WZAMV v Minister for Immigration & Anor [2008] FMCA 1284

1. On 2 January 2008 the applicant was advised that her Protection Visa Application had been refused by a delegate of the first respondent.[15] A copy of the decision of the delegate was attached to the advice.[16] It is unnecessary for present purposes to set out the analysis and findings in the Delegate's Decision.
2. On 1 February 2008 the applicant made an application to the Refugee Review Tribunal[17] for review of the Delegate's Decision.[18] The applicant repeated her residential and postal addresses in Sydney and Surry Hills respectively,[19] and there was no completion of that section of the Review Application which was designed to indicate that an interpreter had been used in its preparation.[20]
3. On 27 February 2008 the Tribunal wrote to the applicant and said that it had considered the material before it but was unable to make a favourable decision on that information alone. Therefore, the Tribunal issued an invitation to the applicant to appear before the Tribunal to give oral evidence and present argument at a hearing at 10.30am on 31 March 2008.[21] The invitation to appear at a hearing before the Tribunal contained the following paragraph:
   • "The Tribunal will only change this hearing date for good reason. Please contact the Tribunal immediately if there is a difficulty in the hearing proceeding on this date. Please note that the Tribunal may make a decision without further notice, if an applicant invited to appear before the Tribunal fails to attend the scheduled hearing."[22]
4. The letter from the Tribunal inviting the applicant to appear before it also requested the applicant to "read, complete and return the enclosed 'Response to Hearing Invitation' form to confirm the hearing and to advise us of who will take part in the hearing."[23]
5. It was requested that the completed form referred to above and any new documents or written arguments be returned to the Tribunal by 14 March 2008.[24]
6. There was no reply from the applicant to the invitation to attend the Tribunal hearing.[25]
7. When the matter came on before the Tribunal for hearing on 31 March 2008 the Tribunal Hearing Record records the applicant as a "NO SHOW".[26]
8. There is no evidence of any communication of any kind being received by the Tribunal, either before or after the hearing on 31 March 2008, in relation to the applicant's ability to attend that hearing.
9. The Tribunal proceeded to make and sign a decision, the decision being signed on 5 May 2008.[27]
10. The Tribunal, by letter dated 6 May 2008 addressed to the applicant's specified postal address, invited the applicant to the handing down of the Tribunal's decision. The letter advised that the decision was to be handed down at 2.30pm on 27 May 2008.[28]
11. There is no evidence of any communication of any kind being received by the Tribunal from the applicant in relation to the invitation to the handing down of the decision.
12. The Tribunal's decision was handed down on 27 May 2008.[29] Again, there is no evidence of any communication of any kind being received by the Tribunal from the applicant, either before or after the handing down of the Tribunal Decision in relation to the handing down of that decision.

1. The Tribunal Decision notes that the Delegate's Decision was an RRT-Reviewable Decision under s.411(1)(c) of the Migration Act and that the applicant had made a valid application for review under s.412 of the Migration Act.
2. The Tribunal Decision sets out the relevant law, referring to ss.65 and 36(2)(a) of the Migration Act and the relevant definition of "refugee" taken from Article 1(A)(2) of the 1951 Convention Relating to the Status of Refugees, and notes a number of High Court decisions considering that definition.[30]
3. The Tribunal Decision sets out the four key elements of the definition of "refugee", namely:

1. that the applicant must be outside his or her country; 2. that the applicant must fear persecution, which must involve "serious harm" to the applicant and systematic and discriminatory conduct, where the expression "serious harm" includes threats to life or liberty, significant physical harassment or ill-treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant's capacity to subsist;[31]

1. that the persecution feared by the applicant must be for a Convention reason - race, religion, nationality, membership of a particular social group or political opinion; and

1. that the applicant's fear of persecution for a Convention reason must be a well-founded fear, that is a genuine fear founded upon a real chance of persecution for a Convention reason.[32]
2. The Tribunal Decision sets out the relevant factual background, and in particular:
   1. the applicant's personal details including nationality, age, marital status, place of birth, schooling and employment;[33] and
   2. the claims made in the written statement appended to the Protection Visa Application (which is set out above).[34]
3. The Tribunal Decision also notes that the applicant was advised that the Tribunal was unable to make a favourable decision on the information provided in the Protection Visa Application, and that the Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 31 March 2008, but that the applicant did not attend, nor did the Tribunal receive a response to the invitation.[35] The Tribunal Decision notes that as a consequence of the applicant's non-appearance the Tribunal was entitled to, and had decided to, make a decision on the Review Application without taking any further action to enable the applicant to appear before it.[36]

