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MIGRATION - Review of decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister refusing to grant a protection visa - no reviewable error disclosed - application dismissed.

VFAP v Minister for Immigration [2003] FMCA 222 (6 June 2003)

VFAP v Minister for Immigration [2003] FMCA 222 (6 June 2003)
Last Updated: 21 July 2003

Reasons amended pursuant to Rule 16.05(2)(e) of the

Federal Magistrates Court Rules 2001:

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VFAP v MINISTER FOR IMMIGRATION
[2003] FMCA 222



MIGRATION - Review of decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister refusing to grant a protection visa - no reviewable error disclosed - application dismissed.



Judiciary Act 1903 (Cth)

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Applicant A v Minister for Immigration & Ethnic Affairs & Anor (1997) 190 CLR 225

"Z" v Minister for Immigration & Indigenous Affairs (1998) 90 FCR 51

S157/2002 v Commonwealth of Australia (2003) HCA 2

Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Applicants S134/2002 (2003) HCA 1

Craig v South Australia (1995) 184 CLR 163

Minister for Immigration and Multicultural and Indigenous Affairs v Eshetu (1999) 197 CLR 611

Erduran v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 814

Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225

R v Hickman: ex parte Fox and Clinton (1945) 70 CLR 598

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 193 ALR 449

Applicant:
VFAP



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


MZ 991 of 2002



Delivered on:


6 June 2003



Delivered at:


Melbourne



Hearing Date:


9 April 2003



Judgment of:


Hartnett FM


REPRESENTATION

Counsel for the Applicant:


Mr Gibson



Solicitors for the Applicant:


Trumble Szanto Lawyers



Counsel for the Respondent:


Ms Moore



Solicitors for the Respondent:


Blake Dawson Waldron



ORDER

The Court orders that:

(1) The application is dismissed.

(2) The applicant pay the respondent's costs to be taxed pursuant to the Federal Court Scale of Costs in default of agreement.

(3) It is certified that pursuant to Rule 21.15 of the Federal Magistrates Court Rules this matter reasonably required the attendance of counsel as advocate.

Reasons amended pursuant to Rule 16.05(2)(e) of the

Federal Magistrates Court Rules 2001:

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE


MZ 991 of 2002

VFAP


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. This matter was transferred to the Federal Magistrates Court by order of Merkel J on 16 September 2002.

2. During the hearing, the respondent was granted leave to file and serve further written contentions on or before 16 April 2003. No further contentions were filed.

3. The applicant filed her application made pursuant to s.39B of the Judiciary Act 1903 (Cth) and ss.475A, 477, 478 and 479 of the Migration Act 1958 (Cth) (the Act) on 1 August 2002. The applicant applied to review a decision of the Refugee Review Tribunal (RRT) made on 13 June 2002 and handed down on 5 July 2002. That decision affirmed a decision of a delegate of the Minister to refuse the applicant a protection visa under the Act. Details of the applicant's claim are set out in paragraph C of her application and are as follows:-

DETAILS OF CLAIM

1. The decision was made in breach of an indispensable condition or an essential pre-condition to or an inviolable limitation or restraint upon the power conferred upon the Tribunal and its jurisdiction necessary for the existence of the satisfaction required by s.65 of the Act to affirm or set aside the decision of the delegate not to grant a protection visa. The Tribunal exceeded its jurisdiction and/or constructively failed to exercise jurisdiction in that:

i) ....

ii) it misinterpreted and/or misunderstood the test of well-founded fear and/or the application of the real chance test

a. ....

b. in finding that the essential and significant reason for the Applicant's husband's prosecution, sentence and imprisonment was not his membership of a particular social group consisting of former associates of Suharto

c. in recognising that the corruption laws may have been applied unevenly, failed to appreciate that a law of general application may be enforced in a persecutory manner

d. by failing to deal with the issue of the conditions under which the Applicant's husband was serving his sentence, failed to appreciate that these could be persecutory and be imposed for a Refugees Convention reason ("the Convention")

e. in assessing the Applicant's fears in her own right, imposed a sole purpose test to establish the lack of a Convention nexus

f. in assessing the well-foundedness of the Applicant's fears and acknowledging the possibility of unfairness in any trial process that might be instituted against her, failed to appreciate that this could be persecutory of her and affect her for a Convention reason.

