1958 ("the Act") which provides; 'Tribunal must invite applicant to appear (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. (2) Subsection (1) does not apply if: (a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or (c) subsection 424C(1) or (2) applies to the applicant. (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.' 10 Compliance with that section was held in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 198 ALR 293 to be a precondition to the valid exercise of the Tribunal's jurisdiction. Failure to comply is therefore a jurisdictional error. 11 Reference was then made to s 425A of the Act which provides; '(1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear. (2) The notice must be given to the applicant: (a) except where paragraph (b) applies - by one of the methods specified in section 441A; or (b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person. (3) The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period. (4) The notice must contain a statement of the effect of section 426A.' 12 Section 426A provides; '(1) If the applicant: (a) is invited under section 425 to appear before the Tribunal; and (b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear; the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. (2) This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.' 13 It was submitted that the legislation draws a distinction between the invitation contemplated by s 425(1) and the notice required by s 425A to be given of the time and place at which the applicant is scheduled to appear. It is only the notice, so the argument went, that is required to be given by one of the methods specified in s 441A. However, s 441A provides; 'Coverage of section (1) For the purposes of provisions of this Part or the regulations that: (a) require or permit the Tribunal to give a document to a person (the recipient ); and (b) state that the Tribunal must do so by one of the methods specified in this section; the methods are as follows. Giving by hand (2) One method consists of a member, the Registrar or an officer of the Tribunal, or a person authorised in writing by the Registrar, handing the document to the recipient. Handing to a person at last residential or business address (3) Another method consists of a member, the Registrar or an officer of the Tribunal, or a person authorised in writing by the Registrar, handing the document to another person who: (a) is at the last residential or business address provided to the Tribunal by the recipient in connection with the review; and (b) appears to live there (in the case of a residential address) or work there (in the case of a business address); and (c) appears to be at least 16 years of age. Dispatch by prepaid post or by other prepaid means (4) Another method consists of a member, the Registrar or an officer of the Tribunal, dating the document, and then dispatching it: (a) within 3 working days (in the place of dispatch) of the date of the document; and (b) by prepaid post or by other prepaid means; and (c) to: (i) the last address for service provided to the Tribunal by the recipient in connection with the review; or (ii) the last residential or business address provided to the Tribunal by the recipient in connection with the review. Transmission by fax, e-mail or other electronic means (5) Another method consists of a member, the Registrar or an officer of the Tribunal, transmitting the document by: (a) fax; or (b) e-mail; or (c) other electronic means; to the last fax number, e-mail address or other electronic address, as the case may be, provided to the Tribunal by the recipient in connection with the review.' (original emphasis) 14 Section 441C in turn provides; '(1) This section applies if the Tribunal gives a document to a person other than the Secretary by one of the methods specified in section 441A (including in a case covered by section 441AA). … … … Dispatch by prepaid post or by other prepaid means (4) If the Tribunal gives a document to a person by the method in subsection 441A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document: (a) if the document was dispatched from a place in Australia to an address in Australia - 7 working days (in the place of that address) after the date of the document; or (b) in any other case - 21 days after the date of the document.' 15 Sub-section 441A therefore clearly contemplates that both an invitation and a notice under s 424A if in writing and sent by prepaid post are taken to have been given to the applicant if sent to his or her last address for service or last residential address. In this case the invitation and the notice of the time and place of the hearing were both embodied in the one document. They were sent to both the applicants' address for service and their last residential address provided on their application for review. Accordingly, since the invitation is taken to have been duly given to the applicants, it follows that they were invited to appear as required by s 425(1). Their failure to appear allowed the Tribunal under s 426A(1) to make a decision on their application in their absence. The fact that the applicants never became aware of the invitation does not displace the conclusion mandated by s 441C that it was duly given to them. 16 The present case is distinguishable from that considered by the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. In that case the invitation and the notice of hearing had been duly given and received but the applicant became ill and his representative sent an urgent message to the Tribunal seeking another hearing date. Due to an administrative error that message did not come to the notice of the Tribunal member conducting the hearing. The member proceeded with the hearing and later affirmed the delegate's decision. Subsequently, the Tribunal accorded the applicant a fresh hearing after which it revoked the delegate's decision. It was held that the administrative error had caused the Tribunal to fail to implement its own intention to accord the applicant an opportunity to be heard. In the present case there was no administrative error. The Tribunal had, in the manner prescribed by the Act, accorded the applicant an opportunity to be heard. Its intentions had not been frustrated in any way. 17 If the applicants' argument were right, the Tribunal would be required in each case to be affirmatively satisfied that the invitation under s 425 had actually come to the notice of the applicant. To proceed in the absence of such affirmative satisfaction would, on the applicants' argument, convict the Tribunal of jurisdictional error. That argument flies in the face of the statutory scheme discernible in ss 441A and 441C and must, I consider, be rejected. 