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MIGRATION - Protection visa application - whether not hearing oral evidence of witness breach of natural justice - whether Tribunal required to give applicant notice of country information.

VJAF v Minister for Immigration [2004] FMCA 794 (12 November 2004)

VJAF v Minister for Immigration [2004] FMCA 794 (12 November 2004)
Last Updated: 30 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VJAF v MINISTER FOR IMMIGRATION
[2004] FMCA 794




MIGRATION - Protection visa application - whether not hearing oral evidence of witness breach of natural justice - whether Tribunal required to give applicant notice of country information.




Judiciary Act 1903 (Cth), s.39B

Migration Act 1958, s.420

VBAC v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCA 205

R v The Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) 122 CLR 546

VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 573

VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 186

Applicant:
VJAF




Respondent:


THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


MZ 656 of 2003




Delivered on:


12 November 2004




Delivered at:


Melbourne




Hearing date:


4 February 2004




Judgment of:


Phipps FM




REPRESENTATION

Counsel for the Applicant:


Mr Krohn




Solicitors for the Applicant:


Clothier Anderson & Associates




Counsel for the Respondent:


Ms Moore




Solicitors for the Respondent:


Clayton Utz




ORDERS

(1) The application is dismissed.

(2) The Applicant pay the Respondent's costs fixed at $6,000.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE



MZ 656 of 2004

VJAF



Applicant

And

THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
Introduction

1. The applicant seeks judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") given on 20 September 2002 affirming a decision of a delegate of the respondent to refuse to grant a protection visa to the applicant. Review is sought pursuant to s.39B of the Judiciary Act 1903 (Cth).

2. The applicant is a national of Cambodia. He entered Australia on approximately 18 April 2000 with his wife, one son and one daughter. Three other children remained in Cambodia. On 23 May 2000, the applicant made an application for protection visas for himself, his wife, son and daughter.

3. On 31 July 2000, a delegate of the respondent refused to grant the protection visas to the applicants. On 18 August 2000, the applicant and his family members applied to the Tribunal for review of the delegate's decision. On 29 August 2002, the Tribunal affirmed the delegate's decision. Application to review the decision was filed in the Federal Court on 16 October 2002. On 30 January 2003 North J. transferred the application to the Federal Magistrates Court.

The applicant's claims

4. The applicant said that since the overthrow of Pol Pot in Cambodia, he had been a successful businessman. He said that his business interests prospered and made him wealthy. He said that in 1990 he sent his five children to be educated in Thailand.

5. He said that on 17 March 1997 he joined the Sam Rainsy Party (SRP) and that was when his trouble with the government started. Previously, he had made large donations to Hun Sen's People's Party because donations were expected and it was difficult to do business without making those donations but he had always opposed the corruption and arrogance of the ruling party officials. He claimed he believed that the SRP could make a difference to Cambodian life. He said that he genuinely believed the SRP could make a difference to Cambodian political and economic life. He said that he became prominent in the party and was appointed to its council.

6. He claimed that he was arrested and put in jail during the July 1997 coup. He was detained for three months. He said that he was interrogated and physically abused. He was released on 13 October 1997 and went back to his business and continued to support the SRP. He claimed that for the next six months he was followed by government agents who appeared to be trying to catch him doing something illegal.

7. The applicant said that on 28 September 1997, an election was called and he campaigned for the SRP. He said that the SRP won Parliamentary seats despite vote rigging by the government. He claimed that in October 1998, he supported the demonstration against vote rigging. He believed that this was the reason why he again came to the unfavourable notice of the government.

8. He claimed that on 8 April 1999, he was approached by Major-General Chea Dara and his soldiers and was told to stop criticising high figures in the People's Party. He was asked to defect to the People's Party. Next day he was kidnapped by people with rifles and in military uniform. He was pulled over whilst in his car, blindfolded, beaten and interrogated in a government office in the presence of Major-General Chea Dara. He claimed that fortunately the press came to know about his abduction and published his photograph in the paper.

