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

the decision of the tribunal 12 On 13 June 2002, the Tribunal made a decision to affirm the decision of the delegate not to grant the appellant a protection visa. The Tribunal held that for the appellant to fear persecution for a Convention reason due to her relationship with her husband, her husband must have experienced persecution for a Convention reason. The Tribunal found that his prosecution and imprisonment was not persecution for a Convention reason: 13 The Tribunal found that the appellant's husband's and the appellant's status as former close associates of former President Suharto did not found a fear of persecution for a Convention reason. The Tribunal further found that the evidence in relation to the current political situation in Indonesia did not indicate that opponents of the current government faced persecution. 14 The Tribunal concluded that the appellant was not a person to whom Australia owed protection obligations under the Refugees Convention and therefore affirmed the decision of the delegate to refuse the appellant a protection visa. 15 Under the heading "the applicant's claims" at pages 8-9 of the Tribunal's reasons for decision, the Tribunal noted that: "A letter of 30 March 2001 enclosed a newspaper article which reported that, after the tripling of the prison term which followed an appeal against the initial sentence, [the appellant's husband] had been transferred to a notorious prison. It is submitted that the transfer is politically motivated." 16 At page 9 of its reasons the Tribunal referred to the appellant's September 2001 submissions and noted that it was there submitted: "… that aspects of [the appellant's husband's] detention were unlawful, particularly his transfer to the harsh prison." 17 At page 9 of the Tribunal's reasons, it recorded that the appellant said at the hearing that: "…she would be treated unfairly once in custody; and that … this would happen in large part because she would be thought to know about her husband's financial dealings to a degree which she does not." [Emphasis added.] 18 At pages 10-11 the Tribunal referred to the applicant's 14 March 2002 submissions which included a claim that the appellant's husband: "… has been poorly treated in prison … [and] has been singled out because of his membership of a particular social group." 19 The Tribunal found that the appellant's husband was a member of a particular social group of former close associates of former President Suharto. However, it found that his membership of that group was not: "… the essential and significant reason for his prosecution and imprisonment." 20 The Tribunal found that if the appellant was investigated and charged on return to Indonesia, there would not be a real chance that she would be harmed "in the course of the investigation". It found that membership of a particular social group would not be a reason for any prosecution "which may be initiated against her." It further considered that any unfairness in legal proceedings which might be brought against her would not be unfair for a Convention reason. 21 The Tribunal concluded by stating that the appellant's relationship to her husband would not lead her to face persecution in a Convention sense, when her husband has not experienced such persecution.

review to the federal magistrates Court 22 On 31 July 2002 the appellant applied to the Court pursuant to s 39B of the Judiciary Act in relation to the decision of the Tribunal. On 16 September 2002, the matter was transferred to the Federal Magistrates Court. 23 The application for review contained two grounds of review, which may be summarised as follows. First, that the decision of the Tribunal was affected by jurisdictional error in that a) it failed to consider the appellant's claims of "fresh harassment, threats and intimidation against members of her family"; and b) it misinterpreted and/or misunderstood the test of well-founded fear of persecution and/or the application of the real chance test. Second, or in the alternative, it was contended that the Tribunal erred in asking itself the wrong question, identifying the wrong issues or ignoring relevant material in its consideration of the appellant's claim to fear persecution on the grounds of actual or imputed political opinion, race or membership of a particular social group. 24 Before the Federal Magistrate, the grounds citing the appellant's claims of harassment, threats and intimidation against members of her family were abandoned by the appellant. 25 The appellant submitted before the Federal Magistrate that the Tribunal had misunderstood the test of persecution for a Convention reason and had thus misunderstood the nature of the opinion it was required to form. Further, the appellant argued that the Tribunal had failed to consider an issue central to the appellant's claim, essentially whether the appellant was a member of a particular social group in order to determine whether the appellant would suffer persecution by reason of her membership of that social group. Third, the appellant submitted that the finding that the essential and significant reason for the appellant's husband's prosecution and imprisonment was not his membership of a particular social group was flawed. Finally, the appellant submitted that the Tribunal failed to appreciate that the possibility of unfairness in any trial to which the appellant might be subjected could be persecutory of her and affect her for a Convention reason. 26 The Federal Magistrate heard the application for review on 9 April 2003 and delivered reasons for her decision on 6 June 2003. The Federal Magistrate found that the Tribunal "clearly considered whether the [appellant] was a member of a particular social group" and whether her being liable to prosecution as a result of her membership of that group could amount to persecution for a Convention reason. 27 The Federal Magistrate noted that the Tribunal found as a matter of fact that the treatment of the appellant's husband was the result of the operation of law enforcement and was independent of his membership of any particular social group. The Federal Magistrate held that there was no error in the Tribunal's decision. 28 The Federal Magistrate (at [15]) acknowledged that the appellant put her claims: "… on the basis that [her husband] faces a real chance of being disproportionately punished on political grounds and exposed to excessive or arbitrary punishment whilst undergoing a six-year sentence for crimes, which it was submitted, were the result of a selective prosecution to which he was subjected as a scapegoat for the excesses of the Suharto regime." 29 At [26] the Federal Magistrate acknowledged that "in submissions and oral testimony" the appellant claimed before the Tribunal that her husband's "transfer to a notorious prison was politically motivated." 30 The Federal Magistrate observed at [29] to [34] that the Tribunal found: · that the charging and sentencing of the appellant's husband were not for a Convention reason; · that any charges the appellant may face would not be for a Convention reason; · advice from the Department of Foreign Affairs and Trade in November 2000 did not assist the appellant's case; · any proceedings against the appellant would not be unfair because of a Convention reason; · any intervention by the government in judicial proceedings against the appellant would be as a result of a desire to deter corrupt activities. 31 At [39] the Federal Magistrate said: "The Tribunal is required to consider the elements of each of the claims made by the [appellant] and has done so in lengthy reasons." 32 At [43] the Federal Magistrate recorded a submission made by the appellant that: "… the Tribunal did not address the issue of the conditions under which the [appellant's] husband was held and in failing to do so did not appreciate that these could be persecutorily imposed for Convention reasons." 33 At [49] the Federal Magistrate said that: "As findings of fact and being matters for it to determine, the Tribunal found no selective enforcement and no excessive punishment." 34 The Federal Magistrate did not illustrate how the Tribunal had found no excessive punishment in the context of the appellant's husband's transfer to and treatment in a notorious prison. Whilst the Court agrees that the Tribunal's reasons for decision are lengthy, it does not agree that those reasons consider the elements of all claims made by the appellant. It considered all but one, as is illustrated below.