18 The applicants were granted leave to adduce evidence on this appeal directed to the issue of whether in fact they received the invitation and the notice of the time and place of the hearing sent to them by the Tribunal. Given my conclusions on the applicable law, it is not necessary to make findings upon that evidence. 19 The applicants further contended that there had been a breach of s 424A which provides; '(1) Subject to subsection (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it. (2) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies - by one of the methods specified in section 441A; or (b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person. (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application; or (c) that is non-disclosable information.' 20 It was contended that the "independent" or "country information" to which the Tribunal referred was "not just about a class of persons of which the applicant …. was a member." Rather, it was said, it went to "many aspects of the whole situation in the applicants' country" including actions of those who, the applicant feared, might subject him to persecution if he were returned to Indonesia. It was submitted that the exception in s 424A(3)(a) was to be narrowly construed consistently with its apparent function as an exception to a wide-ranging expression of the duty cast on the Tribunal by s 424A(1) to accord natural justice to an applicant; see Minister for Immigration v Al Shamry (2001) 110 FCR 27 per Ryan and Conti JJ at 34 [20] and per Merkel J at 39 [36]. 21 It is clear that the "independent" or "country" information relied on by the Tribunal was not specifically about the applicant, his wife or any other person. It was apparent from their application for a protection visa that the applicants claimed to fear persecution in Indonesia for reasons of race or religion or their membership of a particular social group; ie the ethnic Chinese minority. It was, therefore, appropriate for the Tribunal to have regard to "independent" or "country information" about those classes of persons of which the applicants claimed to be members and by reason of which membership they claimed to fear persecution. Those classes of persons were ethnic Chinese Indonesians and Christians. In some respects, the applicants' claim postulated a single composite class of ethnic Chinese adherents to the Christian faith. However, that feature of the case did not seem to affect the way in which the Tribunal considered the "independent" or "country" information to which it had regard. The question was whether it had relied, in reaching its decision, on information that was not just about those classes or that composite class of persons. 22 The Tribunal referred at p 5 of its decision to a Country Report on Human Rights Practices, 2000 for Indonesia by the US State Department which noted that; 'Attacks on places of worship reflect religious tensions, but other contributing factors include underlying socioeconomic and political tensions between poor Muslims and more affluent Sino-Indonesian Christians.' 23 The Tribunal next canvassed information from the Australian Department of Foreign Affairs and Trade ("DFAT") which contained these passages; 'Since the Jakarta May 1998 riots, there has been considerable anecdotal evidence of middle class Chinese Indonesians leaving Indonesia, either permanently or until they regain confidence that they can live here safely. … One contact confirmed that there continued to be a steady departure of middle class Chinese Indonesians … Another contact believed that there were higher than usual numbers of ethnic Chinese travelling out of Indonesia but this contact saw most of the travel as essentially short-term in nature … Only a small percentage, he believed, were now departing permanently. These were generally the younger generation equipped with English and more prepared to be internationally mobile, and prepared to make sacrifices to gain a better life in their countries of adoption. … In press coverage and our own contacts, we hear direct or indirect account of the Chinese Indonesian community's concerns that attacks directed against the Chinese, a feature of the riots of the first half of 1998, could be repeated. They fear not only for their personal safety but also for their shops, businesses, homes and places of worship (many are Christians). The well-publicised incidents of selective violence, and in particular the rapes and sexual attacks that took place mainly in Jakarta, have had a long-lasting, traumatising effect. We do not doubt that this is a genuinely-held concern. Its objective basis is, however, much less clear than a year ago. The worst disturbances in the last six months have been between Christians and Muslims (eg. in Ambon) or between ethnic groups other than the Chinese (eg. Sambas in north-west Kalimantan). In both these cases, there exist large Chinese minorities, active in business, who do not appear to have become a target (although occasionally sustaining some damage eg. in the extensive destruction of parts of the commercial area of Ambon). … The Government has indicated it intends to fulfil a number of its promises related to ending formal discrimination against the Chinese Indonesian minority: · It accepted the findings of a fact-finding team on the 14 May riots … · Indonesia has ratified the UN Convention on the Elimination of Racial Discrimination · Two presidential decrees have addressed anti-Chinese discrimination … · Some other cultural bans have been lifted or eased, eg. on having documents or books with Chinese script … · There are no longer separate identity cards for Chinese Indonesians … Working class Chinese Indonesians are a traditional constituency for PDI as the leading secular, nationalist force. Many middle class Chinese Indonesians for their part appreciate the message of religious tolerance that both Megawati and Gus Dur [Abdurrahmin Wahid] stress - and both their parties (especially Megawati's PDI-P) had Chinese financial backing during the recent campaign. (DFAT, "Chinese Emigration", Country Information Report No. 310/99, 6 August 1999 at CISNET CX41092).' 