1. The Tribunal understood the claim to be one of persecution, and that the applicant alleged "that she will be persecuted and discriminated against if she returns to Indonesia because her parents used to work for the Soeharto Government."[37]
2. The Tribunal noted that "[i]mportant aspects of [the applicant's] claims are general and lacking in detail."[38]
3. The Tribunal observed that:
   • The applicant claims that her parents worked for the Soeharto Government, but she has not provided any information as to what kind of work they did, what positions they held or which part of the government they worked for. She claims that her house was targeted in 1998 but she has provided limited detail about this incident, such as who the perpetrators were or why the police did not take action against them. She states that her parents were detained in July 2000, but she again has not provided detailed information about the circumstances in which they were detained, what happened to her while her parents were detained, why the police waited until July 2000 to arrest her parents and how they were released.
   • The applicant states that her colleagues at the company where she worked looked down on her and stopped talking to her when they discovered that her parents worked for the Soeharto Government. She does not outline how these claims constitute persecution nor does she outline any particular instances of harm. She claims that in February 2005, policemen came to her company to require her manager to supervise her. The applicant has provided limited detail as to what 'supervision' meant in this context and whether the nature of the supervision constituted serious harm and systematic and discriminatory conduct. The applicant has provided limited detail as to why she faces a real chance of harm in the future because of her parents' association with the Soeharto Government if she returns to Indonesia. The Tribunal has no information about any claimed discrimination or harm experienced by the applicant after 2005.[39]
4. The Tribunal found that the applicant's claims were assertions, which lacked detail, and the truth of which the Tribunal had not had an opportunity to test, because of the applicant's non-attendance at the Tribunal hearing, and the Tribunal was therefore not satisfied that it could find as fact any of the assertions made by the applicant.[40] The Tribunal therefore decided that it could not find that there was a well-founded fear of persecution by reason of the applicant's actual or imputed political opinion, related to her parents' association with the former Soeharto Government, or by reason of her membership of a particular social group, being a family member of persons who used to work for the Soeharto Government.[41]
5. Importantly, the Tribunal went on to observe that the "applicant has not claimed to fear persecution for any other Convention reason and no other reason is suggested on the evidence before the Tribunal."[42]
6. The Tribunal therefore affirmed the Delegate's Decision not to grant the Protection Visa Application.[43]

1. On 26 June 2008 the applicant applied to this Court for judicial review of the Tribunal Decision. The grounds are short:
   • "1. I really fear returning to Indonesia because I am ethnic Chinese and Christians.
   • 2. We were tortured by the locals in Indonesia when I was in Indonesia.
   • 3. The tribunal member did not fully consider that our fear is well-founded".[44]
2. The application seeks the following orders:
   • "1. The decision of the Refugee Review Tribunal be set aside.
   • 2. A decision that we meet the refugee criteria.
   • 3. Costs."[45]
3. The applicant filed an affidavit in support of the application in the following terms:
   • "1. I have no intention to go back Indonesia.
   • 2. The decision from Refugee Review Tribunal is attached."[46]
4. At the first court date on 28 July 2008, at which the applicant was present with the assistance of an interpreter, the following orders were made:
   • "1. The First Respondent shall file two copies and serve one copy of the Court Book on the Applicant on or before 11 August 2008.
   • 2. The Applicant shall file and serve on or before 18 August 2008:
     • 2.1 any amended application; and
     • 2.2 any affidavits upon which he [sic] intends to rely at the hearing of this matter.
   • 3. A hearing under rule 44.12 be dispensed with and the application be listed for final hearing on 10 September 2008 at 10.15am.
   • 4. The Applicant file and serve an outline of submissions at least 14 clear working days before the hearing.
   • 5. The First Respondent file and serve an outline of submissions at least 7 clear working days before the hearing.
   • 6. There be liberty to apply.
   • 7. Costs reserved."[47]
5. In accordance with Order 3 of the Orders of 28 July 2008 the matter came on for hearing on 10 September 2008. Again the applicant appeared in person, with the assistance of an interpreter. When the Court enquired as to whether the applicant had anything to say in support of the application the applicant responded that she had already submitted her documents, and that there was nothing that she wished to say in addition to them.[48]
6. Counsel for the first respondent then made submissions orally, in support of written submissions previously filed in accordance with Order 5 of the Orders of 28 July 2008. In summary, the first respondent submitted that:
   1. no claims of the kind advanced in the first and second grounds of the Application were advanced before the Minister's Delegate or before the Tribunal; and
   2. the Tribunal fully considered the applicant's claim that she had a well-founded fear of persecution, and on the basis of the material available to it, and in the circumstances of a hearing not attended by the applicant, the Tribunal in finding that the applicant's claims were mere assertions which were untested, was not in error (let alone jurisdictional error).[49]
7. The applicant then indicated that she did not have anything to say by way of reply to what had been said by the first respondent.[50] Judgment was reserved to a date to be fixed and the Court was adjourned.[51] Within five minutes the Court was resumed as a consequence of the applicant indicating to an officer of the Court that there was something she wished to say in relation to the matter.[52] The first respondent did not oppose the hearing being re-opened in those circumstances.[53]
8. The applicant then proceeded to indicate that the reason she did not attend the Tribunal hearing on 31 March 2008 was because she was sick at the time. That was as much as was said, and no documentary proof of sickness was proffered.[54] Then the applicant said this:
   • "Yes, and also I wanted to add as well why I put to this application for asking for the refugee is because I'm really feeling that I was really under a lot of pressure to be living in Indonesia. So especially after the Suharto regime is already fall down, and I really wanted to be able to get this refugee status in here."[55]
9. In response the first respondent observed that:

