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Herijanto v Refugee Review Tribunal & Ors S97/1998 [ 2000] HCATrans 474  (17 August 2000)

Last Updated: 14 May 2009

IN THE HIGH COURT OF AUSTRALIA


Office of the Registry
Sydney No S97 of 1998


B e t w e e n -


HERIJANTO (As the Representative of the Plaintiffs listed in the Schedule)


Plaintiff


and


REFUGEE REVIEW TRIBUNAL


First Defendant


COMMONWEALTH OF AUSTRALIA


Second Defendant


SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS


Third Defendant


Office of the Registry
Sydney No S36 of 1999


B e t w e e n -


MUIN (As the Representative of the Plaintiffs listed in the Schedule


Plaintiff


and


REFUGEE REVIEW TRIBUNAL


First Defendant


COMMONWEALTH OF AUSTRALIA


Second Defendant


SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS


Third Defendant


Office of the Registry
Sydney No S89 of 1999


B e t w e e n -


NANCY LIE (As the Representative of the Plaintiffs listed in the Schedule


Plaintiff


and


REFUGEE REVIEW TRIBUNAL


First Defendant


SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS


Second Defendant


COMMONWEALTH OF AUSTRALIA


Third Defendant


GAUDRON J


(In Chambers)


TRANSCRIPT OF PROCEEDINGS


AT SYDNEY ON THURSDAY, 17 AUGUST 2000, AT 9.31 AM


(Continued from 19/7/00)


Copyright in the High Court of Australia


___________________


MR M.A. ROBINSON: If the Court pleases, I appear for the plaintiffs in all three matters. (instructed by Adrian Joel & Co.)


MR J. BASTEN, QC: If the Court pleases, I appear for the second and third defendants in each, thank you. (instructed by the Australian Government Solicitor)


HER HONOUR: Thank you. Yes, Mr Robinson.


MR ROBINSON: Your Honour, hopefully for the last time, we have a joinder motion. We filed in Court yesterday an affidavit of Adrian Phillip Joel, sworn 16 August 2000. We have done the other side the courtesy of asking whether or not their client would consent and they have said they have standing instruction not to consent. The people that we wish to join are named and set out in the annexure to Mr Joel’s affidavit.


HER HONOUR: There are a lot of them this time.


MR ROBINSON: There is about 200 or so, 240 I am instructed, your Honour. We have the statements of claim and the schedules in respect of each of these persons in Court in a moment, they are in my chambers, they are being brought here. They can be filed immediately, today. The draft orders that we ask your Honour to make are at annexure A.


HER HONOUR: Yes, thank you. Mr Basten, do you wish to say anything?


MR BASTEN: We do not consent, but we do not wish to say anything, your Honour.



HER HONOUR: Yes, thank you. Very well, there will be an order in accordance with the draft short minutes of orders marked “A” and annexed to the affidavit of Adrian Phillip Joel of 16 August 2000.


MR ROBINSON: If the Court pleases.


HER HONOUR: Yes.


MR ROBINSON: Your Honour, in relation to the main proceedings, I am happy to say that the parties have come a very long way since the last occasion and there is a document of agreed facts which can be handed up to your Honour. In addition to that I have a number of written submissions that I would ask your Honour to take into account, and I do not think from either side that any oral evidence will be required.


HER HONOUR: If that is correct, the parties are to be congratulated, counsel is to be congratulated.


MR ROBINSON: Thank you, your Honour. In terms of the – there are some factual issues that the plaintiffs seek to agitate and the passages that we seek, your Honour, to make will be included in the draft agreed facts, as well as in documents that I will ask your Honour to consider. The other side have also been kind enough to prepare a draft stated case which I received last night, I have looked at it and I have only received it in relation to Herijanto, but I can say, your Honour, it does look very promising, with respect to my learned friend, and I would think that with some minor adjustments which can be made with your Honour’s involvement or between the parties, I am fairly confident that a draft stated case can be settled fairly quickly.


HER HONOUR: Excellent, thank you. You are going to hand up, then, are you, your - - -


MR ROBINSON: I think my learned friend might have a clean set. I hand up to your Honour three documents, one in each proceedings headed “Draft Statement of Facts Dated 16 August 2000”.


