NANJ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT INTRODUCTION 1 This is an application for review of a decision of the Refugee Review Tribunal ("the RRT") given on 28 June 2002 affirming a decision of a delegate of the Minister not to grant the applicant a protection visa. The application does not specify the statutory provisions under which the review is sought. However, it is accepted that the applicant seeks review under the provisions of Part 8 of the Migration Act 1958 ("the Act") and under s 39B of the Judiciary Act 1903. 2 The application is governed by the amendments to the Act, which came into effect on 2 October 2001. Accordingly, the decision under review is a privative clause decision as defined in s 474 of the Act. Judicial review is therefore available only to the extent to which the Court's jurisdiction is not excluded by the privative clause. The Applicant's Claims 3 The applicant is a citizen of Indonesia. He came to Australia in December 1994 on a tourist visa and remained here until he was removed by the authorities in February 2002. He returned to Australia on 15 April 2002 and applied for a protection visa on 26 April 2002. 4 The applicant was represented by a firm of solicitors in his application for a protection visa. He claimed that he had a well-founded fear of persecution in Indonesia on three grounds. The grounds were set forth in a letter from the applicant's solicitors to the Department dated 24 April 2002 and in a statement made by the applicant on 23 April 2002 in Indonesian with an English translation. 5 The first ground relied upon was that the applicant claimed that he and his mother had been involved in running an "arisan", or social lending cooperative, in the city of Surabaya during 1993. The arisan collected a large amount of money but the funds were said to have been misappropriated by other persons involved in the enterprise. However, the applicant and his mother were said to have been wrongly blamed for the losses and his mother was imprisoned in Indonesia in 1994. The applicant claimed that if he returned to Indonesia, his life would be threatened by the authorities and by creditors of the arisan. 6 By letter dated 2 May 2002, the delegate invited the applicant to comment on a number of matters which the delegate wished to take into account in deciding whether to issue a protection visa. The fourth bullet point on page 2 of the letter indicates that the delegate was of the preliminary view that the applicant faced no more than an ordinary criminal investigation and possible prosecution arising out of his involvement with the arisan. 7 The solicitors responded to this in a letter to the Department dated 3 May 2002 as follows: "[The applicant] also instructs that his mother was persecuted and imprisoned without a valid reason. [The applicant] says that she was unable to buy justice. [The applicant] added that given the experienced [sic] suffered by his mother and himself his problems are not with the criminal justice system but with the corrupt system that prevails in Indonesia. [The applicant] submits that the he did not leave Indonesia attempting to escape punishment rather he asserts that he left to avoid persecution." (emphasis added) 8 The applicant expanded on this claim in oral evidence which he gave to the RRT on 27 June 2002. This was recorded in the decision of the RRT as follows:- "When asked how many creditors are still pursuing him after eight years, he said there were about five. He claims that police also come to his aunt's house, looking for the applicant. In answer to the Tribunal's question, he stated that he has no knowledge of any warrants ever being left for him, or any other documents indicating that he was being officially sought in relation to the collapse of the credit union. When the Tribunal put it to him that the police had no interest in him, he said that the creditors pay the police to come around. He said it was possible in Indonesia to pay police to undertake certain actions." (emphasis added) 9 The second ground on which the applicant claimed that he feared persecution was that he had left Indonesia illegally by obtaining a passport in a false name. He claimed that he would face harm at the hands of the police and the military because of his irregular departure and feared that his situation was further compromised because the Australian authorities alerted the Indonesian authorities to the applicant's arrival in Australia under false documents. 10 The third ground on which the applicant claimed that he feared persecution was that he is an ethnic Chinese and a Roman Catholic. He submitted country information to support his claim that ethnic Chinese non-Muslims are subject to persecution. The country information also referred to the issue of corruption in the Indonesian authorities. 11 The Minister's delegate rejected the application for a protection visa on 10 May 2002. On the same day, the applicant applied to the RRT for a review of the delegate's decision. 12 The application for review was forwarded to the AAT under cover of a letter dated 10 May 2002 from the applicant's solicitors. 