9. He said that on 9 September 1999 he was driving in the province of Kampong Cham when two men on a motorcycle overtook his car and one of them fired at his car four times, forcing it off the road. He claimed that he drove to the local headquarters of the SRP who alerted the press and his story appeared in the "Voice of Khmer Youth" newspaper.

10. The applicant claimed that as a result he began to live a very reclusive life and began to plan to leave Cambodia. He went to the Australian Embassy and he and his wife were given visitors visas and two of his children received student visas. He claimed that he was afraid to leave Cambodia by air as he was told by a police inspector in charge of criminal matters that he would be killed if he attempted to leave the country, so he travelled by road to Thailand. He did not seek asylum in Thailand because he did not trust the Thai government to protect him.

11. The applicant submitted two reports which he claimed were printed in the newspaper "Voice of Khmer Youth". The first item is a report, with an accompanying photograph, stating that the applicant had been kidnapped and imprisoned the day after his meeting with Major-General Chea Dara because of his support for the SRP. The second item reports that the applicant's car had been shot at in September 1999 in an attempt to kill the applicant.

The Tribunal's decision

12. The Tribunal accepted that the applicant and his family were nationals of Cambodia, and assessed their claims against Cambodia as their country of nationality.

13. The Tribunal accepted that the applicant had in the past made donations to the government party. It accepted that in March 1997, he became a member of the SRP and is now a member of the Victorian branch of the SRP. The Tribunal accepted that the applicant helped the SRP campaign for the 1988 election and that he belonged to the Council of the SRP.

14. The Tribunal did not accept that the applicant had been arrested, detained and tortured between July and October 1997. It relied largely on United States State Department's reports which showed no reports of officials or activists of the Khmer Nation Party (as the SRP was called at the time) being arrested in July 1997. The KNP president, Sam Rainsy, and other officials chose to leave Cambodia to ensure their safety. The Tribunal said it found the applicant's explanation was unsatisfactory as to why he did not leave.

15. The Tribunal accepted that in April 1999 the applicant may have had an argument with Major-General Chea Dara over political matters but did not accept that the applicant was kidnapped and detained for three days and treated harshly. The Tribunal found no reference to the claimed incident in information prepared by foreign governments or by non-government organisations or by the SRP itself. It said that the only evidence submitted by the applicant in support of this claim was a newspaper article which the applicant said was published by the "Voice of Khmer Youth". The Tribunal rejected the authenticity of this document.

16. The Tribunal said it was not satisfied that the attack in September 1999 was carried out by Cambodian authorities because they were opposed to the applicant's political opinions. The Tribunal said it was satisfied that the shots fired at the applicant's car in September 1999 were acts of criminal violence unconnected to the applicant's political opinions.

17. The Tribunal was not satisfied that the applicant was in hiding from 19th September 1999 until his departure from Cambodia in March 2000. Overall, the Tribunal found that the applicant was not persecuted in the past for reason of his political opinion or for any other convention reason. Nor did it consider that there was a real chance he would be persecuted by reason of his political opinion or for any other convention reason if he returned to Cambodia now or in the reasonably foreseeable future.

Grounds of Application

18. The applicant relied on two grounds: denial of natural justice because the Tribunal had not taken evidence from the editor of the "Voice of Khmer Youth"
; and denial of natural justice and breach of statutory requirements because the Tribunal did not bring country information to the attention of the applicant which it obtained after the date of hearing and before giving its decision. The Tribunal heard oral evidence from the applicant on 8 February 2001 and from the applicant and his wife on 2 March 2001. The decision was delivered on 29 August 2002.

19. A considerable body of written material was submitted to the Department and the Tribunal. It included copies of two reports which the applicant said were printed in the newspaper &
quot;Voice of Khmer Youth" on 9 April 1999 and 9 September 1999. As already described, the first is a report, with an accompanying photograph, stating that the applicant had been kidnapped and imprisoned in the day after his meeting with Major-General Chea Dara because of his support for the SRP. The second report was that the applicant's car had been shot at in September 1999 and an attempt made to kill the applicant.

