VNAA v Minister for Immigration & Multicultural & Indigenous Affairs

· they should send any new documents or written evidence to the Tribunal as early as possible

· they must advise the Tribunal of any change in their home address or mailing address, and if they did not, their case may be decided in their absence.

4 On 10 October 2002 the Tribunal sent by registered post to the appellants at their mailing address and residential address "23 Wentworth St Auburn NSW 2144" a letter stating that on the material before it the Tribunal was unable to make a decision in their favour, and inviting them to come to a hearing to give oral evidence and present arguments in support of their claims. Details of the time and place of the hearing were given. The letter sent to the residential address was returned marked "Return to Sender" and "no such address". The appellants claimed that they did not receive either letter. There is no evidence indicating by whom the letter to the mailing address was received. 5 The appellants did not attend the Tribunal hearing, and the Tribunal decided to affirm the delegate's decision. A copy of its reasons for decision was posted to the mailing address. In its reasons the Tribunal noted that the 10 October 2002 letter had been sent to the most recent addresses on file, that the appellants had not appeared, and that pursuant to s 426A of the Act the Tribunal had decided the application without taking any further action to enable them to appear before it. 6 In the remainder of its reasons, the Tribunal referred to the male appellant as "the applicant". It said he was of Chinese ethnic background and a Christian. It recorded his claims that in May 1998 he was tortured and his shop burned down because he is Chinese, noted the lack of particulars in his torture and other claims, and referred to country information indicating that ethnic Chinese, including those adhering to the Christian religion, were no longer generally at risk of persecution in Indonesia. It said: "The Tribunal has not been satisfied that the applicant has suffered harm amounting to persecution in the past. It is required to consider whether there is a real chance that he will be persecuted if he returns to Indonesia in the foreseeable future. The independent information quoted at pages 5‑10 above indicates that people of Chinese ethnic background are unlikely to be at risk of serious harm under the current regime in Indonesia. While there continue to be attacks of violence, especially violence against Christians, the applicant has not satisfied the Tribunal that he personally has been the victim of serious violence in the past, and in any event the government appears both capable of and willing to address such violence should it occur."

The Tribunal concluded by saying it was not satisfied that there was a real chance that the applicant would be persecuted for a Convention reason if he returns to Indonesia in the foreseeable future.

7 In order to understand the issues canvassed before the primary judge it is necessary to refer to relevant provisions of the Act. Section 425 provides in part: "(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. (2) Subsection (1) does not apply if: (a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it … …"

"(1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear. (2) The notice must be given to the applicant: (a) … by one of the methods specified in section 441A … … … (4) The notice must contain a statement of the effect of section 426A."

The statement required by s 426A is that if the applicant, having been invited to appear before the Tribunal, does not appear, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

8 Section 441A specifies the methods by which the Tribunal may give documents to a person. The method in sub‑s (4) is dispatch by pre‑paid post. This method: "consists of a member, the Registrar or an officer of the Tribunal, dating the document, and then dispatching it: (a) within 3 working days (in the place of dispatch) of the date of the document; and (b) by prepaid post or by other prepaid means; and (c) to: (i) the last address for service provided to the Tribunal by the recipient in connection with the review; or (ii) the last residential or business address provided to the Tribunal by the recipient in connection with the review."

"If the Tribunal gives a document to a person by the method in subsection 441A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document: (a) if the document was dispatched from a place in Australia to an address in Australia - 7 working days (in the place of that address) after the date of the document … …" 9 The primary judge noted that compliance with s 425 is a precondition to the valid exercise of the Tribunal's jurisdiction, so that failure to comply is a jurisdictional error: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 198 ALR 295. His Honour rejected the appellants' submission that while the s 425A notice is required to be given by one of the methods specified in s 441A, that is not the case with the s 425(1) invitation. He said that s 441A clearly contemplates that both an invitation and a notice under s 424A, if in writing and sent by prepaid post, are taken to have been given to an applicant if sent to his or her last address for service or last residential address. In this case the invitation and the notice were embodied in the one document. They were sent to both the appellants' address for service and their last residential address provided on their application for review. Accordingly, said his Honour, they were invited to appear as required by s 425(1). Their failure to appear allowed the Tribunal to make a decision in their absence: s 426A(1). The fact that they did not become aware of the invitation did not displace the conclusion that it was duly given to them: s 441C. 10 His Honour also rejected a submission that the Tribunal had acted in breach of s 424A. That section provides in part as follows: "(1) Subject to subsection (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it."

By sub‑s (3)(a) the section does not apply to information

"that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member …."