13 The letter contained the following submission:- "We note that the delegate also dismisses, without providing reasons, the main concern expressed by [the applicant], namely that the corruption of the criminal justice system in Indonesia is so rampant that he would be subjected to persecution merely because he is unable to buy justice. In this respect, we are instructed that he will be subjected to risk because of the reasons that forced his departure in 1994 but he will also be persecuted because he procured false documents to facilitate his escape in February this year." (emphasis added) 14 The letter also contained a submission as follows:- "In respect of the conclusion that the applicant is not at risk, if he is returned, notwithstanding his Chinese ethnicity and Christian religious affiliations, we are instructed that the delegate failed to consider the changing nature of the political and religious spectrum in Indonesia as a result of the events of 11 September 2002 [sic]. We are instructed that these events have resulted in a resurgence to prominence of extremist religious groups as well as renewed targeting of ethnic Chinese. It is submitted that the material relied upon by the delegate in reaching his conclusions is clearly outdated and therefore unreliable." (emphasis added) 15 I referred in paragraph [8] to the applicant's oral evidence before the RRT on 27 June 2002. When he was invited to appear at the oral hearing, the applicant responded to the invitation stating, inter alia, that he nominated a witness to give evidence before the RRT. He stated that the witness would give evidence that:- "Policemen and military have been come to my house in Surabaya City [and Indonesia country]." The decision of the RRT 16 The RRT stated that it had before it the Department's file which included the protection visa application. Although it did not say so expressly, it follows that the RRT had the letters from the applicant's solicitors dated 24 April 2002 and 3 May 2002 referred to in paragraphs [4] and [7] above. 17 The RRT accepted that there may be creditors of the arisan who bear grudges against the applicant because of his involvement with the arisan. However, the RRT considered that any harm which the applicant may suffer at the hands of creditors would not be for a Convention reason. In any event, the RRT considered that the applicant has the option of relocating himself to another part of Indonesia as he had done without any difficulty in the latter part of 1994. 18 The RRT rejected the applicant's claim that the Indonesian authorities are still pursuing him in relation to the collapse of the arisan. Moreover, the RRT noted that even if the State is still pursuing him with regard to this matter, any such pursuit would be characterised as "prosecution rather than persecution". 19 As to the applicant's second claim, the RRT also found that any problems, which the applicant may face when he returns to Indonesia under a false passport, could not amount to a fear of persecution for a Convention reason. The RRT stated that if the applicant has broken Indonesian law, the consequences are a matter for the Indonesian legal system. 20 As to the third claim, namely fear of persecution on the ground that the applicant is an ethnic Chinese Roman Catholic, the Tribunal stated:- "Although the applicant's advisers had originally submitted country information about the status of Chinese and/or Christian Indonesians, the applicant did not attempt to pursue (either orally or in writing) any claims about ethnicity or religion." 21 It is plain that this remark is incorrect. The applicant did attempt to pursue the claim about his ethnicity and religion in the paragraph of the letter written by his solicitors on 10 May 2002 as set out in paragraph [14] above. 22 The RRT summed up its findings and reasons in the following passage:- "In short, the Tribunal is not satisfied that harm amounting to persecution has befallen the applicant in the past for a Convention reason. The chance that such harm will befall him in the reasonably foreseeable future is remote. It follows that the Tribunal is not satisfied that the applicant has a well founded fear of persecution for a Convention reason. He is not a refugee." 23 The RRT then set out its conclusion as follows: "Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s 36(2) of the Act for a protection visa." Issues arising under the application for judicial review 24 The application sets out three grounds for review. They are as follows:- (a) The RRT made a reviewable error because the RRT said that it could not grant the applicant a refugee visa "because of human right". (b) The RRT did not believe that the applicant told it that the Indonesian authorities are corrupt and arrest people without a warrant or any evidence in order to obtain moneys from them. (c) The RRT did not permit the applicant to call a witness from Indonesia who had been nominated by the applicant. Ground 1 - "human right" 25 It is clear that interference with human rights does not of itself amount to persecution as defined in the Convention; Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1 at [6] per Gleeson CJ, [65] per McHugh J, [139-143] per Gummow J, [181] per Kirby J. 26 Although the other Justices did not say so expressly, it is implicit in what they said about the need to have regard to the Convention's definition of persecution that they were of the same view; [14-18] per Gaudron J, [203] and [205] per Hayne J, [225-226] per Callinan J. 27 In any event, there is nothing in the reasons given by the RRT to suggest that the RRT was of the view that it could not grant the applicant a protection visa on the ground his human rights had been denied. 