1. this was the first occasion on which the question of sickness preventing attendance at the Tribunal hearing had been raised; 2. there was no record of communication from the applicant or any representative of hers in relation to any sickness (or any other reason) for not attending the Tribunal hearing;

1. there was no sworn testimony on the issue of sickness; and

1. in any event, the Tribunal had the power pursuant to s.426A(1) of the Migration Act to determine the matter in the absence of the applicant.[56]
2. The applicant had nothing to say in reply to the first respondent's submissions.
3. The matter was again adjourned with judgment reserved to a date to be fixed.
4. The Court observes that the applicant did not:

1. file any amended application; 2. file any affidavits upon which she intended to rely at the hearing of the matter; and

1. did not file and serve an outline of submissions before the hearing,

in accordance with the Orders of 28 July 2008, nor did the applicant file and serve any such documents at any time up to and including the hearing of the application on 10 September 2008.

1. There are three grounds set out in the Application, two of which have not been previously advanced before the Minister's Delegate or the Tribunal. It is convenient for the Court to consider the third ground (which was considered by the Minister's Delegate and the Tribunal) first.

Whether the Tribunal fully considered whether there was a well-founded fear of persecution

1. The Tribunal was not satisfied on the papers as to the applicant's claim of a well-founded fear of persecution for a Convention reason.
2. The Tribunal gave the applicant an opportunity to put before the Tribunal any evidence in support of her claim by inviting her to a hearing on 31 March 2008. The applicant failed to avail herself of that opportunity. The Tribunal was therefore left with the material in the Protection Visa Application, which is set out above,[57] as the basis for the applicant's assertion of a well-founded fear of persecution for a Convention reason.
3. The Tribunal considered each aspect of the claim, and the evidence before it, such as that evidence was. The Tribunal:
   1. noted that the evidence was general and lacked detail;
   2. referred to the fact that the claims were associated with her parents working for the Soeharto Government, and
      1. the targeting of her parents' house, and a lack of police action in relation thereto; and
      2. the detention of her parents,

noting all the while a lack of detailed information in relation to these claims;

1. referred to the claim that the applicant had recently been working and the discovery by her employer and workmates of her family's association with the Soeharto Government, and
   1. the assertion that her fellow employees consequently looked down on her; and
   2. the asserted requirement that she be supervised by management after a police visit,

and concluded that these were mere assertions, and moreover, mere assertions that the Tribunal did not get the opportunity to test at hearing.

1. On the information before it the Tribunal was not satisfied:
   1. that the applicant's parents:
      1. worked for the Soeharto Government;
      2. had their house targeted; and
      3. were detained in 2000;
   2. that the applicant:
      1. suffered persecution at work because of her family's association with the Soeharto Government; or
      2. was monitored, or supervised, at work in and from February 2005 because her employer or workmates had discovered her family's association with the Soeharto Government,

and was therefore not satisfied to the relevant standard that the applicant had a well-founded fear of persecution by reason of political opinion or membership of a particular social group.

