S14/2002 v Refugee Review Tribunal [2004] FCAFC 171 (2 July 2004)

Last Updated: 2 July 2004

FEDERAL COURT OF AUSTRALIA
S14/2002 v Refugee Review Tribunal [2004] FCAFC 171

MIGRATION – whether Tribunal failed to consider substance of claims – whether Tribunal failed to distinguish between the Indonesian National Army and the Indonesian authorities.

ADMINISTRATIVE LAW – construction of reasons for decision – whether the accidental omission of the word ‘not’ in Tribunal’s reasons sufficiently clear for the relevant sentence to be construed as if that word appeared in it.

PRACTICE & PROCEDURE – application for order nisi remitted to Federal Court of Australia – application (amended with leave) expressly claimed constitutional writs in terms of orders absolute – proceedings at first instance conducted as if applications for orders absolute – judgment given on that basis – whether leave required.


Migration Act 1958 (Cth)


NAHQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 297 distinguished
Long v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 218 referred to
Wu Shan Liang v Minister for Immigration and Multicultural and Indigenous Affairs [1996] HCA 6; (1996) 185 CLR 259 referred to
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 referred to




S14/2002 v REFUGEE REVIEW TRIBUNAL, MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N1826 of 2003



CARR, TAMBERLIN & LANDER JJ
2 JULY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1826 OF 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	S14/2002 Appellant
AND:	REFUGEE REVIEW TRIBUNAL First Respondent
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Second Respondent
JUDGES:	CARR, TAMBERLIN & LANDER JJ
DATE OF ORDER:	2 JULY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the second respondent’s costs of the appeal.






Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1826 OF 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	S14/2002 Appellant
AND:	REFUGEE REVIEW TRIBUNAL First Respondent
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Second Respondent

JUDGE:	CARR, TAMBERLIN & LANDER JJ
DATE:	2 JULY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

CARR J:

INTRODUCTION

1 This is an appeal from a judgment, delivered by a judge of this court on 22 October 2003, dismissing the appellant’s application for constitutional writs of certiorari and mandamus and associated declaratory relief in relation to a decision of the Refugee Review Tribunal made on 24 August 2001. The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") to refuse to grant the appellant a Protection Class (Class XA) Visa under the Migration Act 1958 (Cth) ("the Act").

2 The matter was remitted to the Federal Court from the High Court pursuant to s 44(1) of the Judiciary Act 1903 (Cth) by an order made by Gaudron J on 6 February 2003. I consider, later in these reasons, whether the appellant needs leave to appeal. As may be apparent from my description of him I do not think that he does – given the particular circumstances of this matter.

FACTUAL AND PROCEDURAL BACKGROUND

3 The appellant arrived in Australia on 7 January 2001 on a business visa. On 5 February 2001, he lodged an application for the protection visa. On 26 February 2001 a delegate of the Minister refused to grant the visa. On 23 March 2001, the appellant applied for a review of that decision by the Tribunal.

4 The criterion for the grant of such a visa is, subject to subdivision AL of Division 3 of Part 2 of the Act, that an applicant be a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees of 28 July 1951 as amended by the Protocol Relating to the Status of Refugees of 31 January 1967 ("the Convention").

5 The following description of the facts and the Tribunal’s reasoning is taken largely from the learned primary judge’s reasons. In his application, the appellant stated that he was born on 27 December 1967 in Jakarta, Indonesia, although the accompanying submission said he was born in the village of Lingkok, Kecamatan Mutiara in Aceh. In Aceh, according to the submission, the appellant was known by a different name ("the Aceh name"), which was his true identity. The name he had used throughout the Protection visa application process was an alias ("the Jakarta name").