28 The applicant did not address me on the question of whether he relies upon his race or religion as a ground of appeal. However, in view of the fact that he did pursue it in his written submissions to the RRT, it seems to me that I should consider it on his application for judicial review. 29 There was no specific ground of appeal, which raised this issue. Nevertheless, in my opinion, ground 1 is sufficiently wide to accommodate it. 30 The first question which arises is whether the RRT made an error of fact or a jurisdictional error of the type usually referred to as a "Craig type" jurisdictional error; Craig v The State of South Australia (1995) 184 CLR 163 at 179. It is necessary to answer this question before considering whether s 474 expresses a contrary intention so as to immunise the decision of the RRT from review. 31 If the RRT failed to consider the applicant's contention that he had a well-founded fear of persecution on the ground of race or religion, this would have amounted to a jurisdictional error. This is because the RRT would have failed to ask itself the correct question or to have understood the applicant's claim. 32 In my opinion, the RRT's decision does not make it clear whether the RRT considered this claim. The RRT stated that it had before it the Department's file. It was aware that the issue had been pursued before the delegate. It stated in a passage quoted in paragraph [23] that it had considered the whole of the evidence. This might suggest that the RRT did consider the claim. 33 However, if the RRT did consider the claim, I do not see why it was necessary to record, incorrectly, that the applicant did not attempt to pursue it. In my view, the better approach to the RRT's decision is that the error rose above an error of fact because the RRT failed to consider the claim based on race or religion. 34 The question, which then arises, is whether curial review is excluded by the privative clause contained in s 474(1) of the Act. The answer to this question turns upon the reasoning of the five member bench of the Full Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 ("NAAV"). 35 The same question was dealt with very recently by Sackville J in Zahid v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1108 ("Zahid"). His Honour noted at [28] that the High Court has reserved judgment in proceedings in which the same issue was raised; Re Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte Applicants S134/2002 (judgment reserved 4 September 2002). 36 In Zahid, Sackville J set out a comprehensive analysis of the five judgments in NAAV. His Honour concluded at [84]:- "In these circumstances there is a clear majority view in NAAV v Minister that s 474(1) protects a decision from invalidity, where the allege invalidity flows from a failure on the part of the decision maker to ask the correct question. Provided that the `jurisdictional factors' or inviolable limitations are not infringed and the three Hickman provisos are satisfied, s 474(1) expands the authority and powers of the decision maker to render the decision lawful, notwithstanding that the failure to ask the correct question would otherwise have constituted jurisdictional error." 37 I agree with the conclusion reached by his Honour in Zahid that there is a majority view in NAAV in the terms set out in the passage quoted above. I also agree with the view reached by his Honour at [85] that the appropriate course is to follow the reasoning of the majority in NAAV unless and until a different view is taken by the High Court. There is no suggestion in the present case that the three Hickman provisos have not been satisfied. 38 The decision of Tamberlin J in SBBK v Minister for Immigration and Multicultural Affairs [2002] FCA 265 ("SBBK") is authority for the proposition that failure to identify the correct question constitutes jurisdictional error, which is not protected by s 474(1) of the Act. However, the effect of the majority view in NAAV is that SBBK should not be followed unless or until the High Court takes a different view. 39 Accordingly, even if the RRT failed to address the applicant's claim that he had a well-founded fear on the ground of race or religion, the decision of the RRT falls within the expanded area of authority and powers brought about by s 474(1) of the Act; see NAAV at [639] per von Doussa J. Ground 2 - Police Corruption 40 When the applicant's contentions as set out in the extract from the letters dated 3 May 2002 and 10 May 2002 appearing in paragraphs [7] and [13] are read together, it seems to me that the applicant was not advancing a separate contention that he feared persecution by corrupt police per se. Rather, the applicant's contention was that he feared persecution by reason of creditors of the arisan bribing Indonesian officials to arrest and harm him. That is how the RRT understood the claim as set out in the passage at paragraph [8] above. 41 In my view, the RRT considered and dealt with the claim put in this way. The effect of the passage from the RRT's judgment set out at paragraph [8] above, is that the applicant may be prosecuted in Indonesia but this will be procured by creditors of the arisan because of their grudges. As stated in [17], the RRT concluded that any fear held by the applicant was not Convention related and, in any event, the applicant had the option of relocation. I see no reviewable error in this reasoning. 