2. Further or in the alternative, the Tribunal committed an error of law constituting jurisdictional error on the face of the decision.

(a) The Applicant refers to the matters raised as demonstrative of the Tribunal's:

(i) asking itself the wrong questions;

(ii) identifying the wrong issue or issues;

(iii) ignoring of relevant material

in its treatment of the Applicant's claims of persecution on the grounds of actual or imputed political opinion, race or membership of a particular social group.

History

4. On the hearing proceeding before me the applicant abandoned the ground as stated under para.1 (i)and (ii)(a) of her claim as set out in paragraph C of the application filed 1 August 2002.

5. The applicant was born on 12 April 1942 and is now aged 61 years. She is a citizen of Indonesia. On 27 August 1998 the applicant arrived legally in Australia as a visitor on a passport issued in her own name. On 27 August 1999 the applicant made application for a protection visa. On 12 June 2001 a delegate of the Minister refused to grant a protection visa and on 16 July 2001 the applicant sought review of that decision. On 13 June 2002 the RRT affirmed the decision of the delegate.

6. The applicant was married on 31 December 1974 to her husband, Mr MH, born 24 February 1931. Mr MH is also a citizen of Indonesia.

7. The parties have three children of their marriage - STH born 24 July 1980; MSH born 12 June 1982 and MIH born 20 December 1990. All three children currently reside in Australia as holders of student visas.

8. The applicant first entered Australia on 27 August 1998 on her own passport. She entered as a visitor who was visiting her children. On

27 August 1999 the applicant lodged an application for a protection (class AZ) visa with the Department of Immigration and Multicultural Affairs.

9. The applicant's husband, Mr MH, was one of the richest men in Indonesia and was Minister for Trade in the Suharto Cabinet just prior to the time when President Suharto stood down from office in May 1998. The applicant wife is ethnic Indonesian and muslim. Her husband is a converted Chinese muslim. Mr and Mrs MH were members of the Golkar political party in Indonesia. The applicant's husband was detained in custody on 28 March 2000. Mr MH was prosecuted for criminal offences (including corruption charges) and was sentenced to a period of many years imprisonment. He remains in Indonesia in prison.

10. The Department of Immigration and Multicultural Affairs in considering the application for a protection visa contacted the Australian embassy in Jakarta asking for confidential advice on the matters raised by the applicant. The questions asked by the Department of Foreign Affairs and Trade at the Australian embassy in Jakarta were put to the applicant together with the Department of Foreign Affairs and Trade response. That response included that there was no evidence at that time to show that Mr MH had been unfairly detained or charged and that to the contrary, there appeared to be considerable evidence supporting the charges he faced. On 27 November 2000 Country Information Service noted Mr MH had been afforded favourable treatment by the authorities, being held at the Attorney General's office rather than a prison cell and his conditions were such that he had been able to live comfortably and continued to conduct personal business from his place of detention.

11. With respect to the applicant, the Department responded:

There is every possibility that [the applicant] would potentially be liable for prosecution as a result of her involvement in her husband's business or as a result of her own business activities. There is no indication that any proceedings against [the applicant] would not be based on valid legal grounds, notwithstanding that her husband's notoriety may make her a particularly attractive target for government prosecutors.

In light of the treatment afforded her husband to date, we do not believe that [the applicant] is likely to face an additional punishment or penalty motivated by political animosity.

The applicant was given an opportunity to respond to that information.

12. Before the delegate, the applicant made it clear that her claim to have a well-founded fear of persecution was by reason of her membership of a particular social group and that that social group was characterised in two ways:

i) the family of BH;

ii) cronies/associates of the Suharto regime.