The rejected submission was that the country information to which the Tribunal referred was not "just about a class of persons of which the applicant … is a member". It was said that it went to "many aspects of the whole situation in Indonesia including actions of those who, the applicant feared, might subject him to persecution if he were to return there.

11 The appellants claimed to fear persecution for reasons of race or religion or their membership of a particular social group, namely the Chinese ethnic minority. Thus two classes of persons were involved: ethnic Chinese Indonesians and Christians, sometimes described by the appellants as a composite class of ethnic Chinese adherents to the Christian faith. The primary judge set out lengthy extracts from the country information in question. It can be summarised as follows:

(a) A US State Department report on Human Rights Practices (2000) noted that attacks on places of worship reflect religious tensions, but that other contributing factors include underlying socioeconomic and political tensions between poor Muslims and more affluent Sino‑Indonesian Christians.

· about anecdotal evidence of middle class Chinese Indonesians leaving Indonesia since the May 1998 riots

· that while there was community concern that the riots could be repeated, the objective basis for this is much less clear. The worst recent disturbances did not involve ethnic Chinese, although there are large Chinese minorities, active in business, in the disturbed areas. The Government has promised to end formal discrimination against the Chinese Indonesian minority. Middle class Chinese Indonesians appreciate the message of religious tolerance that both President Megawati and former President Wahid stress.

· Presidents Wahid and Megawati have been assessed by DFAT as acceptable to Chinese Indonesians.

(c) The latest US Department of State report made no reference to any abuses of the Chinese community in Indonesia during 2001.

(d) A DFAT report (December 2001) on Indonesia's attitude to ethnic Chinese and religious minorities mentioned

· Indonesia's long history of State sponsored discrimination against Chinese Indonesians

· the disproportionate wealth and power of ethnic Chinese elites that has bred resentment among some Indonesians

· that former President Wahid had abolished some of the laws and regulations that discriminated against ethnic Chinese Indonesians

· that President Megawati had spoken often of the need to protect minority groups and protect religious freedom, and supported policies of multiculturalism and non‑discrimination towards ethnic Chinese, ethnic Chinese Christians and Christians

· that sporadic communal conflict where Christians become targets often also involve ethnic Chinese and particularly ethnic Chinese Christians.

(e) that an Associated Press report (August 2001) recounted some experiences of named persons, and commented on the attitudes of former Presidents to the Chinese community.