6 At the hearing the appellant produced an Indonesian identity card listing the appellant’s Aceh name, his date of birth as 5 November 1967, and his birthplace as Pidie, Aceh. The appellant’s Indonesian passport is in his Jakarta name. The appellant went to Jakarta to study at Universita Muhammadiyah (enrolling in his Aceh name). In 1996 he gained a Bachelor of Engineering degree. The appellant lived in Jakarta from 1986 to 1998 (although some documentation suggests he arrived in 1991), when he returned to Aceh, which at that time was safe. He lived there until 2000.

7 The appellant’s claims for entitlement to a Protection visa were as follows: The Indonesian military (Tentara Nasional Indonesia ("TNI")) were looking for him due to his association with a humanitarian organisation ("the Organisation"), which he had helped to set up and of which he was the fund raiser. The purpose of the Organisation was to help those of the Free Aceh Movement ("GAM") activists who were seeking refuge from the TNI.

8 The appellant’s two main claims were that:

• several of the members of the Organisation were kidnapped in 1999 by BRIMOB (special forces of the Indonesian Police/anti-riot police, Police Mobile Brigade (Brigade Mobile, Brimob)); and

• in August 1999 his brother went to Medan on Sumatra with letters asking for financial support for the refugees where he was arrested and never returned.

9 In February and April of 2000, so the appellant claimed, the TNI "visited" the appellant’s wife looking for him. They made a further visit in August 2000 searching for him, during which they hit and threatened to kill his wife. The appellant decided to flee Aceh and after being advised to do so by two people in the waiting room at the KONTRAS (the Commission for Disappearances and Victims of Violence) he left Indonesia. He claimed he would have been arrested if he had returned to Indonesia.

10 At the hearing before the Tribunal the applicant said that he would not be safe in Jakarta or Aceh. He said he would not feel safe in Jakarta because when he was in Jakarta his brother had been kidnapped in Medan. There had been an explosion at a place where he had been living in Jakarta and he had reason to believe Acehnese people in Jakarta had been taken away. He said he had been told by a friend who had attended a meeting held by an Acehnese leader in Australia that since Megawati Soekarnoputri had come to power many Acehnese in the Pasai Ming Gel area of Jakarta had been taken away.

THE TRIBUNAL’S DECISION

11 It is convenient to set out the following passages from the Tribunal’s reasoning. I have numbered the paragraphs to facilitate particular references to the reasoning:

‘1. The Applicant has claimed that he became involved in the conflict in Aceh only when a number of displaced people moved to his area.

2. His involvement, according to his account, was solely a humanitarian one.

3. However, he claims to have become of interest to the authorities after two workers were "kidnapped" by an arm of the Indonesian military (ABRI) and never returned and he heard that one of his brothers was arrested in Medan in Sumatra when he was going there to solicit donations for the refugees.

4. I accept that these events are plausible.

5. However, there are matters that give me cause for concern in regard to his claims that the Indonesian authorities were interested in him.

6. He claimed that the authorities had gone looking for him, and when he wasn’t found had threatened to kill his wife.

7. I find it implausible that she would choose to remain in Aceh knowing that this threat could be carried out, if in fact it was made.

8. I do not accept his explanation that she didn’t want to travel because of her pregnant state. I am of the opinion that she wouldn’t have been aware that she was pregnant at that time given that she delivered the child a little over nine months later.

9. However, even if I am wrong and she had become aware that she was pregnant the pregnancy at that stage would have posed no impediment to her leaving, which I believe she would have done if the authorities had threatened to kill her as the Applicant claimed.

10. I also find it implausible that he would have escaped from the area by driving a truck. Since the area, by his account, had become of security concern.

11. He claimed that shortly after arriving in Jakarta he had sought the assistance of KONTRAS, an agency responsible for disappearances and victims of torture.

12. However, according to his account he struck up a conversation with two other unidentified people in the waiting area, and without finding out whether or not they were KONTRAS officers took their advice and began to plan leaving the country.

13. Even if I accepted that, and I do not, I find that the passport which he obtained was issued in October and a business visa was granted by the Australian Embassy shortly afterwards.