13. The Central Jakarta District Court sentenced Mr MH to two years in jail and ordered the repayment of losses to the State and the payment of a fine. The Jakarta High Court on appeal tripled the jail term after it found that the State suffered losses of US$243 million. The initial sentence related to Mr MH being found guilty of misusing US$75 million in funds belonging to the Ministry of Forestry.

14. On 30 March 2001 the applicant's then migration agents wrote to the delegate advising that Mr MH had been transferred from a lower security prison to a prison island in Central Jakarta. The prison island was said to be notorious, holding some 150 inmates who were mainly convicted murderers, robbers and drug offenders. The reasons given by the government for this transfer were said to be a deterrent to other corruptors; to make it more difficult for escape; and to protect Mr MH from any possible threat coming from his fellow inmates. It was also said that inmates were subject to jail terms of in excess of 5 years.

The RRT decision

15. The applicant's claims before the Tribunal were not put on the basis that her husband faces a real chance of being persecuted for political acts he has committed. Her claims were put on the basis that Mr MH faces a real chance of being disproportionately punished on political grounds and exposed to excessive or arbitrary punishment whilst undergoing a six-year sentence for crimes, which it was submitted, were the result of a selective prosecution to which he was subjected as a scapegoat for the excesses of the Suharto regime. It was submitted by the applicant that her husband was prosecuted as a pretext for punishing him and that he had been singled out from a group of wealthy non-family associates of former President Suharto rather then simply being prosecuted and liable to face punishment in conformity with the general law of Indonesia - this amounted to discriminatory persecution. The treatment that has befallen her husband was then placed in the context of the likely treatment of the applicant by reason of her association and affiliation with her husband.

16. The applicant made written submissions through her migration agent both before and following the hearing at which the applicant attended and gave oral evidence. Her migration agent appeared and made submissions on her behalf. That hearing occurred on 8 February 2002. By letter of 5 July 2002 the RRT advised the applicant that the Tribunal had affirmed the decision not to grant a protection visa. The Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore, the Tribunal concluded that the applicant did not satisfy the criterion set out in s.36(2) of the Act for a protection visa.

17. Under s.65(1) of the Act a visa may be granted only if the decision-maker is satisfied that the prescribed criteria for the visa have been satisfied.

18. Subsection 36(2) of the Act relevantly provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol as those expressions are defined in s.5(1) of the Act.

19. Further criteria for the grant of a protection (class XA) visa subclasses 785 and 866 are set out in Parts 785 and 866 of Schedule 2 to the Migration Regulations 1994 (Cth) respectively.

20. Article 1A(2) of the Refugees Convention defines a refugee as any person who:

...owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

21. Clearly the applicant is outside her country. Under s.91R(1) of the Act, the persecution feared by the applicant must involve:

Serious harm to the applicant and systematic and discriminatory conduct. That persecution may be directed against the person as an individual or as a member of a group. The persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition and although the persecution feared need not be solely attributable to a Convention reason, a Convention reason or reasons must constitute the essential and significant reason for the persecution feared.

The applicant's fear of persecution for a Convention reason must be a -

well-founded fear.

22. In hearing the matter the Tribunal noted of particular relevance the application of the laws of Indonesia relating to corruption. The Tribunal referred to:-

a) the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status at paragrah 56:

Persecution must be distinguished from punishment for a common law offence. Persons fleeing from prosecution or punishment for such an offence are not normally refugees. It should be recalled that a refugee is a victim - or potential victim - of injustice, not a fugitive from justice; and

b) the High Court decision in Applicant A v Minister for Immigration & Ethnic Affairs & Anor (1997) 190 CLR 225 at 233 where Brennan CJ stated:

... the feared persecution must be discriminatory ... (it) must be "for reasons of" one of (the prescribed) categories. This qualification ... excludes persecution which is no more than punishment of a non-discriminatory kind for contravention of a criminal law of general application. Such laws are not discriminatory and punishment that it non-discriminatory cannot stamp the contravener with the mark of "refugee".

