The Delegate's Decision
4 In making his decision refusing the prosecutrix's application, the delegate relied on the following documents which throughout this case and other similar cases have been referred to as the "Part B documents":
"1. Departmental file V99/000078 relating to the [prosecutrix].
2. United Nations High Commissioner for Refugees Handbook on Determination of Refugee Status (UNHR Handbook).
3. United States Department of State Country Reports on Human Rights - Indonesia Country Report on Human Rights Practices for 1998.
4. DIMA Country Information Service documents: CX35282; CX30619; CX28436; CX36172; CX36926.
5. Amnesty International - Human Rights Report - Indonesia- March 1998.
6. Human Rights World Report - Indonesia - 1998."
Letters from the Tribunal to the Prosecutrix
5 On 3 November 1999 the prosecutrix lodged an application for review of the delegate's decision with the tribunal. On 4 November 1999, the tribunal wrote to the prosecutrix and advised her:
"… We received your application on 3 November 1999.
The Refugee Review Tribunal reviews decisions made by the Department of Immigration and Multicultural Affairs about protections visas. It is independent of the Department.
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….
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 not send any documents or written arguments which you have already given the Tribunal or the Department about your protection visa application.
…" [emphasis in original]
6 On 4 August 2000, the tribunal again wrote to the prosecutrix, this time advising, inter alia:
"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."
The letter invited the prosecutrix to attend a hearing on 6 September 2000 for the purpose of giving oral evidence and presenting arguments in support of her claims.
The Prosecutrix's Claims
7 The prosecutrix's claims as set out in her visa application, submissions filed by her migration agent and in her oral evidence to the tribunal were to the following effect. I have already mentioned that the prosecutrix lived and worked close to where, in May and November 1998, anti-Chinese race riots occurred. During the May riots she and her daughters remained locked in their house while their street was looted and when she returned to her shop, it had been burnt to the ground. The prosecutrix's daughters are Catholic and the prosecutrix fears they would be subjected to anti-Christian treatment from Muslims. One of her daughters was approached and touched on the breast by a Bajaj driver. Young people often approached her for money; they targeted her because she was Chinese and she was verbally abused. Rather than help, the authorities turned a blind eye.
8 At the hearing, the prosecutrix repeated that when the May riots broke out she and her daughters stayed at home. Her home was on the fourth floor of a building with shops below. From her flat she could see people looting the stores directly below her home. After the riots, beggars would stand at the stoplights and when they turned red, the beggars would come and demand money, steal car parts and take mobile phones. The prosecutrix further discussed the incident involving her daughter. She said that in November 1998 when her eldest daughter was at church, a man grabbed her breast and after that the children did not want to go to church. The prosecutrix has a real fear for her teenage daughters and there is inadequate protection for them in Indonesia.
9 Following the presentation of her case, the tribunal member said to the prosecutrix:
"Tribunal: Okay. Because what I need to do is to think about what you've said in the context of the country information that we have about Indonesia, and I've done some research on the situation of Chinese in Indonesia, and there is a range of information, I guess. Part of this information - perhaps if you could interpret this information as I go along - part of this information certainly - I've got quite a lot of pages. There's about 18 pages or so of information on Indonesia in terms of language, in terms of obtaining some jobs and in terms of being able to pursue cultural activities, Chinese cultural activities. It also talks about, however, the significant change since the resignation of Suharto from Indonesia, and that talks about, for example, the government ratifying the UN Convention Against Racial Discrimination in April 1999.
…
Tribunal: What I'd like to do first is I'll just give you a bit of a summary of some of this country information.
[Prosecutrix]: Yes. Sorry.
Tribunal: Then I'll give you a few minutes to have a look at it, and you can respond then. I think that's probably the most easy way of doing it."