20. The documents originally submitted were photocopies. The Tribunal had them examined by a document examiner who doubted their authenticity. The applicant was legally represented throughout. His representatives retained a document examiner who disputed the first examiners conclusions. The applicant then obtained what he said were originals of the two newspapers and the document examiners conducted further examinations. Again, the document examiners produced conflicting reports.

21. The applicant submitted to the Tribunal two written statements by the editor of the newspaper that the articles were authentic.

22. Between the hearings in February and March 2001, and the handing down of the decision on 29 August 2002, there was a considerable body of correspondence between the Tribunal and the applicant's solicitors. In part, this was sending to the applicant's solicitors the reports of the Department's document examiner and arrangements to make the newspapers available for examination by the applicant's document examiner in December. The correspondence dealt with the question of evidence by the editor of the newspaper as follows:

a) In a letter dated 23 July 2001 from the applicant's solicitors to the Deputy Registrar of the Tribunal, the solicitors said:

I n addition, I am instructed to advise you that we wish to nominate Mr Ou Savann as a witness to give evidence by telephone to the Tribunal concerning the documents. Mr Ou Savan, as the Tribunal would be aware, is the editor (and Executive Director) of the newspaper "The Voice of Khmer Youth". We are seeking a further statement from Mr Ou Savan but there are some difficulties associated with locating him as his newspaper has to move around a lot as it is subject to grenade attacks from government agents (the previous editor was shot dead).

I hope to have that fresh written evidence to the Tribunal within the next three weeks.

b) In a letter dated 31 July 2001 from the Deputy Registrar to the applicant's solicitors, the Deputy registrar said:

T he Tribunal does not consider it necessary to interview Mr Ou Savan by telephone about the newspaper articles, as the applicant has already submitted a written statement from Mr Ou Savan on this matter. If the applicant wishes to submit further evidence from Mr Ou Savan, he should do so within three weeks of the date of this letter.

c) In a letter dated 7 August 2001 from the applicant's solicitors to the Deputy Registrar, the solicitors said:

Please find enclosed a further statement dated 24 July 2001, signed by the Editor of the Voice Khmer Youth, Mr Ou Savan, together with an English translation.

In my submission, if the Tribunal still has doubts about the authenticity of the newspaper articles, it has an obligation to allow my client to nominate the editor as a witness to give oral evidence by telephone. A failure by the Tribunal to do this would constitute a denial of natural justice.

d) By letter dated 4 September 2001 from the applicant's solicitors to the Deputy Registrar, the solicitors enclosed a report prepared by the document examiner retained on behalf of the applicant. That report contained an examination of the Department's report and disputed the conclusion of that report about the authenticity of the document. The letter then said:

Given the Editor's willingness to testify about this matter to the Tribunal and the Tribunal's refusal to allow him to do so, I do not believe it is now open for the Tribunal to find that the newspaper articles are bogus or forged.

In my submission, if the newspaper articles are genuine, then [the applicant] has shown, on the balance of probabilities, but there is a real risk of persecution should he return to Cambodia.

e) By a letter dated in October 2001, the Deputy Registrar sent to the applicant a further report of the Department's document examiner;

f) In a letter dated 9 October 2001 from the applicant's solicitors to the Deputy Registrar, the solicitors advised that they had sent a further report to the applicant's document examiner. The solicitors said:

In addition, I reiterate my clients offer to fly the editor of the newspaper to Australia to give evidence to the Tribunal. Certainly, I think the Tribunal should avail itself of a further oral hearing if it maintains its doubts about this newspapers, as to fail to do so in the particular circumstances would be to work a grievous injustice against my client.

g) By letter dated 30 October 2001 from the applicant's solicitors to the Deputy Registrar, the solicitors advised that they had sent the Department's document examiner's comments to the applicant's examiner for his further comments. The solicitors then said:

Please find enclosed, Mr Westwood's further comments.

I reiterate my clients offer to fly the editor to Australia to give evidence on oath before the Tribunal.

h) The final piece of correspondence before the handing down of the decision was a letter dated 24 July 2002 from the Deputy Registrar to the applicant's solicitors. That letter said that the member was currently reviewing the tapes of the two hearings. The letter said:

The member intends to finalise the decision by the end of August. The member does not require any further evidence, but will take into account any information the applicant may submit prior to finalising the decision.