23. The Tribunal however went on to note (CB 244) that the principle that laws of general application fall outside the scope of the Convention is a qualified one and that for example -

Where laws of general application are selectively enforced, in that the motivation for prosecution or punishment for an ordinary offence can be found in a Convention ground, or the punishment is unduly harsh for a Convention reason, then Convention protection may be attracted. (CB 244)

24. The Tribunal then referred to the decision of Katz J in "Z" v Minister for Immigration & Indigenous Affairs (1998) 90 FCR 51, at 58 wherein he said referring to the decision in Applicant A:

"Their Honours did not identify those additional features which, in their view, would render enforcement by a country of one of its prohibitory criminal laws of general application persecution for a Convention reason. However, I infer that what they had in mind was either selective prosecutions under the relevant law, the criterion of selection of persons for prosecution being those persons' race, religion, nationality, membership of a particular social group or political opinion, or the imposition of punishments on persons convicted under the relevant law, such punishments being greater than they would otherwise have been by reason of the convicted persons' race, religion, nationality, membership of a particular social group or political opinion." (CB 244)

25. The Tribunal noted that the applicant's advisers first submission lodged in support of the application was dated 23 March 2000 and predated much of the trouble which was to come to the applicant's husband. In March 2000 he and two business associates were prohibited from leaving Indonesia because of alleged involvement in banking fraud, but at that time Mr MH was not under arrest although he and his companies were under close investigation. Subsequently, Mr MH was detained for a period of up to 20 days, extended for a further

40 days up to 26 May 2000. On 31 July 2000 the applicant's advisers provided further documents concerning the further extension of Mr MH's detention.

26. Both in submissions and oral testimony before the Tribunal the applicant's claims included that:

(a) she was threatened that she and her husband would be imprisoned if she did not sign documents urgently whilst living in Jakarta from February to August 1998 and when being visited by government officials;

(b) third parties in Australia threatened her with physical harm if she did not sign documents transferring assets to BPPN (the Indonesian government's restructuring agency);

(c) her husband advised her that it was necessary for her to sign documents to transfer assets to BPPN to avoid going to prison and that she considered she therefore signed documents under duress;

(d) whilst she had no knowledge of the affairs of her husband she believed that people within the Ministry of Justice think she had such knowledge and her husband was made a scapegoat for the actions of the Suharto regime;

(e) at the time of her application the applicant feared she would be interviewed, subjected to lengthy questioning, placed under house arrest, possibly charged with various offences of a criminal nature (all of which she denied) and that she may be tortured or imprisoned;

(f) the applicant believed her husband was receiving selective treatment for his political views and economic connections and that she would also be singled out if she were to return;

(g) the applicant formed part of a particular social group, namely the family of Mr MH and cronies/associates of the Suharto regime;

(h) Mr MH had been treated in a discriminatory way notwithstanding the transfer of assets to BPPN;

(i) Mr MH's transfer to a notorious prison was politically motivated;

(j) the applicant feared persecution in Indonesia because of her membership of a particular social group and her imputed political opinion;

(k) the applicant feared that if she were to return to Indonesia she would be imprisoned and treated unfairly once in custody and that this would happen in large part because she would be thought to know about her husband's financial dealings to a degree which she did not;

(l) there was evidence to suggest that Mr MH had been singled out for prosecution and that his Chinese ethnicity is a factor in what had happened to him;

(m) there was another particular social group to which it could be seen that the applicant belonged other than her family, namely the former associates of former President Suharto and that her involvement with these people in the past could also lead her to be imputed to have a political opinion against the new government.

27. In a further submission received by the Tribunal on 14 March 2002 and provided by the applicant following the release of the United States Department of State's report on human rights in Indonesia in 2001, in particular on what was reported about the right to a fair trial, the following was alleged:

1. That Mr MH had been selectively singled out to be charged and convicted and the penalty which had been imposed on him was not appropriate to the conviction. His relocation within the prison system was as a result of the intervention of the Justice Ministry.

