Applicant S56 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT Introduction: 1 This is a claim for a writ of mandamus and an injunction under s 75(v) of the Constitution. The applicant also seeks a writ of certiorari to quash a decision of the Refugee Review Tribunal ("the RRT") made on 21 August 2001 and handed down on 12 September 2001. The RRT affirmed a decision of a delegate of the Minister made on 28 February 2001 refusing to grant the applicant a protection visa. 2 The applicant is a citizen of Indonesia. He is a Christian of Timorese ethnicity. His claim in the RRT was that he did not want to return to Indonesia because of the clashes which took place in East Timor and the religious clashes in Ambon. He said that, as a Christian, he feared being targeted by Muslims. He also said that the authorities were involved in the targeting of Christians and would not protect him. 3 The RRT dealt with the application on the basis that he claimed to have a well-founded fear of persecution on the ground of his Timorese ethnicity and his Christian religion. The delegate understood that his claim was made on the ground of religion and dealt with it on that basis. 4 The applicant filed an application for a draft order nisi in the High Court on 18 March 2002. The proceedings were remitted to the Federal Court under s 44 of the Judiciary Act 1903 (Cth) by an order of Gaudron J made on 6 February 2003. Her Honour remitted the proceedings without deciding whether an order nisi ought to be made. 5 I dealt with the application under O 51A r 5 of the Federal Court Rules on the basis that I heard, at the same time, the question of whether an order nisi ought to be made and, if so, whether it ought to be made absolute. 6 The applicant's claims for relief were founded on the decision of the High Court in Muin v Refugee Review Tribunal (2002) 76 ALJR 966 ("Muin"). There were two bases for the relief sought in the draft order nisi. The first was that the Secretary of the Department of Immigration and Multicultural Affairs had failed to give to the Registrar of the RRT a number of Part B documents in contravention of s 418(3) of the Migration Act 1958 (Cth). 7 The second basis was that, by a letter dated 27 June 2001 from the RRT to the applicant, the RRT was said to have misrepresented that it had looked at all the material relating to the applicant's application for review of the delegate's decision. This was said to give rise to a denial of natural justice. The Delegate's Decision 8 The delegate stated that in determining whether the applicant had a well-founded fear of persecution on religious grounds he was guided by the country information included in the Part B documents. 9 He concluded that although the country information indicated numerous instances of inter-religious violence, the practice and teachings of Christianity are recognised and respected by the Indonesian Government. 10 The delegate also stated that, apart from general claims of religious discrimination, the applicant had not provided any information from which he could be satisfied that the applicant had suffered serious harm by reason of his Christian beliefs. The delegate said that this finding was reinforced by country information about the applicant's home province in West Timor which was referred to in the Part B documents. He said the documents indicated that Christianity was the predominant religion in that province. The RRT's letters to the applicant dated 23 March 2001 and 27 June 2001 11 The applicant applied to the RRT on 23 March 2001 for a review of the delegate's decision. On that date the RRT wrote to the applicant acknowledging receipt of the application. The letter also stated:- "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."(emphasis added) 12 On 27 June 2001 the RRT wrote to the applicant in the following terms:- "The Tribunal has looked at all the material relating to your application but it is not prepared to make a favourable decision on this information alone. You are now invited to come to a hearing of the Tribunal to give oral evidence, and present arguments, in support of your claims."(emphasis added) 13 The letter also stated:- "Enclosed for your information (and comment at hearing if you wish) are copies of material concerning the situation of Christians in Indonesia, which the Tribunal may rely upon in reaching its decision. There is also material which is relevant to the possibility of your relocation to an area of Indonesia without a history of anti-Christian disturbances (one such area is Bali, which has a long history of tolerance)." 14 On 11 July 2001 the RRT was advised in writing that the applicant did not wish to give oral evidence. The RRT therefore proceeded to determine the application "on the papers". The RRT's decision 15 The RRT stated that the applicant provided no details of his own experiences or circumstances relating to his claims. 16 As to the applicant's claimed fear of persecution on the ground of his race, the RRT said that the applicant's only comment was that life in Indonesia was not easy for Timorese because of what happened with Timorese independence. 