23. The Tribunal said this about the newspaper reports:

The Tribunal has considered the reports of the Document Examiner and the examiner nominated by the applicant in respect of whether or not the article was part of the original content of the paper. The Document Examiner was consulted on three occasions, and on each occasion expressed the view that the article could not be considered to be reliable. The independent examiner concluded that the available evidence did not provide more support for the hypothesis that the article was not genuine than for the hypothesis that it was genuine. In view of the differences of opinion between the two experts, the Tribunal is not prepared to make a finding based on the technical examination that the article has been substituted at a later date, but neither is the Tribunal prepared to accept that the genuineness of the article is supported by the technical examination.

The Tribunal has had regard to the evidence of the newspaper editor, provided in two separate statements, that the article was published by his newspaper on 9 April 1999 as the applicant has claimed. The Tribunal does not consider that the applicant has been disadvantaged because the Tribunal did not take further evidence from the editor by telephone or in person.

However, taking into account the inconsistency in the dates submitted by the applicant in his protection visa application (which the applicant initially confirmed as accurate at the hearing) concerning his kidnapping and the date on which the newspaper was published; the implausibility of the "Voice of Khmer Youth" being present at a meeting between the applicant and Major-General Chea Dara; the contrived content of the article, which appears to have been written for the purpose of providing support of the applicant's claim; the Document Examiner's conclusion that the article should be considered unreliable and the failure of the independent examination to rule out the possibility that it was not part of the original newspaper, the Tribunal has concluded that the newspaper article dated 9 April 1999 is not genuine. The Tribunal has had regard to the newspaper editor's testimony that the article was published on 9 April 1999, and notes that the independent examiner concluded that the technical examination did not show that the article was not genuine and that there was support for the hypothesis that it was genuine and it was therefore wrong to conclude that the article was unreliable, but has nevertheless the Tribunal has concluded that these factors do not sufficiently outweigh the concerns described above to satisfy the Tribunal that the article is genuine. The Tribunal is therefore not prepared to accept that the newspaper article is evidence which supports the applicant's claim to have been kidnapped in April 1999 by men in military uniform, detained for three days and harshly treated.

24. The applicant's submission on natural justice was this. The Tribunal did not accept that a meeting between the applicant and Major-General Chea Dara took place, and did not accept that the applicant was kidnapped in April 1999. It did not accept that the attack in which the applicant's car was forced off the road in September 1999 as a result of political reasons. An important part of the applicant's evidence was the newspaper articles. The Tribunal did not accept that the articles were genuine. The editor of the newspaper was a material and important witness on the issue of the genuineness of the articles. The editor of the newspaper was a material witness concerning matters the Tribunal gave as its reasons for rejecting the newspaper articles. One is the implausibility, as the Tribunal found, of the "Voice of Khmer Youth" newspaper being present at a meeting between the applicant and the Major-General. The editor might be able to provide an explanation. He should be able to give evidence of how the information was obtained and who took the photograph which accompanied the article. Another is the Tribunal's finding about the contrived content of the article. The editor could give evidence about how the subject matter of the articles was obtained. It was submitted that the Tribunal had rejected the editor's evidence without taking up the opportunity to assess the demeanour of the editor as a witness and test the witness by questioning him.

25. The submissions for the respondent referred to be statutory provisions about the conduct of hearings before the Tribunal and the significance of the newspaper articles to the Tribunal's decision.

26. Section 420 of the Migration Act 1958 provides:

(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(2) The Tribunal, in reviewing a decision:

(a) is not bound by technicalities, legal forms or rules of evidence; and

(b) must act according to substantial justice and the merits of the case.

27. Section 425 provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues under review. The invitation must include notice of the date, time and place the applicant is scheduled to appear (s.425A) and that the applicant is invited to appear to give evidence.

28. Subsection 426 (2) provides that the applicant may, within seven days after being notified, give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from the person or persons named in the notice.