2. The United States Department of State's 2001 report continued to express concern about the judiciary in Indonesia being subordinated to the Executive and about pervasive corruption. (CB 249)

28. That submission summarised the applicant's claims which were set out (CB 249-250) as follows:

(a) The applicant and her husband were both members of a particular social group of people who were associated with former President Suharto and his inner circle of cronies;

(b) The applicant, as a former businesswoman, was a member of this particular social group in her own right and independently of her husband;

(c) The penalty handed down to Mr MH was "grossly out of keeping with the charges for which he had been convicted"; there were no others who were similarly charged or convicted and he has been poorly treated in prison; he had been singled out because of his membership of a particular social group; and

(d) It was open to question whether a person in the position of the applicant could expect to receive a fair trial and a fair penalty and the government's failure to prosecute people suspected of perpetuating human rights abuses was "an indication that the legal system is firstly a lottery and secondly, is not to be trusted to provide impartial and consistent judicial decisions."

Tribunal findings

29. The RRT found on the evidence before it that Mr MH had been one of few who had been prosecuted and sentenced to imprisonment for corruption committed during the Suharto years. The Tribunal found however no persuasive argument that the charging and sentencing of Mr MH under Indonesian law was essentially and significantly because of his Chinese ethnicity. Nor did the Tribunal find that Mr MH's membership of a particular social group defined as former close associates of President Suharto was the essential and significant reason for what occurred. Rather, that his membership of such a particular social group was a factor which facilitated his accumulation of great wealth in a way which following political change led him to face prosecution and then imprisonment, but that his membership of such group was not the essential and significant reason for his prosecution and imprisonment. The Tribunal found that the nature and extent of the corruption in which Mr MH was found to have engaged was the essential and significant motivation for the charges which were made against him and for the sentence which was imposed.

30. The Tribunal found no information to indicate that the sentence Mr MH received was not appropriate to the conviction. The Tribunal found it therefore followed that any charges which the applicant might face upon return to Indonesia because of her actual or perceived knowledge of, or involvement in her husband's business affairs, did not engage the provisions of the Refugees Convention (CB 253-254).

31. The Tribunal considered the advice provided by the Department of Foreign Affairs and Trade in November 2000 and the applicant's evidence that government officials acted toward her in a threatening manner in 1998 but was unable to accept in the totality of the evidence about the applicant and her husband's treatment by the authorities that there was a real chance that the applicant would be physically harmed in the course of investigations (CB 254). The Tribunal did not consider that the evidence before it indicated that the essential or significant reason for business-related legal proceedings against the applicant which might follow her return to Indonesia was her membership of a particular social group defined as former close associates of President Suharto (CB 255).

32. The Tribunal did not consider that the evidence indicated that the people who are thought to not support the current government face persecution and referred to a far greater tolerance of different political views in Indonesia today than was evident under the Suharto regime. The Tribunal found nothing in the evidence that could give rise to a well-founded fear of persecution on the part of the applicant for reasons of her political opinion. The Tribunal member examined country information in this regard.

33. The Tribunal considered the applicant's claim that she could not be assured of a fair trial in the event that she were charged with breaches of Indonesian law. There was considerable country information before the RRT. The RRT referred to serious concerns about the fairness of the justice system in Indonesia with corruption of Judges and undue influence by the Government being evident. Such was of sufficient gravity to prompt the World Bank to require reform before extending further finance to Indonesia. However, the advice of the Department of Foreign Affairs and Trade that the law was applied fairly to Mr MH was noted by the Tribunal as was the lack of authoritative reports indicating that Mr MH was not treated fairly by the Courts. The Tribunal was unable to conclude from the evidence before it that unfairness, were there to be any in proceedings that might be initiated against the applicant, would be unfair because of a reason in the Refugees Convention (CB 255).