17 The RRT stated that it was aware of no independent country information suggesting that ethnic Timorese from Indonesian West Timor were discriminated against or targeted or persecuted or exposed to violence. 18 The only "particular mater" which the applicant mentioned in relation to his claimed fear of persecution on the ground of religion was inter-religious clashes in Ambon which occurred after the applicant left Indonesia. 19 The RRT found that notwithstanding serious violence between Christians and Muslims in Ambon and Maluku, the evidence before the RRT did not lead it to the conclusion that the Indonesian authorities promote, condone or permit persecution of Christians or that they withhold reasonable protection. 20 The RRT found that the Indonesian authorities have consistently reacted strongly against religious violence. The RRT was satisfied that the authorities have acted firmly to suppress violence and to arrest those believed to be involved. 21 In any event, the RRT was satisfied that it was reasonably open to the applicant to relocate to Bali which has a long history of religious tolerance to avoid any perceived difficulty in relation to his fear of persecution as a Christian. The applicant's evidence 22 The applicant swore an affidavit on 23 September 2003 in support of his application. The affidavit was prepared by a solicitor who was then acting for the applicant. The solicitor ceased to act for the applicant approximately one month before the hearing. The applicant appeared in person before me. 23 The applicant frankly acknowledged in paragraph 5 of his affidavit that although he remembered receiving letters from the RRT, he could not, at the time he swore the affidavit, remember what the letters meant at the time when he read them. Nor could he remember the advice given to him by his migration agent with whom he discussed the letters. 24 He went on to say in his affidavit that he had recently been shown the letters of 23 March 2001 and 27 June 2001 by his solicitor. He said that to the best of his recollection he would have read and considered the letters when he received them. He referred to the words in those letters which I have highlighted in paras [11] and [12 ] above. 25 He then said:- "10. I understand from the statements that documents about my application were sent from the Department to the Tribunal and looked at. 11. Had I known information that could have helped me show that I had refugee claims which may not have been read or considered by the Tribunal, I would have asked them to read and consider it. I would also have expected my migration agent to help me with this problem." 26 The applicant was cross-examined on his affidavit. It is plain that he cannot speak or read English. He relied very heavily on his migration agent as to how his application for review was conducted. 27 His evidence under cross-examination was that when he received the letters he took them to the migration agent and that the migration agent made all the decisions as to how to progress the case. 28 He conceded that paragraph 11 of his affidavit, in which he said that if he had known that the RRT may not have read or considered certain documents he would have asked the RRT to read and consider the documents, was not correct. 29 He said that the correct position was that he would have simply trusted his migration agent to do what he considered appropriate. 30 The migration agent did not give evidence in these proceedings. Whether there was a contravention of s 418(3) 31 Section 418(3) of the Act provides:- "The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision." 32 There are two short answers to this ground. The first is that in Muin a majority of the justices were of the view that a contravention of the sub-section would not entitle an applicant to injunctive relief or to relief by way of constitutional writs; see at [21] Gleeson CJ, [56] Gaudron J, [173] - [179] Gummow J; [251] Hayne J. 33 The second answer is that there is no evidence to make out a breach of the section. As a Full Court said in SDAN v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 351 at [8]: "Simply because some documents in evidence before the delegate were not cited by the Tribunal does not mean that the Secretary was in breach of the obligation imposed by s 418(3)". 34 Here, the RRT referred to a number of items of country information when considering the situation of Christians in Indonesia. Failure to refer to any other documents dealing with that question which might have been favourable to the applicant does not give rise to an inference that the Secretary failed to give them to the Registrar in breach of s 418(3). 35 Nor does the statement in the RRT's reasons that it was aware of no independent country information suggesting that ethnic Timorese from West Timor were persecuted provide evidence that the Secretary failed to give documents relating to that question to the Registrar. 