HER HONOUR: I need not mark them, need I? Yes, thank you.


MR BASTEN: Is it convenient also to hand up the draft case stated, your Honour? I have drafts in Herijanto and Muin. My friend has indicated there may be some variations perhaps to the formulation of the questions. Would it assist your Honour, though, to have copies of those?


HER HONOUR: I think it would, yes, thank you.


MR ROBINSON: Your Honour, to go with the agreed facts document, I would also seek to add in – and I apologise, your Honour, it has paragraph numbered 18 on it, but that does not accurately indicate where it should go in the document – but the paragraphs that I tender now come from the affidavits of the three delegates in relation to Muin, Herijanto and Lie, and I seek to insert into the draft agreed facts – and it was too late physically to do it this morning, your Honour – those passages of my learned friend’s delegates’ evidence that I tender as admissions, which we say should go into the draft agreed facts. I do not think it is contested by the other side, your Honour, and I understand from discussions with my learned friend this morning that the defendants will not be reading any evidence at all, and that he will rely entirely on the agreed statement of facts.


In the plaintiffs’ case, we do rely on some evidence relating to documents that I need to take your Honour to and I will come to that, but in terms of having a fuller agreed facts, we would seek to add those paragraphs to each of the statements of agreed facts.


HER HONOUR: Yes, I see where it goes in the Herijanto matter. Are you happy with the inclusion of those?


MR BASTEN: Yes, I have obviously no objection, it is simply material out of our evidence and it saves me reading affidavits at all. I just suggested my friend tender it in that form this morning because I am not sure whether it is in the correct form sufficiently to indicate what the fact is that is agreed, but perhaps we can deal with any necessary terminological changes and simply insert them in the draft agreement. It is our evidence, we do not object to it.


HER HONOUR: Yes, thank you.


MR ROBINSON: In a similar fashion in relation to the statement of agreed facts is yet another fact that is only in form in relation to the Herijanto Case which is agreed and has not yet been incorporated into the agreed facts documents, your Honour. It is a fact which will go to my submissions this morning on inferences, and if I could hand that up to your Honour. It is only in relation to Herijanto, but an equivalent will be drafted and can be drafted in relation to both Lie and Muin and a suitable place can be found – and we have not found it yet, your Honour – to include that in the statement of facts, and my learned friend, as I understand it, would consent to that.


HER HONOUR: Yes, thank you, very well. At some stage somebody in your solicitor’s office will make a complete document with these, I take it?


MR ROBINSON: That can be done, your Honour.


HER HONOUR: There is no urgency.


MR ROBINSON: That will take about an hour or two to get that together.


HER HONOUR: Just at some stage, not necessarily today.


MR ROBINSON: It certainly will be presented as a consolidated document.


HER HONOUR: Yes, thank you.


MR ROBINSON: Just while I am dealing with paper, I have a summary of submissions in written form. The first one relates to some of the inferences that we would ask your Honour to draw, or that flow from what your Honour will see as not agreed in the draft agreed statement of facts. So the way that document is cast, those paragraphs in respect of which the words “not agreed” do not appear, they are agreed; and the passages where the words “not agreed” appear, they are matters which I would wish to agitate today or your Honour may consider them appropriate to refer to the Full Court for determination, but they are factual matters that I would like to address your Honour on. I hand up to your Honour a summary submission on inferences to be drawn and a summary submission on the actual Part B documents which we say contain favourable material, and on what we term the adverse material which we say contains material adverse to the plaintiff’s case.


HER HONOUR: They are Part B documents as well, are they?


MR ROBINSON: No, our case is, in short, your Honour, that the adverse material, as we have termed it in Muin and Herijanto alone, did contain exactly that, material adverse to the plaintiff’s case which they were not notified of, and that founds the natural justice argument.


HER HONOUR: Yes.


MR ROBINSON: In relation to both Herijanto and Muin and Lie, and Lie alone in this respect, the Part B documents case depends on, particularly from the reply - this is the response to what your Honour might recall as the “so what” point, so what if the Tribunal did not read the Part B documents at the review on the paper stage and perhaps later on - - -


HER HONOUR: You say that?


MR ROBINSON: We say that there was some significance - - -


HER HONOUR: You say that was breach of procedural fairness in so far as the letters indicated - might have suggested that they would?