14. If, as he claimed, he was fearful of being caught I am of the opinion that he would have left the country as quickly as he possibly could, using whatever means or route was available, and as soon as possible after the passport and visa were issue [sic].

15. However, it was almost three months after the issue of the passport and visa that he left.

16. He claimed that this was because he was unable to obtain a seat on Indonesia’s national airline Garuda.

17. When I put to him that I found this implausible he said that this was what was offered to him by an agent and he accepted it.

18. I find this implausible and in doing so have taken into account that the Applicant is no stranger to Jakarta having lived there for twelve consecutive years.

19. He is not an ignorant man. He is educated to tertiary level.

20. This being the case, I am of the opinion that if he held the fear he claims he would have sought any means and any route to leave Indonesia once he had the passport and visa.

21. I find his efforts to obtain an extension of his ID in November 2000 in the name he claims the authorities were looking for further indicates that he was not of interest to them, and I am of the opinion that he held no fear in that regard.

22. I find his explanation that he would be in trouble if the authorities found him with a false ID is implausible when the comparative claimed risk of finding him in his actual identity is taken into consideration.

23. I find that he extended his ID as is normal every three years because it was due for renewal and he was aware that he was not of concern.

24. These aspects of his claims lead me to conclude that the Applicant was not of interest to the authorities as he has claimed and his motivation for leaving Indonesia is other than what he has claimed.’

12 The Tribunal then considered the question of relocation, turning first to a letter dated 23 February 2001 which the appellant had produced at the hearing. The letter purported to be from one of the appellant’s brothers. It stated that the situation in the appellant’s village was uncertain, that the appellant should not be surprised to find that his house had been burned down, that the writer did not know the whereabouts of the appellant’s wife who was pregnant and really afraid. The letter also contained his brother’s advice that the appellant should not return because he was wanted by the TNI.

13 The Tribunal’s reasoning in relation to the question of relocation was as follows:

‘The Letter from the Applicant’s Brother

25. Having considered all of the above issues I am of the opinion that this letter is self serving and does not indicate the actual situation in regard to the Applicant.

26. However, in any event the issues raised in the letter are peculiar and particular to Aceh, and for reasons discussed below I find that the Applicant could relocate without fear of persecution to Jakarta even if he was of interest in Aceh.

Relocation

27. In this matter relocation is in the sense that the Applicant is returning to a location that he has lived in, was educated and worked in, for twelve years in his own name.

28. He was absent from Jakarta only from 1998 until August 2000.

29. As discussed above the Applicant was of no adverse interest in Jakarta at the time he left there, and his motivation for leaving was one of a better job prospect.

30. By his own account he returned to Jakarta at the beginning of August 2000 and remained in the same area, South Jakarta, until 6 January 2001, a total period of five months.

31. Although he claimed to have moved around from house to house in that time I do not accept that this was for the purpose of hiding since he reported to the Chief of the village in south Jakarta to renew his ID after which he remained for a further two months.

32. The Applicant provided media articles of a boarding house where an explosion had occurred in May 2001. Although he claimed that he had lived in that house prior to 1998 and spent a couple of days there in 2000 I find this does not indicate that he is a risk since the articles were unable to determine whether the incident occurred as s [sic] consequence of someone in the house attempting to make an explosive device or from other causes. This single incident does serve to indicate that Acehnese people are targeted in Jakarta.

33. As discussed above I find that the Applicant felt no urgency to leave Jakarta since he had the means to do so from mid October 2000. Also, as discussed, I find this was because there was no basis for any fear of serious harm amounting to persecution.

34. The Applicant is a young, able bodied man who has previously worked in Jakarta, and although his previous work was under his own employ he is skilled, well educated and has demonstrated the ability to work in a field other than his training to support himself.

35. I find that the policy of the central government under the presidency of Megawati Sukarnoputri is one of conciliation with Aceh and there are human rights groups in Jakarta the Applicant could rely on this policy and the protection available to him there to continue to live there without facing a "real chance" of persecution even if he was of interest to the authorities in his area of Aceh.