consideration 35 A clearly identifiable and articulated claim was made to the Tribunal by the appellant that she had a well-founded fear of persecution on account of her membership of a particular social group because her husband was exposed to excessive or arbitrary punishment whilst undergoing his prison sentence on a particularly notorious prison island to which he was transferred because of his membership of the same particular social group. 36 The Tribunal did not deal with that claim. It dealt with other claims made by the appellant which were referable to the charging, detention, trial and sentence of the appellant's husband but not with the claims referred to in the preceding paragraph. 37 I reject the contention of counsel for the Minister made in her written contentions and confirmed orally, that "the treatment in prison cannot be separated from the arrest, detention, prosecution and trial as without these, there would be no possibility for imposition of a punishment." As counsel conceded, a person may be arrested, detained, prosecuted and tried without reference to any Convention based reason, but whilst in prison may experience persecution for a Convention based reason. That possibility was simply not explored by the Tribunal in this case although a claim was made for it to explore, as is evidenced from the matters referred to at [15]-[18] above. 38 I reject the alternative submission of the Minister that the issue of the appellant's husband's treatment in prison was not an integer of the review application but merely an aspect of the evidence. It was a separate, discrete claim that required consideration. The failure of the Tribunal to consider the claim meant that: "… the Tribunal misunderstood the nature of the claims being advanced [in their totality] and consequently failed to consider [an] essential [aspect] of the claims actually made." See SDAV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 129 at [44], (2003) 199 ALR 43 at 54. 39 A failure of the Tribunal to decide a matter put to it will result in the Tribunal making a jurisdictional error: see Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 26, at [27] - [34] per Gummow and Callinan JJ; (2003) 197 ALR 389, at 394 - 396. It is not necessary for the Tribunal to refer to every piece of evidence before it in its written reasons. However, if the Tribunal failed to consider a contention which, if accepted, would justify a conclusion that the applicant has a well-founded fear of persecution for a Convention reason, and if that contention is supported by probative material, the Tribunal will have failed to discharge the duty imposed by s 414 of the Migration Act to review the decision of the delegate of the Minister: see Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at [45]-[46]. This is precisely what occurred in this matter for the reasons set out above at [35] to [37]. 40 The second alternative submission of the Minister that the claim was not clearly articulated is also rejected. As indicated at [35] above, I consider the appellant's claim, which the Tribunal did not address, to have been clearly articulated. In short, the claim was that the appellant's husband faced adverse treatment in prison because of a Convention based reason and was transferred to the particular prison where such adverse treatment would occur because of a Convention based reason. Accordingly, the appellant was entitled to contend that if that claim was accepted, she similarly might face adverse treatment in prison if charged, prosecuted, tried and convicted, if returned to Indonesia, and similarly might expect to be sent to the notorious prison island. 41 For the above reasons, I consider that the appellant's appeal should be allowed, the decision of the tribunal set aside and her application for review of the delegate's decision be remitted to the Tribunal. The appellant is entitled to costs of the appeal and of the application to the Federal Magistrates Court. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate: Dated: 19 December 2003 Counsel for the Applicant: Mr John A Gibson

Solicitor for the Applicant: Trumble Szanto Lawyers

Solicitor for the Respondent: Blake Dawson Waldron