FEDERAL COURT OF AUSTRALIA S275 of 2003 v Refugee Review Tribunal [2004] FCA 677 S275 OF 2003 v REFUGEE REVIEW TRIBUNAL & ORS N 993 OF 2003 EMMETT J 3 FEBRUARY 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 993 OF 2003 ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA BETWEEN: S275 OF 2003 APPLICANT AND: REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT SECRETARY OF THE DEPARTMENT OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS SECOND RESPONDENT COMMONWEALTH OF AUSTRALIA THIRD RESPONDENT JUDGE: EMMETT J DATE OF ORDER: 3 FEBRUARY 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. the application be dismissed; 2. the applicant pay the second and third respondents' 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 N 993 OF 2003 ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA BETWEEN: S275 OF 2003 APPLICANT AND: REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT SECRETARY OF THE DEPARTMENT OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS SECOND RESPONDENT COMMONWEALTH OF AUSTRALIA THIRD RESPONDENT JUDGE: EMMETT J DATE: 3 FEBRUARY 2004 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant, who is a citizen of Indonesia, arrived in Australia on 18 April 1998. On 28 April or 28 May 1998 he lodged an application for a protection visa under the Migration Act 1958 (Cth). On 12 August 1999, a delegate of the second respondent, the Minister for Immigration & Multicultural & Indigenous Affairs ('the Minister'), refused to grant a protection visa and on 14 September 1999 the applicant applied for a review of that decision by the Refugee Review Tribunal ('the Tribunal'). On 15 February 2000, the Tribunal affirmed the decision not to grant a protection visa. 2 On 9 March 2000, the applicant became a party to proceeding S 89 of 1999 in the High Court of Australia. As a result of the orders made by Gaudron J on 25 November 2002, the applicant filed a draft order nisi in the High Court of Australia on 10 June 2003 seeking constitutional writ relief in respect of the Tribunal's decision. Pursuant to Guadron J's orders, the application was remitted to this Court. 3 In its reasons, the Tribunal noted that the applicant claimed a number of matters as justifying his entitlement to a protection visa by reason of a well-founded fear of persecution for a Convention reason. He claimed that he was a past member of the Aceh Merdeka Movement and that, whilst he was a member, he sought to maintain communications for that group between villages, especially between Sigli, Batu and Medan. 4 The Tribunal referred to the applicant's claim that, in August 1989, conflict arose between the military and members of the Aceh Merdeka Movement and a close friend of the applicant was shot by the military and detained in military barracks. As a result of pressure placed on the applicant's friend, by mistreatment and brutality, the applicant's friend revealed the applicant's membership of the Aceh Merdeka Movement to the military. On 13 August 1989, the military police visited the applicant's home in Sigli searching for him. Having seen them approach, he climbed into the roof and waited for them to leave. That night he left the area and went from Sigli to Tringading and eventually to Medan. Since nobody would hide the applicant in Medan, he went to Jakarta, where he remained until he left for Australia in 1998. He says that the police continued to make inquiries regarding his whereabouts. 5 The Tribunal accepted that the applicant is a national of Indonesia. The Tribunal had regard to the fact that the applicant had stated that, apart from several isolated incidents described above, there were no claims to indicate he had experienced persecution. The Tribunal considered that the applicant may well not have been of sufficient profile to have been black-listed by the police and observed that he was able to get a certificate of good conduct from the regional police, and was able to pass the police check when he departed from Indonesia on a passport bearing his photograph and details. 6 The Tribunal accepted that the applicant may have paid bribes to obtain his passport and visa, but was persuaded, by the fact that he was still able to get a certificate of good conduct and to pass the police check on leaving the country, that he was not likely to be of interest to the authorities. The Tribunal had regard to the fact that the applicant had no difficulty in attending school or gaining employment, had not lived in Aceh since 1990 and did not experience difficulty in living in Jakarta. The Tribunal observed that the applicant's wife and two daughters also moved to Jakarta, although they had previously lived safely in Aceh. 7 The Tribunal stated that a person could not be said to be at risk of persecution if he could access effective protection in some part of his state of origin and it was reasonable to do so. The Tribunal found that the applicant could live elsewhere, since he had lived in Jakarta for seven years and in Australia since 1998. The Tribunal was not satisfied that there was a real chance of persecution of the applicant if he returned to Indonesia. 