36. Since he lived in Jakarta for five months, chose to identify himself in his name to the appropriate official in the area he was living in November 2000 I find he did not hold a fear of persecution in Jakarta. Further he has demonstrated the ability to live and support himself in that area for a lengthy period.

37. I find it is reasonable to expect that the Applicant could return to Jakarta, and remain there away from any harm he may fear in Aceh.

38. Since this is possible I find that any fear of harm amounting to persecution is not well-founded.’

THE DECISION AT FIRST INSTANCE

14 In summary, his Honour held that the Tribunal had not failed, as the appellant had claimed, to consider all of his claims. The appellant had relied heavily at first instance (as he did at the hearing of the appeal) on the Tribunal’s observations at paragraphs 3 and 4 numbered above. His Honour found that, by the use of the word "plausible" in paragraph numbered 4 the Tribunal should be taken to have accepted that the two events referred to in the immediately preceding paragraph may well have occurred and were to be treated as having occurred when considering the appellant’s claims.

15 The learned primary judge found that it was open for the Tribunal, on the material before it, to conclude that the appellant could relocate to Jakarta where he would not be at risk of harm. As part of that process of reasoning, his Honour decided that it was probable that the word "not" had been inadvertently omitted after the word "does" in the last line of paragraph numbered [32] of its reasons.

WHETHER THE APPELLANT REQUIRES LEAVE TO APPEAL

16 The application to the High Court of Australia was for orders nisi for the issue of constitutional writs. Order 51A rule 5 of the Federal Court Rules provides for such circumstances. In essence the rule is that unless a judge otherwise orders, the Court will at the same time hear the parties on whether, if the order nisi were made, it should be made absolute and, if satisfied that an order absolute should be made, will not make the order nisi, but will proceed directly to make the order absolute.

17 The leave point was considered by a Full Court of this Court quite recently in NAHQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 297. Whitlam and Kiefel JJ held that the order made at first instance, being simply an order refusing an application for an order nisi was interlocutory and the appeal in that matter was thus incompetent. Moore J expressed some doubts about whether the judgment at first instance was interlocutory, but agreed that if leave was necessary it should be refused because the proposed appeal had no prospects of success.

18 I would distinguish NAHQ from the present matter for the following reasons. In that case the only application formerly before the primary judge was for an order nisi. It remained such an application at all times – see paragraph [3] of the joint reasons. I acknowledge that their Honours accepted that Wilcox J in that matter had heard the application as if it were an application for final relief.

19 But in the present matter the appellant was granted leave to amend his application. It is quite clear from the amended application that the appellant did not seek orders nisi but sought orders absolute for constitutional writs and an associated declaration. The hearing of the matter was conducted on that basis without any reference to Order 51 rule 5. His Honour commenced his reasons for judgment by expressly confirming that the application was for constitutional writs of certiorari and mandamus and a declaratory order. See also Applicants S61 of 2002 v Refugee Review Tribunal [2004] FCAFC 150.

THE APPEAL

20 There were two grounds in the amended appeal. The first ground was that his Honour erred in failing to find jurisdictional error on the part of the Tribunal.

21 The foundation stone for this ground was the appellant’s assertion that the Tribunal had found his claims to be "plausible" and that it had not taken what were described as "the past events" into account when considering whether there was a real chance of the appellant being persecuted.

22 In the submissions made by Mr A McInerney, counsel (pro bono publico) for the appellant, it emerged that this ground was very much based upon a contention that the Tribunal had accepted that the TNI was interested in the appellant. This was said to be because, at paragraph numbered 4 of its reasons above, the Tribunal had said "I accept that these events are plausible".