34. The Tribunal noted a possible reason which could feasibly lead the government to want to unduly influence the judiciary in relation to charges laid against the applicant if any were to be laid, would be the notoriety of the applicant's husband. However, the applicant's relationship to her husband it found could not lead her to face persecution when the treatment her husband had experienced had not been persecutory in nature, as the Tribunal concluded it was not. The Tribunal concluded that the more probable essential and significant reason for any intervention which might occur, intervention being by the government to influence the Court's handling of any charges against the applicant, would be the government's wish to demonstrate a commitment to deterring people from acting corruptly (CB 255-256).

Consideration

35. Following the High Court decision in S157/2002 v Commonwealth of Australia (2003) HCA 2, I must determine whether there was an error on the part of the Tribunal which would enliven the entitlement to an order under s.39B of the Judiciary Act 1903 (Cth) notwithstanding s.474 of the Act. The decision of the RRT is purported to be a privative clause decision within the meaning of s.474(2) of the Act.

36. That decision together with Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Applicants S134/2002 (2003) HCA 1 now represent the law concerning the extent to which migration decisions are reviewable and the effect of the privative clause. The High Court in S157/2002 determined that the privative clause provision in s.474 of the Act properly construed is a valid enactment. It found the proper construction of the Act, including s.474, imposed an obligation of providing a fair hearing as a limitation upon the decision-making authority; see per Gleeson CJ (at 37 to 38); Gaudron, McHugh and Gummow, Kirby and Hayne JJ (at 83); and per Callinan J (at 160).

37. The decision in S157/2002 is binding upon this Court. Section 474 of the Act must be read so as to refer only to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act.

38. The joint judgment in Plaintiff S157 is silent about what is the scope of jurisdictional error. Jurisdictional error has been defined in Craig v State of South Australia (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179 to include an administrative tribunal exceeding its power and thus committing jurisdictional error if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material, or in some circumstances, makes an erroneous finding or reaches a mistaken conclusion in a way that effects the exercise or purported exercise of the Tribunal's power.

39. The Tribunal is required to consider the elements of each of the claims made by the applicant and has done so in lengthy reasons. The Tribunal is empowered to exercise all of the powers and discretions that are conferred by the Act. That is, to consider a valid visa application made by an applicant and in doing so to have regard to all information required to be taken into account under the code of procedure laid down in Part 2, Division 3, subdivision AB of the Act. It is a matter for the Tribunal as to the probity it accords the various aspects of the evidence put before it (see Minister for Immigration and Multicultural and Indigenous Affairs v Eshetu (1999) 197 CLR 611). The Tribunal is not required to adopt an uncritical acceptance of any or all of the allegations put before it by the applicant.

40. Review of the "merits" is not within the scope of judicial review and it is not for this Court to reassess the factual material that was placed before the Tribunal. The Tribunal did consider the arguments put by the applicant and also considered independent country information which it particularised in respect of the applicant herself and her husband. All such information was put to the applicant. The Tribunal concluded that the applicant did not have a well-founded fear of persecution for a Convention reason.

41. The applicant argued that the Tribunal had misunderstood the test of persecution for a Convention reason and thus misunderstood the nature of the opinion it was required to form.

42. Further, the applicant argued that the Tribunal had failed to consider issues central to the applicant's claim and that such consideration was an essential precondition to performance of its duty under s.65 of the Act, in essence whether the applicant was a member of a particular social group in order to determine the central question of possible persecution by reason of membership of that group.

43. The applicant claimed that the finding that the applicant's husband's status as a former associate to President Suharto was a factor but not the essential and significant reason for his prosecution and imprisonment was flawed. The applicant submitted that in causation terms Mr MH's status as a former associated could not be other than the essential and significant reason within the terms of s.91R of the Act. Secondly, the applicant claimed that although the Tribunal accepted that so-called corruptions laws being laws of general application were applied in an uneven manner, the Tribunal failed to recognise that such a law may be enforced in a persecutory manner for a Convention reason. The applicant relied upon the observations of Grey J in Erduran v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 814. The applicant argued that in finding that any charges which the applicant might face on account of her relationship to her husband were not Convention related, the Tribunal fell into error. Further, the Tribunal did not address the issue of the conditions under which the applicant's husband was held and in failing to do so did not appreciate that these could be persecutorily imposed for Convention reasons. The applicant also argued that the Tribunal erroneously imposed a sole purpose test in assessing whether s.91R of the Act was satisfied with respect to the applicant's claim of membership of a particular social group.