8 The draft order nisi filed in the High Court asserts the applicant was denied procedural fairness on the following grounds: (a) The Tribunal failed to afford the applicant natural justice because the applicant had not been given an opportunity or an adequate opportunity to prepare and present favourable material at the hearing, or an adequate opportunity to respond to unfavourable material. (b) The Tribunal failed to afford the applicant natural justice because the applicant did not have the benefit of the Tribunal being in receipt of full country information upon which the primary decision of the delegate had been made in relation to a protection visa. 9 If the decision of the Tribunal was not attended with jurisdictional error, it was a privative clause decision and is therefore not subject to review in this Court. The assertion that the applicant was denied an opportunity to comment on information appears to have no foundation. The applicant was provided with an opportunity to attend a hearing before the Tribunal and he did so. At that hearing, he was provided with the opportunity to give evidence and comment on information put to him by the Tribunal, as appears from the detailed reasons of the Tribunal. Indeed, some parts of the applicant's claims were accepted by the Tribunal. In essence, the Tribunal's decision was that the facts asserted by the applicant did not give rise to a sufficient threat of persecution within the meaning of the Convention. 10 It is clear that the Tribunal accepted substantial parts of the applicant's evidence. The assertion that he was given only an illusory right to be heard has no foundation. Prior to the hearing, the applicant was given an opportunity to submit further material, which he did as the Tribunal indicated in its reasons. 11 The second ground set out in the draft order nisi raises facts similar to those agreed upon by the Minister for the purposes of Muin v Refugee Review Tribunal (S36 of 1999); Lie v Refugee Review Tribunal (S89 of 1999) (2002) 190 ALR 601; [2002] HCA 30. However, the applicant has made no effort to establish the facts that would justify a conclusion based on the decision in those cases. The Tribunal's decision does not appear to have been based on country information and there is no challenge by the applicant to the findings concerning the situation in Indonesia, subject to one matter, referred to below. The essence of the Tribunal's decision is that it would be safe for the applicant to be in Jakarta, where he had lived for some years before coming to Australia. 12 The applicant asserted that circumstances change in Indonesia from time to time. Be that as it may, the Tribunal's obligation was to decide the case on the basis of the state of affairs at the date of the decision. The Tribunal had regard to evidence given by the applicant that members of the Aceh Merdeka Movement in Malaysia were being sent back to Indonesia and were being detained by military police. The applicant asserted that the Tribunal failed to have regard to his evidence that in 1998 and 1999 soldiers swept through Indonesia looking for people from Aceh. However, the applicant left Indonesia in 1998. 13 Pursuant to orders that I gave, the applicant filed a statement of contentions, upon which he relied. Apart from one matter, referred to below, the contentions do not raise any matter that would go to the essence of the Tribunal's decision, other than to take issue with the factual findings made by the Tribunal. The assertion was that the findings made by the Tribunal were not true and that the Tribunal ignored the applicant's assertion that the Indonesian Government was good at saying one thing and doing another. 14 The one matter to which reference should be made is the assertion by the applicant that the Tribunal neglected to assess the danger facing him as a result of his activities in Australia in support of the Acehnese independence movement and as a result of the increase in the military's desire to get rid of the applicant because he sought asylum in Australia. However, in the course of the oral hearing, the applicant accepted that he did not make such a claim before the Tribunal. He referred to photographs which he said were tendered and rejected by the Tribunal as irrelevant. The photographs were said to be of the applicant demonstrating outside the Indonesian Consulate. 15 I do not consider that it is jurisdictional error on the part of the Tribunal to fail to have regard to a contention that was never advanced before the Tribunal. The applicant said that the reason he did not make such a contention to the Tribunal was that he was not asked. However, he tendered the photographs although he apparently did not explain to the Tribunal why the photographs would have any relevance. In the circumstances, I do not regard the failure by the Tribunal to have regard to the activities of the applicant in Australia as an error. 16 In all the circumstances, I am not persuaded that there has been any error on the part of the Tribunal that could be characterised as jurisdictional error. It follows that the decision of the Tribunal is a privative clause decision within the meaning of s 474 and this Court has no power to interfere with it. It follows that the application must be dismissed. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 31 May 2004 Counsel for the Applicant: The Applicant appeared in person Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 3 February 2004 Date of Judgment: 3 February 2004