29. Subsection 426 (3) provides that if the Tribunal is notified by the applicant that the applicant wants it to obtain oral evidence from a person, the Tribunal must have regard to the applicant's wishes but it is not required to obtain evidence (oral or otherwise) from a person named in the applicant's notice.

30. The respondent submitted there was no express statutory requirement of any kind imposed on the Tribunal to obtain or consider obtaining oral evidence from the editor. Alternative submissions were put. First, on a strict reading of s.426, any notification by the applicant that he wanted the Tribunal to obtain oral evidence was required to be given seven days after receiving a notice of invitation. The notice of invitation to appear related to the hearing which was held in February and March 2001. It was submitted there was no statutory provision which required the applicant to be invited to a further hearing after an invitation to comment has been sent post to the conclusion of the hearing. It was submitted that there was nothing in the act that requires the Tribunal to re-open the hearing following response to notification of information pursuant to s.424A. The submission referred to VBAC v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCA 205 where at [30-31] Ryan J. said that s.425 required only one hearing.

31. The alternative submission is that even if notification that the applicant wanted an oral hearing could be given more than seven days after the invitation to appear, the Tribunal had complied with its obligations. Section 426(3) does not require the Tribunal to have an oral hearing. It must have regard to the applicant's wishes but it is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice.

32. The issue about the authenticity of the newspaper reports was raised by the Tribunal on 9 March 2001 by a letter which advised that the Tribunal had information, a report by the Department's Document Examination Unit on the newspaper articles, and inviting comment. The report was enclosed. The first statement of the editor was provided to the Tribunal with a letter dated 27 March 2001 from the applicant solicitors. The correspondence referred to above then followed.

33. The respondent's submission is that the Tribunal did all that was required of it.

34. As to what is required to afford natural justice, the High Court said in R v The Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) 122 CLR 546 at 552-553:

But it must be borne in mind that these principles are not to be found in a fixed body of rules applicable inflexibly at all times and in all circumstances. Tucker L.J. said in Russell v. Duke of Norfolk (1):

"The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth. "This passage was approved by the Privy Council in University of Ceylon v Fernando (2), and was used by Kitto J. in Mobil Oil Australia Pty. Ltd. V Federal Commissioner of Taxation (3). Thee his Honour observed:

"What the law requires in the discharge of a quasi-judicial function is judicial fairness. . . .What is fair in a given situation depends upon the circumstances."

We agree with the foregoing statements of the relevant law.

It is plain that when it is necessary to consider a question of fairness in relation to a tribunal the whole of the circumstances in the field of the inquiry are of importance.

35. The statutory provisions prescribing the Tribunal's procedures contain a discretion to decide whether or not the Tribunal will hear oral evidence from any particular witness. The applicant was given notice that the Tribunal had under consideration the authenticity of the newspaper reports. The applicant had the opportunity to and did, through his solicitors, put submissions to the Tribunal about why it should hear the oral evidence of the editor. The Tribunal, in its reasons, dealt with the question of whether the oral evidence of the editor would have assisted. It said that it did not consider that the applicant was disadvantaged because the Tribunal did not take further evidence from the editor by telephone or in person.

36. Given the Tribunal's discretion about taking oral evidence, it was for the Tribunal to decide whether oral evidence from the editor would assist. The Tribunal has considered the issue as its reasons show. It has decided that the oral evidence was not necessary. The point at which the Tribunal was required to give the applicant natural justice in relation to the editor's evidence was when it was deciding whether or not it would hear oral evidence from the editor. The applicant, through his solicitors, was given the opportunity to make submissions about this point. Submissions were made and the Tribunal considered them. I do not consider that there has been a breach of natural justice.

37. The second complaint by the applicant about the Tribunal's decision is the denial of natural justice and breach of statutory requirements because the Tribunal did not bring to the attention of the applicant the country information it had obtained after the date of hearing and before giving its decision.