10 The tribunal member proceeded to summarize the information and then adjourned the hearing for forty minutes to enable the prosecutrix to review the material. After the adjournment, the tribunal member asked the prosecutrix if she would like to say anything about the information in particular or anything else about her claims in general. In response, the prosecutrix stated:
"[Prosecutrix]: Yes. I think even the (indistinct) the new presidents have signed everything to protect ethnic Chinese, but who will guarantee 100 per cent that they will not even - or there be no victim for the ethnic Chinese any more, because the country is still touch and go, and especially if there is something happened and something not nice, but the first aim from the riots to target this ethnic Chinese is - I listen to the news on the 9 August TV here. I mean, I is talking to one friend later. He said that this new president is also a corrupter. He can see that because the writer is (indistinct) not Indonesian. He can't be Indonesian writer.
Tribunal: Who was the person who made this comment?
[Prosecutrix]: Amin Rice, yes, on the news on August. He said Suharto take time, about 10 years to make corruptions, but this president is only 10 weeks. How come? If the president has become a corruptor, how we as the people, as Indonesians - and there are so many - there will be so many suffering of hunger, and the target is also Chinese, but Chinese is more have money than Indonesia people there. Chinese have business and everything there."
The Tribunal's Findings
11 The tribunal made the following findings:
(a) the prosecutrix was a truthful person;
(b) she had a subjective fear of return to Indonesia;
(c) while the Chinese Indonesians have long endured discrimination of the type outlined in the country information, what happened in 1998 was of a substantially more serious nature;
(d) the prejudice and discrimination faced by the prosecutrix did not amount to persecution within the meaning of the Refugees Convention;
(e) the prosecutrix has not suffered serious detriment or disadvantage necessary to constitute persecution within the meaning of the Refugees Convention;
(f) the riots of May 1998 were of a serious nature and the prosecutrix was personally touched by them as her shop was destroyed and she witnessed people looting shops in the building where she lived;
(g) at the time of the riots the prosecutrix feared for her and her daughters' safety, however, no harm ultimately came to her or her daughters;
(h) the prosecutrix's account of people looting stores was consistent with the country information that, while there were certainly anti-Chinese sentiments behind some of the riots, they were initiated by very poor people who were venting their frustration on individuals they perceived as well-off;
(i) the November 1998 incident involving the prosecutrix's daughter was a random incident, not likely to happen again;
(j) while it has only been twelve months since the new government has taken power, the outlook for improved racial and religious harmony is more optimistic than it has been for many years;
(k) it cannot be said that there will be no racial or religious conflict directed at Chinese Indonesians in the future or that this violence will always be checked;
(l) the chance of the prosecutrix or her daughters being caught up in such events again is slight;
(m) while Chinese people may be singled out for abuse on the basis of their perceived wealth, as happened to the prosecutrix at a traffic light, such action does not amount to the type of violence that occurred during the May 1998 riots;
(n) no state can ensure the safety of all its citizens against all forms of harm, mistreatment or even death;
(o) there is a only a remote chance that the prosecutrix or her daughters would, because of their Chinese ethnicity or religion, face harm of a type which could amount to persecution within the meaning of the Convention if they were to return to Indonesia and thus the prosecutrix's fear is not well-founded.
The Prosecutrix's Case
12 In her contentions the prosecutrix argued that two letters sent to her by the tribunal, dated 4 November 1999 and 4 August 2000 respectively, misled her into believing that favourable materials that had been before the delegate would be given to, and read by, the tribunal. The prosecutrix contended that the documents were never sent to or read by the tribunal. The prosecutrix further asserted that because she believed that all of the documents had been received and considered by the tribunal, she did not introduce substantial documentary evidence to support her claim that the threat of persecution was ongoing and had not diminished by reason of "regime change". Specifically, she asserted that (1) the information detailed in CX28436 suggested that hostility towards Sino-Indonesians arose out of longstanding historical circumstances and is thus unlikely to evaporate in the immediate future; and (2) document CX28436 clarified that in many cases of violence during the 1998 riots, ethnic Chinese-owned property was singled out for attack. The prosecutrix contended that this information conflicted with the material before the tribunal that suggested that the violence of that time was motivated by economic frustration alone. The prosecutrix also argued that the 1998 Human Rights Watch World Report - Indonesia and East Timor (the "1998 Human Rights Report") conflicted to some extent with material before the tribunal in that it detailed the extent and continuing nature of the volatility of the domestic and political atmosphere in Indonesia.