1. The Tribunal fully considered all of the information available, and was simply not satisfied as to the applicant's claims. The applicant failed to provide detailed particulars to the Tribunal, both in the Protection Visa Application and when afforded the opportunity to do so by appearing before the Tribunal, and it is the applicant's failure to put evidence before the Tribunal that is the cause of the Tribunal's lack of satisfaction, not a failure by the Tribunal to consider fully the evidence that was available. The Tribunal fully considered that evidence, and reached a determination which on that evidence was open to it.
2. Jurisdictional error occurs where the decision-maker (in this case the RRT):

1. identifies a wrong issue; 2. asks the wrong question;

in a way affecting the exercise of power by the decision-maker, resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute.[58]

1. The issue identified in the Tribunal Decision was whether under s.65 of the Migration Act the decision-maker was satisfied that the prescribed criteria for the grant of a visa had been satisfied.[59] The Tribunal referred to the relevant criterion under s.36(2) of the Migration Act for the grant of a class XA protection visa as being whether the Minister (the first respondent) was satisfied that Australia had protection obligations towards the applicant, and the further criteria for the grant of a protection visa as set out in Parts 785 and 866 of Schedule 2 to the Migration Regulations 1994 (Cth).[60] Approaching the matter on this basis is entirely consistent with authority.[61] The Tribunal correctly identified the relevant elements of the Convention definition of "refugee",[62] and considered the question of whether there was a well founded fear of persecution. [63] That was the proper approach to adopt.
2. The Tribunal did not identify a wrong issue or asked a wrong question.
3. The Tribunal then considered the various specific issues raised by the applicant. These issues, set out above,[64] were all relevant considerations, and were considered in the Tribunal's decision, and findings made which were open on the evidence before the Tribunal. The applicant's assertion that the Tribunal failed to consider the whole application is patently incorrect. There is nothing which indicates that the Tribunal ignored any relevant consideration. Review of the matters relied upon by the Tribunal also indicates that no irrelevant considerations were relied upon by the Tribunal, and none were identified by the applicant.
4. The applicant has not established any jurisdictional error on the part of the Tribunal in considering the Review Application.

1. There are two new grounds in the application, namely:
   1. that the applicant fears returning to Indonesia because she is ethnic Chinese and Christian; and
   2. that the applicant alleges being tortured by the locals in Indonesia when she was there.
2. These grounds were not previously raised, and were therefore not able to be considered by the Tribunal. They cannot be considered by this Court for two reasons:
   1. to do so would be to engage in impermissible merits review; and
   2. in any event, and notwithstanding that the applicant had an opportunity to file affidavits under the Court's Orders of 28 July 2008, there is no or no sufficient evidence to found the assertions made by the applicant. The Court notes that generally new evidence will not be admitted on an application for judicial review, save in support of a complaint about a lack of procedural fairness or an allegation of bias.[65]
3. There is no reason to doubt that the applicant is ethnic Chinese: she says so in the Protection Visa Application.[66] The applicant's ethnicity was not however a matter adverted to as a basis for any of the treatment alleged to have been suffered by her family or her.[67] The Protection Visa Application only asserts that the treatment was solely because of the fact that her family worked for the Soeharto Government.[68] The Tribunal said, correctly in the Court's view, that no other reason for fearing persecution was suggested by the evidence before the Tribunal.[69]
4. The assertion that the applicant is Christian is directly contrary to her Protection Visa Application statement that she is a Buddhist.[70] In any event, as with her ethnicity, it is not a matter adverted to in the Protection Visa Application as a basis for any of the treatment alleged.
5. The assertion that the applicant was tortured is not supported by the evidence put before the Tribunal. That evidence, although lacking in particularity (as the Tribunal observed) shows no evidence of torture, and, at least on one view, shows many of the elements of a relatively stable life: the applicant was born, lived all of her life and went to school and university in the same suburb, and later had stable employment for around four years, whilst still living in that suburb, before she came to Australia, legally, as a tourist. There is nothing in the Protection Visa Application which constitutes evidence of torture.
6. Even when afforded the opportunity to say something before this Court, the applicant did not raise these new grounds. She said no more than that she was "under a lot of pressure to be living in Indonesia" and that that was the reason that she made the refugee application.[71]
7. Nothing which the applicant has put before the Court constitutes jurisdictional error by the Tribunal, nor does it otherwise empower the Court to provide any form of relief. The additional grounds listed in the application do not therefore give rise to jurisdictional error on the part of the Tribunal.