MR ROBINSON: We do, and in addition to that, we have the other argument that the Tribunal had a duty under 424(1) to look at the material, look at whatever was sent. Now, the badness that is alleged in the plaintiff’s reply in each case on the Part B documents is essentially that some of the Part B material contained favourable material and, to some extent, that can be identified by looking at the names of the articles themselves, such as “Murder in Jakarta” and “Riots in Jakarta” and “Ethnic Chinese Discriminated” and so on, those are the sorts of headings. The submissions I have handed to your Honour, and I may have to take your Honour to each document briefly - - -


HER HONOUR: I have just remembered something. Before you go further, I noticed yesterday that there was an affidavit sworn by Jill Toohey who is the Registrar of the Tribunal who is personally known to me.


MR BASTEN: Yes.


HER HONOUR: Does that cause any problems to any one?


MR BASTEN: Not to us, though obviously she is on our side of the record. She swore an affidavit as to discovery. There is now no issue as to discovery, so I would think not, but certainly not from our side.


HER HONOUR: No.


MR ROBINSON: We have no problem, your Honour.


HER HONOUR: Yes, very well, thank you.


MR ROBINSON: The Part B material, the plaintiffs in each case hope to characterise that as favourable, so we are saying one category of documents, the Part B documents, has favourable material in it which the plaintiffs believed was sent to the Tribunal, considered by the Tribunal and it was not, we say. In relation to the adverse material, it is a different kettle of fish altogether, and we say that they were truly adverse and never put to us. I will come to those submissions in due course, your Honour.


Does your Honour require me to take your Honour to the pleadings at all? I trust that your Honour is familiar enough with the case for me to, as it were, launch straight into the evidence that we rely on.


HER HONOUR: That is right, I think that is sufficient, yes, thank you.


MR ROBINSON: Thank you, your Honour. There are a number of affidavits that I read. The first one is the affidavit of Adrian Phillip Joel sworn on 27 March 2000 – that is the one contained in the large folder, your Honour – and it - - -


HER HONOUR: Yes. We will have to ascertain whether any parts of it are objected to and - - -


MR BASTEN: Your Honour, I do not know why we are reading it because the agreed fact about what was in the discovery I thought would vitiate the need to refer to this material. It is simply the affidavit which refers to the discovery. I do not know that I have any objection to it, if it is all read, it is all read.


HER HONOUR: Well, it would seem to be sufficient if you draw my attention to those parts upon which you rely, rather than go right through the document.


MR ROBINSON: Yes, your Honour. Your Honour, I do not propose to go right through it.


HER HONOUR: Yes.


MR ROBINSON: I will take your Honour to those passages that we rely on and to the extent that we do so, it is set out in the summary of submissions on inferences to be drawn, in particular if - - -


HER HONOUR: We have not yet got that affidavit, it seems to have been left in the Registry.


MR ROBINSON: It was filed in a large white folder.


HER HONOUR: It will be just a few moment, I think.


MR ROBINSON: For the benefit of my learned friend, your Honour, I can say that at the bottom of page 3 of my written submissions on inferences to be drawn and at the top of page 4 are the parts of the affidavit that we rely on, the documents themselves.


MR BASTEN: Yes, I am sorry, your Honour. Perhaps it would be worth saying that you will not have had a chance to look at the draft statement of agreed facts, but at the back there is a series of footnotes. What is anticipated is that each of the documents which are thought to be relevant will be incorporated into a separate bundle. My misunderstanding, I think, flows from that. Obviously the documents at present are only to be found as annexures to affidavits.


HER HONOUR: Yes, thank you.


MR ROBINSON: If I could take a moment, your Honour.


HER HONOUR: Yes.


MR ROBINSON: There is one other document, your Honour. Your Honour, for the purposes of the matters going to the inferences that I seek to agitate today, and not necessarily for the purposes of those documents going to the Full Court on any stated case, I do need to tender to your Honour the exhibits to the three delegates’ affidavits that have been filed by the respondents and there are two exhibits in two of the matters and one exhibit in Lie that I now tender. They have been filed.


MR BASTEN: We have spare copies, if that is a more convenient course, your Honour.