13 From the draft order nisi and the prosecutrix's first affidavit, it is clear that she seeks relief on two separate grounds which I call, respectively, the "favourable documents" ground and the "adverse material" ground. The prosecutrix's contentions and testimony only addressed the favourable documents ground, however, because both grounds were included in her draft order nisi, I will examine the validity of each.
The First Respondent's Case
14 It is necessary to notice the way in which the Minister defends the case. With respect to the favourable documents ground, the Minister asserts that (1) there was no evidence that would allow the court to draw the inference that the documents had not been received and read by the tribunal; (2) there was no evidence that the documents contained favourable material; (3) there was no evidence regarding what the prosecutrix would have done (e.g., what documents she would have presented) had she been aware that the tribunal had not received the documents in question; and (4) there was no evidence that the prosecutrix relied on the letters from the tribunal or that she had been misled.
15 Regarding the adverse materials ground, the Minister argues that the obligation to provide an opportunity to comment on adverse material pertained only to "critical information", as opposed to information of the sort in question. She further contends that the tribunal was under no obligation to supply country information of the sort they relied upon as it fell within the exception provided for by s 424A(3)(a) of the Act. The Minister also stresses that the prosecutrix failed to identify the adverse material in question. In addition, she argued that at the hearing the tribunal gave the prosecutrix an adequate chance to review and respond to the adverse material upon which it relied.
16 Finally, the Minister argues that even if there was a breach of procedural fairness, relief should be refused on the basis that even if the prosecutrix had been provided with all of the documents, there is no evidence that she would have conducted her case before the tribunal any differently or that it would have affected the outcome of her application.
The Law
Favourable Documents
17 The law with respect to the prosecutrix's favourable documents case is established in Muin v Refugee Review Tribunal ("Muin"). In NADZ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 118 ("NADZ"), Hely J succinctly summarized the effect of Muin at [14]-[15]:
"As the Full Court made plain in NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 293 at para[24] Muin does not establish that the sending of letters in terms of the letter of 12 August 2002 would amount to a denial of procedural fairness in circumstances where the RRT has not referred to the PtB documents in its later decision. Rather, Muin holds that there is a want of procedural fairness where an applicant before the RRT is misled into thinking that the RRT has considered particular relevant information favourable to the applicant, and as a result, the applicant does not ensure that such information is placed before the RRT, or drawn to its attention. The later decision of the High Court in Re Minister for Immigration & Multicultural Affairs; ex parte Lam (2003) HCA 6, confirms that applicant in a case such as the present must show that he relied to his disadvantage upon communications from the RRT before there is any question of a want of procedural fairness.
The elements of the procedural fairness claim in Muin were:
(a) the RRT told the plaintiff that it had asked the Secretary to send a copy of the plaintiff's documents and when they were received, it would look at them along with other evidence on the RRT's file to determine whether it could make a favourable decision;
(b) the RRT informed the plaintiff that it had looked at the material relating to the application;
(c) the plaintiff believed that the RRT had received the PtB documents;
(d) some of the PtB documents were favourable to the plaintiff;
(e) the PtB documents had not been considered by the RRT Member;
(f) the plaintiff had been misled into believing that it was unnecessary for him to draw the favourable information in the PtB documents to the attention of the RRT; and
(g) if the plaintiff had not been misled he would have taken steps to correct the situation, and would have tendered additional evidence in support of his position, including decisions favourable to applicants in analogous situations."