23 However, in my opinion, a fair reading of the Tribunal’s reasons shows that that paragraph refers, not to the appellant’s claim that he was of interest to the authorities, but to the two events specified in paragraph numbered 3 i.e. that two workers were kidnapped by ABRI and never returned and that one of his brothers was arrested in Medan. I think that clearly emerges when one takes into account the qualification expressed in paragraph numbered 5, which for convenience I reproduce below:

‘5. However, there are matters that give me cause for concern in regard to his claims that the Indonesian authorities were interested in him.’

24 It is quite clear, in my opinion, from paragraph numbered 24 of its reasons that the Tribunal found that the appellant was not of interest to the authorities.

25 Counsel for the appellant submitted that the Tribunal had erred in equating the TNI with the Indonesian authorities. It should have considered the appellant’s claims in relation to the TNI as being a distinct source of persecution.

26 Once again, a fair reading of the Tribunal’s reasons, in my view, shows that it understood that the appellant’s fears were of threats from the TNI – see the description of the appellant’s claims at the foot of paragraph 17 of its reasons. I accept the respondent’s submission that when the Tribunal referred to the Indonesian authorities, it was using an over-arching expression which included the TNI – see, for example, the matter referred to in paragraph numbered 6 above (the TNI’s visits to his wife).

27 In his second ground of appeal, the appellant challenged the course taken by his Honour in reading the word "not" into paragraph numbered [32] above. Part of that challenge was to some of his Honour’s reasoning, based on the decision in Long v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 218 at [32] that the content of the Tribunal’s reasons was a question of fact, thereby leaving it open to him to infer as a matter of fact that the Tribunal had omitted the word "not".

28 I would not take any issue with his Honour’s description of what was held in Long on that point. But the question in this matter is one of construction of the Tribunal’s reasons. I would adopt the same approach as that taken by his Honour i.e. to have regard to the reasons as a whole. It is also important, in my opinion, to have regard to the context of the particular part of the reasons in which this sentence occurred.

29 I acknowledge that to insert the word "not" into a sentence is a major, indeed radical, step as a matter of construction.

30 However, in paragraph numbered 32 the Tribunal first dismisses the incident at the boarding house as one which did not indicate that the appellant was at risk [I interpolate here to express the view that the reference to "a risk" was another typographical error which should have read, as his Honour found, "at risk"]. It would be, to say the least, odd to follow such a rejection with the last sentence, as typed, in paragraph numbered 32.

31 Next, the wording of that sentence is strange with its reference to a single incident and emphasis by the use of the words "does serve".

32 More importantly, the sentence, as typed, is totally inconsistent with the Tribunal’s conclusions expressed in paragraphs 36, 37 and 38 of its reasoning.

33 Mr McInerney took us to the familiar line of authorities including Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 concerning the manner in which the Court should approach the Tribunal’s reasons.

34 However, in my view, it is quite clear from the matters to which I have referred above that the relevant sentence suffered from a typographical error by omitting the word "not". The situation is analogous, in my opinion, to that which occurred in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297.

35 For those reasons I would reject ground 2.

CONCLUSION

36 For the foregoing reasons I would dismiss the appeal with costs.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.

Associate:

Dated: 2 July 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1826 OF 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	S14/2002 APPELLANT
AND:	REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SECOND RESPONDENT

JUDGES:	CARR, TAMBERLIN AND LANDER JJ
DATE:	2 JULY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

TAMBERLIN J:

37 I agree with the reasons and orders proposed by the Honourable Justice Carr in this matter.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated: 2 July 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1826 OF 2003

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

BETWEEN:	S14/2002 APPELLANT
AND:	REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SECOND RESPONDENT

JUDGES:	CARR, TAMBERLIN AND LANDER JJ
DATE:	2 JULY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

LANDER J:

38 I also agree with the reasons and orders proposed by the Honourable Justice Carr in this matter.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:

Dated: 2 July 2004

Counsel for the Appellant:	Mr A J McInerney (pro bono publico)
Counsel for the Respondent:	Mr M Wigney
Solicitors for the Respondent:	Australian Government Solicitor
Date of Hearing:	20 May 2004
Date of Judgment:	2 July 2004