HER HONOUR: It might be, I think, yes. We will mark them as separate exhibits, A, B and C, then.


MR ROBINSON: Thank you, your Honour. Your Honour, I am not suggesting that out of these documents will be carved an agreed bundle. That can go to the Full Court, if necessary. I tender exhibit MPB1 and MPB2 referred to in the affidavit of Malia Patosina Betts sworn 28 January 2000.


HER HONOUR: Yes, for ease of reference, that will become exhibit A in these proceedings.


EXHIBIT: Exhibit A...Exhibit MPB1 andMPB2 referred to in

affidavit of M.P. Betts sworn

28 January 2000


MR ROBINSON: Thank you, your Honour. In Muin I tender exhibit MFD1 and MFD2, being the exhibits to the affidavit of Mary Frances Denning sworn 27 January 2000.


HER HONOUR: Again for ease of convenience, that will become exhibit B for the purposes of this hearing.


EXHIBIT: Exhibit B...Exhibit MFD1 and MFD2, being exhibits
to the affidavit of M.F. Denning sworn
27 January 2000


MR ROBINSON: In Lie in tender exhibit ANH1, being the exhibit to the affidavit of Anthony Nicholas Houen affirmed 28 January 2000.


HER HONOUR: That will become exhibit C for these proceedings.


EXHIBIT: Exhibit C...Exhibit ANH1, exhibit to affidavit of
A.N. Houen affirmed 28 January 2000


MR ROBINSON: Thank you, your Honour. Your Honour will see that the submissions on adverse and favourable materials refer to exhibit pages of the documents. The only aspect of those documents I will be taking your Honour to, if your Honour wishes to entertain this submission at all – and I will explain that momentarily – is the Part B documents and the adverse material itself.


GAUDRON J: Yes.


MR ROBINSON: If your Honour will bear with me for a moment. In addition, your Honour, I tender a letter to Mr Markus of the Australian Government Solicitor from Mr Robert Wilson, Director of Research Refugee Review Tribunal dated – it is a little obscure, but I understand it to be 12 April 1999, it is a two page document.


GAUDRON J: That is not objected to?


MR BASTEN: No, your Honour.


GAUDRON J: It is discovered, I take it. That will become exhibit D. Should I read it at this stage?


EXHIBIT: Exhibit D...Letter to Mr Markus dated 12 April 1999


MR ROBINSON: Yes, your Honour.


GAUDRON J: Thank you.


MR ROBINSON: There is one other document which I do not tender but I hand up to your Honour for the convenience of the Court in working through the Part B documents. Your Honour will recall on the last occasion I said there are number of common documents that were Part B documents.


GAUDRON J: Yes.


MR ROBINSON: In fact, in Lie and Herijanto the Part B documents are almost identical, as indeed are the delegates’ decisions almost identical in terms. To avoid making submissions in each matter, I will make submissions going to the documents and your Honour will see from the schedules that I hand up now, and I give a copy to my learned friend, that, for example, on the first page in Herijanto there, document No 2 in Herijanto Part B list is also document 5 in the Muin Part B list and it also document 2 in the Lie Part B list. So that I only need to make - for me to ask your Honour to consider and rule on a Part B document as being favourable, I would only take your Honour to the document once and the document I have just handed to your Honour will explain where that document appears in each proceeding.


GAUDRON J: Yes, thank you. I will put it aside for the moment, shall I?


MR ROBINSON: Thank you, your Honour. That is all the paper, as it were, that I have for your Honour - - -


GAUDRON J: I am grateful.


MR ROBINSON: - - - all of the documents upon which the plaintiffs rely in terms of the evidence that has been filed by the plaintiff. Due to the high level of co-operation between the parties that has occurred over the last few months, we are also satisfied that the agreed facts, to the extent they are agreed, happily reflect the plaintiffs’ respective positions as far as the evidence is concerned. So I do not need to take your Honour to read the affidavit material that has been filed by the plaintiffs and your Honour can rely on the agreed facts document. If I could take your Honour to, for example, the Herijanto statement of agreed facts.


There is one more bundle of paper that I sent to your Honour yesterday and that is a consolidated list of authorities. Your Honour has that.


HER HONOUR: Thank you.