18 The cases post-Muin have applied its principles strictly. NADZ supra was a case very similar to the one at bar in which a Bangladesh citizen challenged a decision of the tribunal which denied him a protection visa. No facts were agreed as they had been in Muin. So the applicant had to establish each and every element of his case including the main point in issue, namely that the tribunal had not been provided with the favourable documents. In NADZ, the tribunal had referred to two of the eight Part B documents in its reasons for decision. It was also apparent from the tribunal's reasons that it had other documents before it, including at least some of the Part B documents. On this evidence, Hely J found at [17] that it had not been established that the Part B documents had not been considered by the tribunal. He also commented that no evidence was presented that the applicant was in any way misled by the communications from the tribunal and that, as a result, no facts established that there was a want of procedural fairness. See also Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 214 CLR 1 ("Ex parte Lam") (holding that the there was no denial of procedural fairness where the applicant had not relied to his disadvantage on the representation in question).
19 It is worthwhile noting that in NADR v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 465 ("NADR"), referred to by Hely J in NADZ, the Full Court was also unwilling to draw the inference that certain Part B documents had not been received by the tribunal simply from the fact that some of those documents had not been referred to in the tribunal's decision. In NADR, the tribunal had referred to one Part B document in its decision. Kiefel J, after noting as well that the appellant had received several letters from the tribunal in relation to the documents it intended to consider, stated that it was not possible to conclude that the tribunal did not receive as evidence the documents in question because it did not list them in its reasons. She hypothesized that the tribunal may have preferred to rely on other information as probably a more relevant or up-to-date account of events. Kiefel J also found that the appellant failed to establish that he would have tendered additional evidence in support of his position. Specifically, she stated at [26]:
"It cannot be assumed that the appellant here would have taken any particular course had he known that the Tribunal had not been provided with the documents, or did not intend to refer to them. It was not explained to the Court how that might be concluded by reference to the contents of the Part B documents."
20 S 194 of 2002 v Refugee Review Tribunal [2003] FCA 615 ("S 194") was a case similar to the present. At issue was, inter alia, whether the tribunal had received and considered the favourable document in question notwithstanding the fact that it was not referred to in its reasons. The court held that because the document was so "obviously material" to the applicant's case, it could infer from the fact that it was omitted from the tribunal's decision that the tribunal did not receive and consider the document. In addition, the applicant had sworn an affidavit which listed the steps he would have taken to overcome the absence of the document that was not provided to the tribunal. He explained that he would have (1) sought production of the document; (2) arranged to have a migration agent or solicitor act for him to make submissions as to how the document assisted his case; (3) sought to bring before the tribunal additional evidence to the effect that it was unsafe for him to return to his country of origin; and (4) undertaken research and submitted information or documents which were favourable to Hindu priests such as a decision of the tribunal in another application which was specified in the affidavit. Based on these facts, the court held that the rules of procedural fairness had been breached.
Adverse Materials
21 It is well established that in order to succeed on an adverse materials claim, the applicant must establish (1) that the material relied upon by the tribunal and not provided to him was adverse to his case; and (2) that he would have conducted his case differently had he been aware of the adverse material in question. On the other hand, speaking generally, as long as the applicant was informed of and allowed to respond to the adverse information at some point prior to the tribunal's decision, even if not until the tribunal hearing, no breach of procedural fairness will be found.
22 Muin also involved an adverse materials claim. In Muin, it was agreed that, had the plaintiff been made aware of the substance of the adverse material, he would have taken certain steps, which he failed to take, in an attempt to counter the effect of the adverse material. For this reason he succeeded in his challenge to the tribunal's decision. On the other hand, in M115/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1448, a case not involving any agreed facts, Marshall J denied relief to an applicant because he failed to state what he would have said to the tribunal or what he would have done if he had been shown the adverse material. Likewise in SBBS v Minister for Immigration and Multicultural Affairs (2002) 194 ALR 749 ("SBBS") the Full Court refused to set aside a tribunal's decision in part because the appellant could not point to any specific evidence that he may have supplied to the tribunal to answer the adverse evidence.