36 In any event, a failure to give such documents, (i.e. on the situation of ethnic Timorese), would not constitute a contravention of s 418(3) because the obligation is to give documents which are "considered by the Secretary to be relevant to the review". In the absence of any direct evidence as to what documents the Secretary considered to be relevant, it seems to me that this question is to be determined by reference to how the delegate approached the claim. This is because, ordinarily, the Secretary could only consider what documents would be relevant to the review by reference to the claims which were dealt with by the delegate. There was nothing to suggest that the Secretary was informed that ethnicity would be considered by the RRT as a possible claim. 37 Here, the delegate did not see the applicant's ethnicity as a claim. He understood that the substance of the claim was that the applicant feared harm because of his Christian religion. Accordingly, I do not see how the Secretary could have considered documents on the question of Timorese ethnicity to be relevant to the review. Whether there was a denial of natural justice 38 It is clear, as Kiefel J (with which Spender J and Moore J agreed) observed in NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 293 at [24] that Muin does not establish that the sending of a letter in terms of the letter of 27 June 2001 will amount to a denial of procedural fairness in circumstances where the RRT has not referred to the Part B documents in its later decision. Rather, as her Honour said, Muin holds that there is a want of procedural fairness where an applicant is misled into thinking that the RRT has considered particular relevant information and, as a result, did not ensure that the information was placed before it. 39 Hely J referred with approval to her Honour's observations about the Muin principle in NADZ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 118 at [14]. His Honour also pointed out at [14] that the decision of the High Court in Re Minister for Immigration & Multicultural Affairs; ex parte Lam (2003) 77 ALJR 699 confirms that an applicant in a case such as this must show that he relied to his disadvantage upon communications from the RRT before there is any question of a want of procedural fairness. 40 It was central to the outcome in Muin that most of the elements of the claim were the subject of an agreed statement of facts. As a Full Court observed in VAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 350 at [24] it was of importance that it was an agreed fact that the plaintiffs in Muin believed that the Part B documents had been sent to and looked at by the RRT and that they would have highlighted passages in the documents which assisted their cases. 41 In the present case there were no agreed facts. There were some admissions made by the Minister in a defence to the statement of claim which was filed pursuant to an order made by Emmett J when the matter was before him. The highest that the admissions rose was that there was some information in the Part B documents, as referred to in certain particulars supplied by the applicant's solicitor, which were generally supportive of the applicant's claim for a protection visa. It was therefore incumbent upon the applicant to prove each element of the claim of denial of procedural fairness by supporting evidence. 42 The applicant's evidence did not point to any particular item of information in the Part B documents which would have supported his case and which he would have drawn to the attention of the RRT. 43 Moreover, the fundamental flaw in the applicant's evidence is that it does not establish that he was misled into thinking that the RRT had considered particular relevant information and that he therefore failed to ensure that the information was placed before the RRT. 44 It is clear in my view that the only finding I can make on the evidence before me is that the applicant did not turn his mind to the question of what was meant by the sentences of the letters of 23 March 2001 and 27 June 2001 to which he referred in his affidavit. I make this finding for two reasons. The first is his acknowledgement in his affidavit that he could not recall what he thought was meant by the letters. The second is his evidence in cross-examination which made it plain that he left it entirely up to his migration agent to decide what to do to progress the application. 45 Furthermore, the applicant's frank admission in cross-examination that the first sentence of paragraph 11 of the affidavit was not correct leads to the inevitable conclusion that he has not proved that he relied to his disadvantage on the statements made in the letters from the RRT. Conclusion and Orders 46 It follows that in my opinion the appropriate order is to refuse the application for an order nisi with costs. I will extend the time for filing an application for leave to appeal to 21 days from today's date. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.