MR ROBINSON: That is mainly in respect of the inferences that we would ask your Honour to draw. I should say at an introductory level the draft stated case that my learned friend has sent to your Honour and handed up this morning, it does make provision for the adverse material and the identification of the adverse material as being adverse as a factual question, that my learned friend would like your Honour to refer to the Full Court. We say that that is a matter which we would ask your Honour to decide similarly in relation to Part B documents being characterised as containing favourable material. That is not referred to at all in my learned friend’s draft stated case, but I would ask your Honour to make that finding as a factual finding now.


The reason I ask your Honour to do that is it would save the Full Court from being taken to each document in these proceedings. So there are two main areas of inferences that I would ask your Honour to draw. One of them I am forced to do so now in the sense that I think it is appropriate that your Honour deal with it, and that is the favourable and adverse materials characterisation of the documents. The other main area of inferences that I would ask your Honour to draw are the subject of my written submissions on inferences and they are characterised broadly as a finding that we invite your Honour to make that the Tribunal did not consider the Part B documents at all.


Now, that might be a matter that your Honour might regard as appropriate for consideration by the Full Court. If that is the case, I will not trouble your Honour on it today but I am ready to, as it were, in that I have the relevant authorities collected and I am ready to argue that those matters be dealt with before your Honour today.


HER HONOUR: Well, I take it from something that was just handed to me that the parties are agreed that there is no evidence that they did consider them. Is that right? No direct evidence.


MR BASTEN: Well, except for the decision of the Tribunal which refers expressly to some of them.


HER HONOUR: Yes. Yes, I see. Well, I think I had better hear you fully, Mr Robinson, and really only when I have gone through the material can I - - -


MR ROBINSON: Well, your Honour might still decide at the end of it in the second category to remit that. Either way, I am content to run the argument.


HER HONOUR: Well, I think it would be helpful to hear the matter out and then what happens at the end of the day will remain to be seen.


MR ROBINSON: I appreciate that, your Honour. If I could start with the favourable adverse materials.


HER HONOUR: Yes. Well, we will start with the favourable, shall we?


MR ROBINSON: We will start with the favourable ones, your Honour.


HER HONOUR: And they are in the favourable Part Bs?


MR ROBINSON: I can show your Honour the context, in other words, I will take your Honour to the inference that we would ask your Honour to draw first, if that is convenient. In the draft statement of facts in Herijanto - your Honour will forgive me for the speed at which I am progressing because the document has been renumbered recently and I need to find the passage.


HER HONOUR: Yes. Well, there is no need to hasten overmuch because I am not as familiar with it as you are.


MR ROBINSON: Well, your Honour, it is the draft statement of facts Herijanto dated 16 August 2000. Basically I intend to address your Honour on those passages marked “Not Agreed” in due course.


HER HONOUR: I am sorry, statement of facts. I have got the wrong document.


MR ROBINSON: The statement of facts, I am sorry, your Honour.


HER HONOUR: Yes.


MR ROBINSON: It is not consolidated but I will not be taking or addressing your Honour to any of the paragraphs and passages that are not consolidated into the document today.


HER HONOUR: Yes.


MR ROBINSON: Paragraph 11 your Honour will see, for example, is not agreed, that “The Practice Direction constituted a representation” in those terms. I would ask that your Honour would make that finding as a matter of fact and your Honour will see from the draft stated case that my learned friend is going to ask your Honour to remit that question to the Full Court. Paragraph 17(a), Ms Betts is the Minister’s delegate who made the original decision. Paragraph (a) your Honour will see is not agreed, that we say the Part B documents were relevant to the review of Ms Betts decision by the Tribunal.


We say that that is a relevant fact for your Honour to find and that is by way of background only, not by way of something that your Honour must find, but something that we say is an appropriate foundation for paragraph 17(b) and (c), which is agreed, that the documents were considered by that person to be relevant to the review of her decision by the Tribunal.


Paragraph 20 is not agreed and I will address your Honour on that by reference to passages from Mr Joel’s affidavit. We say that it is plain from Mr Joel’s affidavit annexing relevant documents that the character of the CISNET database is as we say there. So there will be some submissions in relation to paragraph 20 and the general character of the CISNET database. I presume that it is not agreed - - -


HER HONOUR: Is that paragraph 20 or 21?