24 The Tribunal then noted the democratic election as President of Indonesia of Abdurrahman Wahid and his replacement after 15 months by Megawati Soekarnoputri. Both Presidents, especially Megawati, the Tribunal noted, had been assessed by DFAT as acceptable to Chinese Indonesians. It was then further noted that the latest US Department of State report made no reference to any abuses of the Chinese community in Indonesia during 2001. Although that information was essentially negative, it was, I consider, "just about a class of persons" being Chinese Indonesians. The Tribunal then quoted extensively, as follows, from a DFAT report on Indonesia's attitudes to ethnic Chinese and religious minorities; 'Indonesia has a long history of state sponsored discrimination against ethnic Chinese Indonesians which dates from the colonial period. Laws regulating the citizenship of ethnic Chinese and preventing them from holding positions in the bureaucracy were in force from independence until the fall of the Soeharto government in 1998. Government discrimination against ethnic Chinese increased further during the period of the authoritarian Soeharto government which enforced a policy of assimilation. Under this policy expressions of Chinese culture or religious practices and use of Chinese language including the publication of Chinese script were outlawed. The disproportionate wealth and power of the ethnic Chinese elites has bred resentment amongst many Indonesians. During the political unrest during the monetary crisis and in the lead up to the fall of the Soeharto government ethnic Chinese Indonesians became the targets of racially motivated political violence. Former President Abdurrachman Wahid abolished some of the laws and regulations which discriminated against ethnic Chinese Indonesians, in particular laws prohibiting the Chinese cultural and religious practices. Chinese New Year was officially celebrated for the first time in 2000. President Wahid also announced that the use of special codes on the identity cards of ethnic Chinese would be abolished but the regulations remain in force. Some other laws remain on the books but are observed in the breach, for example, the laws prohibiting publications in the Chinese language are still in force but in practice Chinese language publications are now widely available, and Chinese language radio and television programs are also broadcast. President Megawati Soekarnoputri has not made any specific policy statements about the treatment of ethnic Chinese or ethnic Chinese Christians. However, she has spoken often of the need to protect minority groups and protect religious freedom. She is the leader of PDI-P, a secular political party, and has been criticised by her political opponents for having a disproportionately high number of Christians on the executive of her party and in the cabinet. A number of her closest advisers and ministers are ethnic Chinese Christians and or Christians of other ethnic groups. We therefore judge that President Megawati supports policies of multiculturalism and non-discrimination towards ethnic Chinese, ethnic Chinese Christians and Christians… Many Indonesians resent the disproportionate wealth and power of the ethnic Chinese elites. As a result, racial discrimination against ethnic Chinese Indonesians lingers in Indonesian society today. Importantly, however, it is no longer actively sponsored by the state. Where communal conflict sporadically occurs in parts of Indonesia and in particular where Christians become targets (for example at the moment Maluku, north Maluku and Central Sulawesi), ethnic Chinese and particularly ethnic Chinese Christians are also likely to become targets… We are not aware of any other groups that we would consider to be at risk as a result of the new government or a change of policy. (CISNET document CX60489 of 12 December 2001).' 25 Although that extract refers specifically to the successive Indonesian Presidents, it is not about them but about their attitudes and those of their political associates to ethnic Chinese and Christian minorities. In that sense it is "just about" two classes of persons, or in places about the composite class of ethnic Chinese Christians. The same is true of an extensive extract from an Associated Press report of 28 August 2001 which recounts some experiences of Rusli Eddy or Chow Sewie, but that recital was not intended to convey information about him specifically but rather to exemplify what had happened to ethnic Chinese in Indonesia over many years. The same can be said of references in the same document to the former Indonesian Presidents Soekarno and General Soeharto and of a quotation from an ethnic Chinese lawmaker, Alvin Lie, that "There has been a significant change in attitudes. There is now much less discrimination". Likewise, a quotation attributed to the ethnic Chinese historian Ong Hok Sam, "The Chinese community has long supported Megawati. She will support us", was by way of explaining the President's favourable attitude to that specific class of persons. 26 Properly understood, I cannot discern anything in this material that is not simply information about the Chinese or Christian minorities, or about the composite class of ethnic Chinese Christians. All the material referred to is plainly information which is "just about a class of persons of which the applicant or other person is a member" and is within the exception embodied in s 424A(3)(a). I do not consider that the information is capable of being characterised as information about the situation in the country at large, and do not express any opinion on whether, if it had been information of that character, it would have been incumbent upon the Tribunal to put the substance of it to the applicants for comment. 27 For these reasons the applicants have failed on each of the grounds of review raised on their behalf. The application must be dismissed with costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan. Associate: Dated: 12 December 2003 Counsel for the Applicants: Mr A Krohn Solicitor for the Applicants: MSC Legal Services Counsel for the Respondent: Mr C Fairfield Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 23 June 2003 Date of Judgment: 12 December 2003