23 A different result was reached in S 194 supra. There the court found that there was helpful evidence which the applicant or his advisers could have submitted to the tribunal had they known that the document would be applied unfavourably to the claim.
Evidence at Trial
24 The prosecutrix was cross-examined on the question whether she believed that the tribunal had received and read the documents relevant to her case. She first testified that at the time she received the first letter from the tribunal she believed that it had before it or had access to all of the documents relevant to her case. Later, however, she said that prior to the tribunal's decision she had no belief one way or the other as to whether or not the tribunal had read or received the documents relating to her case.
25 Relevant to the question whether the prosecutrix was misled, the prosecutrix stated that until the tribunal gave its decision, she had no belief one way or the other as to whether or not the tribunal had read or received the documents. Further, when asked what information or evidence she would have put to the tribunal if she had known that it did not have before it all of the documents, she said, "I'm not saying that I did not have a chance to forward my evidence. . . ." She also asserted that the forty minutes given to her to review the documents relied upon by the tribunal was inadequate because of her English skills.
Conclusion
26 Regarding the favourable documents claim, it is common ground between the parties that the tribunal told the prosecutrix that it had asked the Secretary to provide a copy of the prosecutrix's documents and that it had looked at all the material relating to her application. Under the circumstances, in order for the prosecutrix to establish a breach of procedural fairness, the evidence must reveal that: (1) she believed that the tribunal had received the Part B documents; (2) the Part B documents were favourable to her case; (3) the Part B documents had not been considered by the tribunal; (4) she was misled into believing that it was unnecessary for her to draw the favourable information in the Part B documents to the attention of the tribunal; and (5) if she had not been misled she would have taken steps to correct the situation, and would have tendered additional evidence in support of her position, including decisions favourable to applicants in analogous situations. Assuming, without deciding, that the prosecutrix has satisfied the first two criteria, she has failed to meet the last three.
27 First, I am unwilling to infer that all the Part B documents had not been considered by the tribunal. In the first place, the following Part B documents were referred to by name in the tribunal's decision: the United States Department of State Country Reports on Human Rights - Indonesia Country Report on Human Rights Practices for 1998 and DIMA Country Information service documents CX35282, CX30169 and CX36172. It is also apparent from the tribunal hearing transcript that the tribunal had considered other Part B documents. CX36926 was referred to as well as the contents of CX28436 and the Amnesty International Report. This leaves the Human Rights World Report as the only document which may not have been received. I am not prepared to assume that the tribunal did not receive this document.
28 Second, I do not accept that the letters sent to the prosecutrix from the tribunal misled her in any relevant sense. I believe the prosecutrix was being truthful when she testified that prior to the tribunal's decision she had not formed a belief one way or the other regarding whether the tribunal had received and read the documents relevant to her case. As a result, it cannot be said that the prosecutrix relied to her disadvantage upon the tribunal's representations or that she missed an opportunity to draw favourable information to the tribunal's attention. See NADZ; Ex parte Lam.
29 Third, the prosecutrix presented no evidence regarding the steps she would have taken had she known the tribunal had not received the Part B documents. See NADR; compare S 194.
30 Turning to the prosecutrix's adverse materials case, here again the prosecutrix cannot succeed. She was provided with these documents at the hearing and given an opportunity to read them. The prosecutrix stated that the forty minute break was not enough time for her to review the material, given her English skills. The evidence is, however, that the prosecutrix can read and understand English. In my view, the documents were in plain English terms, and forty minutes was ample time to review the material. The fact that the tribunal member summarized the information before giving it to the prosecutrix gives me additional comfort in finding that the prosecutrix had an adequate opportunity to deal with the material. It is also important to note that following the forty minute break, the prosecutrix did not ask for additional time to review the material nor did she state to the tribunal that she had insufficient time for review. Rather, when the hearing resumed, the prosecutrix responded straightaway to the information.
Result
31 In these circumstances, the prosecutrix has not established that the tribunal erred in any respect and her application for the issue of constitutional writs must be dismissed.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.