MR ROBINSON: Paragraph 20, your Honour. Paragraph 21 is agreed.


HER HONOUR: Well, let us – draft statements of facts 16 August 2000 - - -


MR ROBINSON: Yes, your Honour.


HER HONOUR: I have got Muin, sorry.


MR ROBINSON: Muin is largely identical but there are some significant differences and, yes, it is 21 in Muin that I was talking about, but 20 in Herijanto.


HER HONOUR: Thank you.


MR ROBINSON: Thank you. We will be saying in relation to 20 that it is necessary background that your Honour understand what CISNET is made up of and I will come back to that, your Honour. Paragraph 24 of the agreed statement is not agreed and - - -


HER HONOUR: As again the representation - - -


MR ROBINSON: Again a representation which I would ask your Honour to make to save the Full Court from doing it, but it is something that could be conveniently done by the Full Court. I am not going to dwell on that. I do not have a lot to say on that. Paragraph 31 is agreed except for the words in brackets and I do non think a lot turns on it, your Honour, but we press for the words in brackets and the defendants do not agree that they are appropriate. Not a lot turns on that. Paragraph 33, the word “purportedly” is not agreed by the defendants but it is the plaintiff’s wish that the word stay for present purposes.


HER HONOUR: I should not have thought a lot would turn on that either.


MR ROBINSON: No, your Honour, and I do not have a lot to say on that. Paragraph 34 is something which your Honour will be invited to refer to the Full Court as part of the stated case, that the Tribunal did not read the documents and that is something that I would ask your Honour to decide today or tomorrow at this hearing. Paragraph 36 is not agreed and that is again in the representation category.


HER HONOUR: In this representation category am I correct in thinking there is affidavit evidence from the plaintiffs that they - - -


MR ROBINSON: Your Honour, Mr Joel’s affidavit and - - -


HER HONOUR: No, from the plaintiffs.


MR ROBINSON: - - - and my written submissions - - -


HER HONOUR: Will refer to that.


MR ROBINSON: - - - refers to it and it forms the basis for the plaintiff’s argument on both 34 and 40 of this document. - - -


HER HONOUR: Yes, thank you.


MR ROBINSON: In paragraph 42(a), that is in relation to the country information listed at, schedule 2, now, that is the adverse material. The schedule 2 of Muin and Herijanto is the adverse material. The defendants do not agree that the documents were adverse material and it is that which I will address your Honour on in 42(a). They do agree in that paragraph that the plaintiffs were not shown the adverse material or told of its substance or contents.


In relation to paragraph 45, which is not agreed, I will be making submissions and that is the favourable material or supportive material that I will be making submissions on first. Then in respect of paragraph 48, which is not agreed, that is a matter of submission on the face of it, your Honour, which I will not spend much - - -


HER HONOUR: That looks very much like one of the ultimate questions to be determined by the Court.


MR ROBINSON: Well, your Honour, it is more in the nature of an argument. We say if - - -


HER HONOUR: Well, it does not seem to be a question of fact so much as a conclusion that you would advance by way of argument to the Full Bench.


MR ROBINSON: Well, it is something which flows we say, your Honour. It goes to the consequences to the plaintiffs. It is set out in their reply and it goes to the “so what” point, as it were, that is raised by the respondents.


HER HONOUR: Well, that is right. Yes, I understand it, but prima facie at least – I will just alert you to this – it seems to me that that really is a matter for argument and to be decided by the Full Bench as part of the ultimate resolution of this matter.


MR ROBINSON: I cannot say anything to that, your Honour.


HER HONOUR: I mean, if you wish to say otherwise, but prima facie it seems to me that is where that matter comes.


MR ROBINSON: We see it in that category as well, your Honour. It may be something that your Honour may care to excise, but the same for paragraph 49, your Honour. We say that is an appropriate fact to be considered, an appropriate consequence. Again, it is in the same character as 48 and your Honour’s comments would apply to it.


HER HONOUR: You may not even have to put it as highly as that by way of argument.


MR ROBINSON: Well, certainly at paragraph 49(a) is supported on the evidence.


HER HONOUR: Yes. No, but I am looking at (b). You would not have to establish “lost all prospects of - - -”


MR ROBINSON: Well, we can say that in submission, your Honour.