44. Finally, the applicant argued the Tribunal failed to appreciate that the possibility of unfairness in any trial process that might be instituted against the applicant could be persecutory of her and affect her for a Convention reason.

45. Whatever the extent or scope of jurisdictional error of law, I find the Tribunal to have committed none here. There is no evidence that the Tribunal failed to take into account relevant evidence even though a failure by a decision-maker to do so does not necessarily amount to jurisdictional error. There is no evidence to suggest that the Tribunal failed to take into account a statutory consideration which the decision-maker was bound to take into account (see Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225 at 236-7, per Carr J with whom Sheppard and Gummow JJ agreed).

46. Throughout the Tribunal's reasons the Tribunal member kept returning to the identification of a Convention reason. Relevant material central to the applicant's claim was put before the Tribunal and considered by it. The Tribunal clearly considered whether the applicant was a member of a particular social group who by virtue of that membership was liable to be prosecuted and whether such prosecution could amount to persecution as a consequence of being a member of that particular social group. Had it not addressed this important element of the applicant's claim, then it would have committed a jurisdictional error of law.

47. The applicant conceded that it was necessary for the Tribunal to look to her husband's treatment. If there were a proper determination that he was not persecuted for a Convention reason then it would necessarily be that she also would not be subject to persecution for a Convention reason were she to face charges and imprisonment because of her own dealings and/or involvement in her husband's financial dealings.

48. The applicant's claim that her husband's status as a former associate of President Suharto - this being a particular social group - was the essential and significant reason for his prosecution and imprisonment was examined by the Tribunal. The Tribunal found this ground failed as it could not be established on the facts before the Tribunal that something other than Mr MH's corruption was the essential and significant reason for his being charged and found guilty with a penalty of imprisonment. Nor could the Tribunal find that the applicant belonged to any particular social group as claimed.

49. The Tribunal clearly considered persecution and its distinction from punishment for a common law offence. It also considered whether the punishment inflicted upon Mr MH was unduly harsh by reason of a Convention reason and whether it could be argued successfully that in this instance the laws of general application in Indonesia were selectively enforced against Mr MH with the motivation for prosecution and/or punishment being found in a Convention ground - in particular those grounds relied upon by the applicant. As findings of fact and being matters for it to determine, the Tribunal found no selective enforcement and no excessive punishment.

50. The Tribunal found the applicant did not fear persecution because of her membership or perceived membership of a particular social group as claimed. There was nothing in the husband/wife relationship of the applicant and Mr MH, nor of them as former associates of Suharto, that united them as a group with others or between themselves and which set them apart from society at large - which was perceived as such by other Indonesians - and which by virtue of, they feared persecution. Without more, the enforcement of Indonesian law is not persecution for a Convention reason. Ultimately, that is what the Tribunal found: The treatment of Mr MH involved the operation of law enforcement and was independent of membership of a particular social group. The same would apply to the applicant.

51. The decision is a privative clause decision. There has been - and indeed it is not argued to the contrary - a bona fide attempt by the decision-maker to exercise its power. The exercise of such power clearly related to the subject matter of the legislation and was reasonably capable of reference to the power given to the Tribunal to determine an application for a protection visa. The exercise of the power did not contravene an inviolable limitation upon the powers, duties and functions of the decision-maker and the decision was constitutionally valid (see R v Hickman: ex parte Fox and Clinton (1945) 70 CLR 598; NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 193 ALR 449).

52. I dismiss the application and shall order the applicant to pay the respondent's costs.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate: L.M.Dorian

Date: 10 June 2003
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