42 Even if the applicant's claim was that he feared persecution because of political corruption separately from the claim relating to the arisan, in my opinion the privative clause deprives the Court of jurisdiction to review the RRT's decision. This follows from the majority view in NAAV as set forth in paragraph [84] of Sackville J's judgment in Zahid. Ground 3 - Failure to call witness 43 Section 426(2) of the Act provides that an applicant may, within 7 days after being given an invitation to appear at a hearing, give to the RRT written notice that the applicant wishes the RRT to obtain oral evidence from a nominated person. 44 Section 426(3) of the Act provides that if the RRT is notified by an applicant under subsection (2), the RRT must have regard to the wishes of the applicant but is not required to obtain evidence from the nominated person. 45 The invitation to attend the hearing was sent by facsimile from the RRT to the applicant on 6 June 2002. The effect of s 441C(5) of the Act is that the invitation is taken to have been received by the applicant at the end of the day on 6 June 2002. In order to be effective under s 426(2) of the Act, the applicant's notice was to be given by the end of the day on 13 June 2002. 46 The applicant's migration agent responded to the RRT's invitation on 6 June 2002. The response was therefore sent within the time limited by s 426(2) of the Act. However, in answer to the question of whether the applicant wanted the Tribunal to take oral evidence from any person, the agent answered that he did not know. Thus, the request did not conform with s 426(2) because it did not provide the name of the proposed witness. 47 The applicant sent a separate facsimile to the RRT in which he named a person who would give evidence that policemen and military had been to his house; see [15] above. The document is signed by the applicant and bears the date 6 June 2002. However, it has a facsimile imprint, which indicates that it was transmitted by ACM Operations ("ACM") on 21 June 2002. 48 The Minister asks me to make a finding that the facsimile was sent to the RRT on 21 June 2002. If I accept that submission, it would follow that the notice was sent out of time. In order to deal with this, it would be necessary for me to decide whether the facsimile was delivered by the applicant to ACM as agent for the RRT on or before 13 June 2002. The question, which then arises, is whether ACM was the agent of the RRT for the purpose of receiving the notice. ACM runs the detention centre as agent for the Minister or as agent for the Commonwealth. However, the question of whether the RRT has a separate legal personality from either the Minister or the Commonwealth turns upon the provisions of Part 7, Division 9 of the Act. 49 I do not need to decide this question because there is evidence that the RRT member did consider the applicant's request. The evidence is contained in file notes made by members of staff of the RRT on 21, 24 and 25 June 2002. The effect of the file notes is that the member who dealt with the application stated that the hearing would go ahead without the witness from Indonesia but that when the hearing was over, she would decide whether she needed to take evidence from the witness. The file note of 24 June records that a staff member rang the applicant's migration agent and left a message to that effect. The file note of 25 June 2002 records that the agent rang the RRT and said that he would inform the applicant of this. Whether or not the agent did so is irrelevant to the question, which I have to decide because the evidence clearly establishes that the RRT gave consideration as to whether or not it should accede to the applicant's request. This is all that s 426(3) of the Act requires. 50 The applicant referred to the decision of the Full Court in W360/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 211. That case is not authority for the proposition that a failure to call a named witness amounts to a jurisdictional error. Their Honours Lee and Finkelstein JJ decided, on the facts of the case, that a decision not to hear from a witness showed that the RRT had not asked itself the correct question for the purpose of carrying out its review. 51 There is nothing in the facts of this case to suggest that the failure of the RRT to hear from the witness indicated a failure to understand its task in carrying out the review. 52 Even if the RRT did ask itself the wrong question, for the reasons given by the majority of the Full Court in NAAV, the RRT's decision is protected from judicial review by s 474(1) of the Act. Conclusion 53 It follows from what I have said above that the order I propose to make is that the application be dismissed. Subject to hearing from the Minister, I will not make the usual order that costs follow the event. This is because, in my opinion, the matter was adjourned to 11 September 2002 as a result of the failure of the Minister to deliver his written submissions to the applicant in sufficient time for the applicant to consider them and have them translated. The submissions were delivered on the first morning of the hearing. In my view, it is appropriate that there be no order as to costs. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.