HER HONOUR: Yes.


MR ROBINSON: It is just an appropriate place for that fact to appear in the facts as set out. I would not lose sleep if 48 and 49 were not included, your Honour.


HER HONOUR: Yes, thank you. It is 49(b)?


MR ROBINSON: Paragraph 49(b).


HER HONOUR: Yes.


MR ROBINSON: But 49(a) is covered pretty much in other paragraphs. For example, 47(a), (b), (c) and (d) shows what the plaintiff would have done had the plaintiff been aware of certain things. So 49(a) can stay in that form, but as for the rest of 49 and 48, it can go, your Honour, if your Honour is of that view and I have nothing further to say other than it seemed to me to be an appropriate place to put it in context, but we can deal with that by way of submission, if needs be.


HER HONOUR: Yes.


MR ROBINSON: Paragraph 51(a) in relation to the 423 submissions – I should say to your Honour the 423 submissions are nothing more than another part of the adverse materials. So your Honour has seen that in relation to the adverse materials, paragraph 42(a), we say that, “The documents were adverse materials” back in 42(a), that is the schedule 2 adverse material documents, not the Part Bs.


Paragraph 51 relates to one particular document that was considered by the Tribunal. It was a submission of the Minister, or the Secretary of the Minister’s Department, made to the Tribunal about the wretched situation in Indonesia at the time after the May 1998 riots where the Secretary to the Department submitted to the Tribunal in short that everything was fine in Indonesia – and I am not doing it justice – but said the State can protect its ethnic Chinese citizens, as they are called, in Indonesia and the Tribunal should make findings to that effect, that the State can protect its citizens, and, indeed, in these three cases that is what the Tribunal did find.


In relation to Herijanto, though, the submission was received by the Tribunal after the hearing and was never put to Mr Herijanto. I should say that is his one and only name, your Honour. He has no other names, just Herijanto. But that was not put to him and that is agreed to in paragraph 51(b) and (c), but 51(a), it is not agreed that the 423 submissions related to the plaintiff’s case and I will take your Honour to that, but just noting that it is part of the adverse materials and a particular part of it. Paragraph 51(a), we say it did relate to the plaintiff’s case and 51(d), we say the 423 submissions are appropriately characterised as adverse.


That is the line of country that I will be taking your Honour to. In the first area that I wish to address your Honour on, it relates to the adverse/favourable arguments. The favourable arguments derive from paragraph 45 of the - - -


HER HONOUR: Which are we doing first, favourable material or adverse?


MR ROBINSON: Well, your Honour, in the document I have handed to your Honour – that is the one with the three columns – it is headed “Plaintiffs’ Summary Submissions on Adverse/Favourable Materials”. I put the adverse material there first.


HER HONOUR: Is it? Are we talking - - -


MR ROBINSON: That is this document, your Honour. It has three large columns on it.


HER HONOUR: Yes.


MR ROBINSON: I have put adverse materials first in relation to Herijanto then Muin and on page 3 it shows the favourable material.


HER HONOUR: Yes.


MR ROBINSON: So that favourable material and the submissions that follow on pages 4, 5 right through to 9, are the favourable material referred to in paragraph 45 of the draft facts in Herijanto and I can tell your Honour there are corresponding relevantly identical passages from the draft facts in the other two cases, so that the submissions I make now in relation to this favourable material relate to those as well. So my submissions for the moment only go to 45 in Herijanto.


Could I ask your Honour to look at, in the Lie proceedings, only because this is the way I have examined the documents, your Honour, but they are substantially the same as Herijanto and I will take your Honour to the precise documents, but if your Honour could look at page 3 of the summary submissions in this regard.


HER HONOUR: Wait a minute.


MR ROBINSON: That is the three-column document your Honour had a moment ago.


HER HONOUR: Yes, yes.


MR ROBINSON: Page 3 of that. I will start with the favourable material. Halfway down page 3 your Honour will see the heading “Lie Proceedings (including documents in Muin & Herijanto” Part B document No 2 “page 14, column 2”.


HER HONOUR: Yes.


MR ROBINSON: Now, if I could take your Honour to the exhibit in Lie. I think it is exhibit 2.