12 The primary judge commented specifically on some of this material. As to (c) he said that although the information was essentially negative, it was "just about a class of persons", namely Chinese Indonesians. Of (d) he said that although the extract refers specifically to the successive Indonesian Presidents, it was not about them but about their attitudes and those of their political associates to ethnic Chinese and Christian minorities. His Honour said the material in (e) was not intended to convey information about the named persons, but rather to exemplify what had happened to ethnic Chinese in Indonesia over many years. Of the information generally, his Honour said: "Properly understood, I cannot discern anything in this material that is not simply information about the Chinese or Christian minorities, or about the composite class of ethnic Chinese Christians. All the material referred to is plainly information which is 'just about a class of persons of which the applicant or another person is a member' and is within the exception embodied in s 424A(3)(a). I do not consider that the information is capable of being characterised as information about the situation in the country at large, and do not express any opinion on whether, if it had been information of that character, it would have been incumbent upon the Tribunal to put the substance of it to the applicants for comment." 13 There are three grounds of appeal. The first is that the primary judge erred "in not finding that the Refugee Review Tribunal acted in breach of its obligations under the law including sections 420 and 425 of the Migration Act 1958 and thereby made its decision relating to the appellants ('the decision'): (i) Without the appellants having any or any proper opportunity to appear before the Tribunal; (ii) Further or in the alternative, without taking appropriate steps to ensure that the appellants had received an invitation to appear before the Tribunal in the situation where the Tribunal was aware that one of the letters it sent in relation to the hearing had been returned to the Tribunal undelivered." 14 The claim put to the primary judge and repeated before us that the methods specified in s 441A by which a document may be given to a person do not apply to an invitation given under s 425 must be rejected. Section 441A applies only when a provision requires or permits the Tribunal to give a document to a person and states that it must do so by one of the methods specified in the section. Section 425A so states. Section 425 does not. It is, however, plain that the sections are to be read together. Section 425 merely requires the Tribunal to invite an applicant to appear. It contains no mechanism by which the invitation is to be extended. That is done in s 425A. If the Tribunal invites the applicant to appear, it must be done in the manner there set out, namely by notice specifying the date, time and place at which the applicant is to appear. That this is the proper construction of the provisions is established by decisions at first instance, with which we agree. See QAAB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 120 at [13] per Cooper J, SAAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 101 at [8] per Mansfield J, Mohammad v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 466 at [17] per Katz J and NAOZ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 820 at [19] per Sackville J (NAOZ). It would be absurd to treat Parliament as intending by s 425 that by some unstated means the Tribunal is to issue an invitation to appear before the Tribunal, and by s 425A that it is to dispatch a notice containing details of the date, time and place for the appearance, but not containing the invitation itself. 15 There was no breach of s 425, as alleged in the notice of appeal. The Tribunal invited the appellants to appear to give evidence and present arguments. The invitation and the notice of the time and place of the hearing were embodied in the one document, as ss 425 and 425A contemplate. See NAOZ at [19]. They were sent to the appellants' address for service at their last residential address appearing on their application for review. By force of s 441C(4) they are taken to have received the document seven working days after the date it bears. As the primary judge said, the fact that they did not become aware of the invitation does not displace the effect of s 441C. A Full Court so decided in NADK v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184 at [14]‑[16]. Section 426A empowered the Tribunal to decide the review in the absence of the appellants and without taking any further action to allow or enable them to appear before it. We agree with the primary judge when he said: "If the applicants' argument were right, the Tribunal would be required in each case to be affirmatively satisfied that the invitation under s 425 had actually come to the notice of the applicant. To proceed in the absence of such affirmative satisfaction would, on the applicants' argument, convict the Tribunal of jurisdictional error. That argument flies in the face of the statutory scheme discernible in ss 441A and 441C and must, I consider, be rejected." 16 That what happened in the present case involved a breach of s 420 does not appear to have been put to the primary judge. That section requires the Tribunal to pursue the objectives of providing a fair and just mechanism of review, and to act according to substantial justice and the merits of the case. Part 7 of the Act (in which ss 420, 425A, 426A, 441A and 441C appear) must be read as a whole. Sections 425A, 426A, 441A and 441C are specific provisions qualifying the general provisions of s 420. The scheme they involve expressly contemplates that, in particular circumstances, an applicant will not attend a hearing, including cases involving no fault of the applicant. Notwithstanding that, the Tribunal is authorised to proceed to decide the review in the applicant's absence. 17 The second ground of appeal is that the primary judge erred "in not finding that the Refugee Review Tribunal in breach of its obligations under the law including sections 420 and 424A of the Act failed to give the applicants particulars of 'independent information relevant to the applicant's claims', failed to ensure as far as was reasonably practicable why it was relevant to the review by the Tribunal and failed to invite the applicants to comment on it, but that information was part of the Tribunal's reason for the decision."

This rather garbled ground is doubtless intended to reflect the elements of s 424A(1).

18 We have recorded the primary judge's approach to s 424A(3)(a) at [12]. In the interval between the hearing and his Honour's decision a Full Court decided VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 186. The "information" in that case was a provision of Italian law to the effect that the holder of a current permit need only notify the Italian border control of an intention to re‑enter the country. The appellant in that case held a current permit. The Tribunal did not draw the provision to the appellant's attention, and the question was whether the provision was "just about a class of persons of which the applicant or another person is a member" (s 424A(3)(a)). Kenny and Downes JJ held that it was. In reaching her conclusion Kenny J was assisted by decisions on country information in a s 424A context. Her Honour said at [50]: "It is usual for the Tribunal to have regard to information about the social, political, religious and other conditions prevailing in a country relevant to an applicant's claim for refugee status, with a view to assessing whether other individuals who share his or her racial, religious, political, social or other attributes suffer treatment of a kind amounting to persecution on Convention grounds in that country. Sometimes information of this kind concerns religious practice, government elections, educational opportunities or other matters. This kind of country information is relevant to the Tribunal's decision‑making task only because the applicant falls within the class of persons who share an attribute, which, according to his or her claim, gives rise to a well‑founded fear of persecution in the country concerned. In this circumstance, the information does not cease to be information 'just about' a class of persons simply because it can also be characterised as information about religious practice, government elections or educational opportunities. It has been repeatedly held that information of this kind falls within par 424A(3)(a) …." 19 After referring to the decision of Gray J in Baig v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 380, Kenny J said: "If the information is relevant only because it concerns a class of individuals who have an attribute in common with the applicant or any other person, then the information will be 'just about' a class of persons of which the applicant or other person is a member. If, however, the information is relevant to the Tribunal's review upon some other basis, then it will not fall within s 424A(3)(a), even though it does not specifically concern the applicant and it is about (but not just about) a class of persons of which the applicant or another person is a member. The information in Baig did not fall within s 424A(3) because, although it was not specifically about the applicant, it was relevant to his participation in a campaign for a by-election and was not just about a class of persons that included him."