1. The applicant asserted at the hearing before this Court that the reason that she did not attend the Tribunal hearing was because she was "sick at that time."[72]
2. Despite being given the opportunity to do so there is no affidavit evidence as to the nature, length or circumstances of that sickness, from either the applicant or a medical or other health practitioner. Nor, importantly, is there any evidence of any attempt to contact the Tribunal to explain that the applicant was sick.
3. The Tribunal's letter of 27 February 2008 tells the applicant to contact the Tribunal immediately if there is a difficulty in the hearing proceeding on the due date (which was 31 March 2008). The letter then goes on to point out that the Tribunal may make a decision without further notice if an invited applicant fails to appear at the hearing before the Tribunal.[73]
4. At no stage prior to the hearing before this Court did the applicant ever raise the fact that she was sick at the time of the Tribunal hearing. In the circumstances, the applicant's alleged sickness at the time of the Tribunal hearing, could only constitute jurisdictional error if it was brought to the attention of the Tribunal:

1. prior to the hearing; 2. on the day of the hearing; or

1. at a time prior to the Tribunal Decision being handed down,

and the Tribunal determined not to utilise its powers to re-schedule the Tribunal hearing or delay the Tribunal Decision to afford the applicant an opportunity to be heard.[74] The Tribunal did not deny the applicant the opportunity to be heard because the applicant never informed the Tribunal that she was sick at the time of the Tribunal hearing. Rather, the Tribunal simply discharged its responsibilities according to law.

1. In the circumstances, the applicant has not established jurisdictional error on the part of the Tribunal by reason of her alleged sickness at the time of the Tribunal hearing.

1. For the reasons set out above, the applicant has failed to establish any jurisdictional error by the Tribunal. The application will therefore be dismissed.
2. The Court will hear the parties as to costs.

I certify that the preceding 69Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !sixty-ninesixty-nine (69) paragraphs are a true copy of the reasons for judgment of Lucev FM

[10] CB 2. By the time the application to this Court was made the applicant had moved to Western Australia.

[13]"Migration Act".

[14] CB 15-16. Transcribed from the original without amendment, except where indicated.

[23] CB 63 (bold emphasis in original letter).

[30] Tribunal Decision, paras. 6-10; CB 73-74.

[31] Migration Act, s.91R(1) and (2).

[32] Tribunal Decision, paras. 12-16; CB 74.

[33] Tribunal Decision, para. 20; CB 75.

[34] Tribunal Decision, para. 21; CB 75. The applicant's written statement is reproduced at para. 9 above.

[35] Tribunal Decision, para. 24; CB 75-76.

[36] Migration Act, s.426A(2); Tribunal Decision, para. 25; CB 76.

[37] Tribunal Decision, para. 26; CB 76.

[38] Tribunal Decision, para. 26; CB 76.

[39] Tribunal Decision, paras. 27-28; CB 76.

[40] Tribunal Decision, paras. 29-30; CB 76.

[41] Tribunal Decision, para. 31; CB 76-77.

[42] Tribunal Decision, para. 31; CB 77.

[43] Tribunal Decision, para. 33; CB 77.

[44] Application, Grounds of Application, paras. 1-3.

[45] Application, Orders sought by Applicant, paras. 1-3.

[46] Applicant's Affidavit, 26 June 2008, paras. 1-2.

[49] First Respondent's Outline of Submissions, para. 15-17; Transcript, pages 2-4.

[58] Minister for Immigration and Multicultural Affairs & Ors v Yusuf & Ors (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para 82 per McHugh, Gummow and Hayne JJ; Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ; SZLKZ v Minister for Immigration and Citizenship [2008] FCA 850 at para 16 per Reeves J ("only able to intervene where ... alleged error amounts to jurisdictional error"); WAME v Minister for Immigration & Anor [2007] FMCA 1569 at paras. 13-14 per Lucev FM.

[61] SZGZQ v Minister for Immigration & Multicultural Affairs [2007] FCA 62 at paras. 13-14 per Greenwood J and the cases there cited.

[65] SZJBD v Minister for Immigration and Citizenship [2008] FCA 922 at para. 24 per Siopis J.

[69] Tribunal Decision, para. 31, CB 77 (as set out at para. 31 above).

[74] Migration Act, s.426A(2).