38. At the hearing, the Tribunal discussed with the applicant the country information reports about the situation in Cambodia and the treatment of members of the SRP, in particular, that they were not persecuted in Cambodia. The hearing was in February and March of 2001 and the decision was handed down in August 2002. The Tribunal considered reports which had become available since the hearing to ensure that the assessments it discussed with the applicant in March 2001 were still valid.

39. The Tribunal considered whether the recent reports indicated that the situation for SRP members had deteriorated since the applicant's departure from Cambodia and whether there was a real chance that the applicant would be persecuted for reason of his political opinion if he returned to Cambodia and continued to be an active and high-profile member of the SRP. The Tribunal considered that the reports showed that the situation for SRP members remained much the same as described in the information discussed with the applicant at the hearing and that the harassment and threats, more recently directed at SRP members, were not cumulatively or separately of such severity as to constitute persecution. The complaint is that the applicant was not given the opportunity to comment on this information.

40. The second ground alleges a breach of s.424A of the M igration Act. It provides:

(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.

(2) The information and invitation must be given to the applicant:

(a) except where paragraph (b) applies--by one of the methods specified in section 441A; or

(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.

(3) This section does not apply to information:

(a) 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; or

(b) that the applicant gave for the purpose of the application; or

(c) that is non-disclosable information.

41. The issue is whether the information used by the Tribunal comes within the exception in s.424A(3).

42. In VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 573, Marshall J. assessed the applicant's claims against the subsection by undertaking three tasks:

i) identifying exactly what the "information" was;

ii) characterising whether the information was or was not about the applicant in particular; and

iii) considering whether the information was "just about a class of persons of which the applicant to the dot is a member"

43. His Honour's decision was reversed on appeal (on a ground which had not been argued at first instance), but the Full Court endorsed his approach to the subsection (VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74, at [20]).

44. In VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 186, Kenny J. said at [50]:

In reaching this conclusion, it is helpful to consider other instances in which a similar question has arisen. One example is country information. 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) of the Act: see, e.g., Tharairasa v Minister for Immigration & Multicultural Affairs (2000) 98 FCR 281 per Carr J; Pannasara v Minister for Immigration & Multicultural Affairs [2001] FCA 570 per Carr, Lindgren and Katz JJ; Akpata v Minister for Immigration & Multicultural Affairs [2001] FCA 402 per O'Loughlin J; Islam v Minister for Immigration & Multicultural Affairs [2001] FCA 430 per RD Nicholson J; Kola v Minister for Immigration & Multicultural Affairs [2001] FCA 630 per Mansfield J; and "W104/00A" v Minister for Immigration & Multicultural Affairs [2001] FCA 771 per Lee J. Contrast VEAJ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 678 ("VEAJ of 2002"), at [36]-[38], and [43] per Gray J.

45. There is some debate in the cases that in considering whether the information comes within subs.424A(3), a narrow or broad view should be taken of the information. That is, whether the information should be looked at as it was used by the Tribunal or looked at broadly.

46. I do not consider that it matters in this case. The reports that the Tribunal considered subsequent to the hearing related to elections which had been held in Cambodia and political activity. These showed incidents of political violence associated with elections. Some local activists of the SRP were killed. The United Nations Commissioner for Human Rights determined that at least three of the killings were politically motivated. Separately from the local elections, the Tribunal referred to reports of SRP activists being threatened and harassed.

47. The Tribunal used the information to decide whether there was a threat to SRP officials such as the applicant. It decided there was not such a threat as to give rise to a well founded fear of persecution. Therefore, the information, in the narrow sense, is information about the treatment of SRP officials in Cambodia. In the broad sense, it is information about political violence generally in Cambodia

48. Looked at either way, the information is not about the applicant in particular. It is just about a class of persons of which the applicant is a member. The class is either SRP officials, in the narrow sense, or politically active people in Cambodia, in the broad sense. Either way, the information is concerned with how people of that class are treated by the government in Cambodia, and that is all it is about.

49. The information is within sub-s.424A(3). Therefore, the Tribunal was not required to inform the applicant about it. Since the Tribunal has complied with the required procedure, there is no breach of natural justice.

50. The application is dismissed.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate: Sherryn Kwong

Date: 24th November 2004
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