"In a sense, the Information in this case is about Italian law, but it is relevant only because it is also about holders of current Italian permits. As already noted, information does not cease to be information 'just about' a class of persons merely because it can be characterised in more than one way. For the purpose of par 424A(3)(a), information is just about a class of persons (even though for another purpose it could bear some other characterisation) if it is relevant to the Tribunal's decision only because it is about this class of persons. The Information in this case was relevant only because it provided the basis for the Tribunal's conclusion that the appellants could enter Italy and reside there …." 20 Downes J said at [72]: "the phrase 'just about' is juxtaposed to the phrase 'not specifically about'. I do not read the phrase 'just about' as defining the breadth or content of the information but as refining the object of the information or whom the information must be about ('a class of persons') in the same way as 'specifically about' refines its object ('the applicant or another person'). Information that legislation confers rights of residence on a class of persons is information 'just about' that class in the sense that it is not about individuals or persons who are not part of the class. It does not matter how broad the information is, so long as it relates only to the class. The decisions of Gray J in Baig v Minister for Immigration & Multicultural Affairs [2002] FCA 380 and of Marshall J (at first instance) and North, Merkel and Weinberg JJ (on appeal) in VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74 seem to me to illustrate this proposition. In the former, the information, properly understood, concerned the applicant because 'it bore specifically upon the question of the applicant's involvement in campaigning in a by-election' …. In the latter, the information was not about the applicant but about a class of persons, namely Afghan nationals, that they could apply to a consulate in Australia for the issue of a passport." 21 Moore J dissented. His Honour was of the view that the Italian law was not information about a class of persons at all, but was information about a law. However, his Honour referred to the country information cases, saying at [29]: "country information generally concerning a class of which an applicant was a member (concerning, for example, the way members of a particular political party, social group or religion were treated) but not, in any respect, specifically about an applicant would have both of the characteristics relieving the Tribunal of the obligation which might otherwise arise under subs 424A(1). If it was specifically about an applicant in some respect, the Tribunal would not be relieved of its obligation to provide particulars of it." 22 The country information in the present case was relevant to the Tribunal's decision‑making processes only because the male appellant was a member of a class of persons who, he claimed, share an attribute which gives rise to a well‑founded fear of persecution. For s 424A(3)(a) purposes, the information can only be characterised as "just about" that class. As Kenny J said in VHAJ, for other purposes it may be characterised as information about religious freedom in Indonesia. The information was not specifically about the appellant in any respect. Nor was it specifically about any of the people named in the report. We agree with the primary judge that although the material includes references to the successive Indonesian Presidents, "it is not about that but about their attitudes and those of their potential associates to ethnic Chinese and Christian minorities". The position is the same with the other people named in the country information. 23 We reject the appellants' contention that information to the effect that a class of persons is not persecuted in a particular country is not "just about a class of persons" because of deals not only with the class but also with the attitudes of others to members of the class. This would mean that information about how to become a witch in Romania would be "just about a class of persons" but information that witches are not persecuted by the Romanian authorities would not be. The contention is inconsistent with the passages from VHAJ we have set out at [18] and [21], and with many country information cases decided since Tharairasa v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 281 at [8] and [16], which appears to have been the first to deal with s 424A(3)(a). 24 The appellants submitted that VHAJ is clearly wrong because it is in conflict with the "principle" contained in the Minister's Second Reading Speech to the Act introducing s 424A. The Minister said the section imposes "a requirement that applicants must be given access, and time to comment, on adverse material relevant to them". That statement merely summarises the effect of sub‑s (1), and is not directed to the exceptions in sub‑s (3). The appellants submissions have not convinced us that VHAJ is clearly wrong. Cf Transurban City Link Ltd v Allan (1999) 95 FCR 553 at [27]‑[28]. See also NARV at [28]. 25 Thus far we have approached the matter on the assumption that s 424A(3)(a) contains two criteria: the information is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member. This would appear to have been the way in which the primary judge dealt with the matter. See [2003] FCA 1474 at [20]‑[21] and [25]. It appears also to have been the view adopted by Kenny J in VHAJ at [45]. It was certainly Moore J's view. See [24] and [29]. Downes J at [73] noted that the question whether s 424A(3)(a) contains a composite test or a cumulative test had not been decided, though his Honour referred to several cases in which the composite approach had been adopted. In NARV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 262 (NARV) at [30] Ryan and Finkelstein JJ adopted the cumulative test. On the assumption that the provision contains two criteria that must be satisfied, no error has been shown in the primary judge's approach to s 424A(3)(a), which is supported by the reasoning of all members of the Court in VHAJ. 26 In VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 a Full Court rejected the appellant's contention that s 424A(3)(a) prescribes two criteria. Gyles and Conti JJ, with whom Allsop J agreed, said: "The reference to the class of persons in subs 424A(3)(a) is not another criterion to be met. It is designed to underline the specificity required by precluding any argument that reference to a class would be taken as a reference to all individuals falling within it." This approach would appear to treat "and" in the provision as meaning "but rather". Cf VHAJ at [24] per Moore J. We need not decide whether the cumulative or the composite construction is to be preferred. On the former, the information in the present case falls within s 424A(3)(a). On the latter it does so even more clearly. The information is not specifically about the appellant. 27 The second ground of appeal alleges a breach by the Tribunal of s 420. What we have said about s 420 in connection with the first ground applies to the second. 28 The third ground of appeal is that the primary judge erred in not finding that the Tribunal "By reason of the matters set out in the other particulars to the Grounds herein, had denied natural justice or procedural fairness to the appellants and so fallen into jurisdictional error." This ground is dependent on the success of one of the other grounds, and accordingly does not require separate treatment. 29 The appeal must be dismissed with costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Sundberg and Hely.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

REASONS FOR JUDGMENT GYLES J: 30 I have had the advantage of reading the judgment of Sundberg and Hely JJ in draft. I agree with the conclusion and generally with the reasons of their Honours. This is not the occasion to explore fully the proper construction of s 424A(3)(a) of the Migration Act 1958 but I add some remarks concerning that aspect of the matter. 31 Some of the statements in the authorities may reflect attention being focused upon the precise terms of s 424A(3)(a) which, when viewed in isolation, are unusual and give colour to the idea that it contains two separate criteria, each of which must be satisfied. The provision is, however, an exception, which it is accordingly necessary to construe in context. The governing provision of s 424A is s 424A(1)(a). The 'information' to be given to an applicant must be of a character 'that the Tribunal considers would be the reason or a part of the reason for affirming the decision that is under review'. The decision under review is necessarily adverse to the visa applicant as the Minister's decision not to grant a visa has been upheld by the Tribunal. Thus, the information to be provided to the applicant is necessarily adverse to the applicant's case for granting of a visa. To be adverse in that sense the information must relate to the applicant. Otherwise it would be irrelevant. This point is well explained by Kenny J in VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 186 at [49]-[55]. Information can relate to an applicant in various ways. Most directly, information will relate to an applicant where he or she is expressed to be the subject of the information. Information adverse to an applicant can indirectly relate to an applicant because it expressly concerns an identified person with a relevant relationship with the applicant's case for a visa. In either of those cases, the information relates to a specific person (or persons). Information adverse to an applicant may also indirectly relate to an applicant because it relates to a class (or classes) of which the applicant is a member. Such adverse information is general in nature rather than particular. Information can not relate to the applicant in any other manner. If such information does not relate to the applicant it is not adverse to an applicant and does not come within the purview of s 424A at all. 32 Understood in this way, the scope of the exception to the Tribunal's duty to notify provided by s 424A(3)(a) becomes clear. It is an exception for that information which is only indirectly adverse to the applicant and general in nature in the sense that I have indicated. That which is adverse and specific to an identified person is not excepted. To put the foregoing in positive terms, the applicant must be provided with particulars of information that is adverse to the applicant's case for a visa and specifically relates to an identified person. This understanding of the operation of s 424A as a whole accords with the Explanatory Memorandum as to the amendment that introduced the provision where it was said: 'new section 424A ensures that an applicant is given particulars of any information that would be the reason or part of the reason for affirming the decision under review, and is asked to comment on that information. The information must be specifically about the applicant or another person and not just about a class of persons of which the applicant or the other person is a member.' 33 There can be little serious doubt that the form of the legislation represents a policy choice that distinguishes between specific and general adverse information which relates to an applicant for the purposes of requiring notice to be given. Such a policy is readily explicable. Information about an applicant or a specified individual with a relevant relationship to the applicant's case for a visa is less likely to be in the public domain and generally known or available than general information in relation to a class of persons. Also, such information is more likely to be capable of verification and rebuttal than information about a class of persons. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate: Dated: 17 May 2004 Counsel for the Applicant: A Krohn

Solicitor for the Respondent: Blake Dawson Waldron