HER HONOUR: Or B, was it? C?


MR ROBINSON: It is exhibit B, thank you, your Honour.


MR BASTEN: Are you in Lie or - - -


MR ROBINSON: I am in Lie, so it must be C. Exhibit C, your Honour.


HER HONOUR: Yes.


MR ROBINSON: Now, I am only taking your Honour to the Part B documents at this stage. They appear from page 58. The numbering is at the bottom right-hand corner of the page. It is headed “THE CHINESE OF SOUTH-EAST ASIA”. Does your Honour have that?


HER HONOUR: Yes.


MR ROBINSON: Now, that is a document – as presented here, it is an extract of the hard copy of the document. What is on CISNET – and I will take your Honour to that - - -


HER HONOUR: When you say it is an extract of the hard copy - - -


MR ROBINSON: It is an extract of a hard copy but - - -


HER HONOUR: It is not the full - - -


MR ROBINSON: It is not the full document, I do not think, but what appears on – no, I withdraw that, your Honour. It does appear to be the full document - 39, 40 pages. Yes, it does appear to be the full document. What is on CISNET is not the full document and I will tender your Honour the CISNET version of that when I come to making my submissions on the integrity, as it were, of the CISNET database going to the statements of facts earlier. But for the moment, this is the document which the other side say is the Part B document referred to.


We say the favourable material appears at page 14 of that document which is page numbered 71. A discussion on Indonesia starts there. I should say, your Honour, on page 67 of the bundle “ethnic Chinese” in the right-hand column, at about 10 lines from the top, is defined to include - - -


HER HONOUR: Page 67?


MR ROBINSON: Page 67 of the document. Page 10 of the original. In the right-hand column, first paragraph the sentence starting with a definition of “ethnic Chinese”. It:


includes all persons of Chinese or part Chinese descent who would, at least in a cultural or family sense, identify themselves as Chinese, even though they may be citizens of another country and also identify with that country.


Now, all the three plaintiffs in these proceedings are ethnic Chinese. Two of them are Christians and one of them is a Buddhist. They are claiming as a primary part of their claim for refugee status in Australia that they are ethnic Chinese living in Indonesia and, indeed, born and living in Indonesia. Now, at page 14 of the document, 71 of the bundle, there is a heading “INDONESIA” and then a square box in the right-hand column. That shows the exact proportion of ethnic Chinese living in Indonesia as at the time of the document, which is November 1992.


It shows that in the principal ethnic groups, Malay, Indonesian and the various break up of Indonesians as Javanese, Sundanese, Balinese and so on, and then Chinese is 2.7 per cent and then Indians and various tribal groups. So the Chinese make up a 2.7 per cent minority ethnic group in Indonesia. The other fact on that page in that box is that at the top in “CONSTITUTIONAL STATUS” that the government there has “strong military and presidential control”.


We say that those are two facts which are favourable to the plaintiffs’ case and we say that the plaintiffs’ case - I should say before continuing, the plaintiffs’ case in all three matters involved two elements, one being that they were persecuted or that they fear persecution in Indonesia because of their ethnicity and in some cases their religion. Herijanto and Muin both have religion - Christian claims as well, but the primary one is the ethnicity. We say that is one element of their case, that they fear persecution or were persecuted.


The second element of their case in each matter is that the persecution that they fear in their home country is that the State cannot protect them from the persecution they complain of, so that the situation in the country as at the time the delegate and then the Tribunal comes to make their respective decisions involves those two elements: consideration of the applicants’ individual claims and fears and, secondly, the consideration of the position in the applicant’s home country. They are two facts, as it were, that need to be found by the Commonwealth decision makers in this regard and we say it is part of the plaintiffs’ case in each matter. So there is material that would have helped them in some small fashion and they were entitled to rely on the fact that the Tribunal had it before it.


If your Honour would turn the page to page 15 of the original copy, page 72 of the exhibit. In the first column, on the left-hand side, the fourth paragraph, it sets out there some of the history of the resentment against ethnic Chinese in 1974 when riots occurred. It also sets out at the bottom of the page the first reference in the documents to “pribumi”, which means indigenous, and that is about the time in the 1980s that that word came into use and your Honour will see over the column, to the top column of the right-hand side:


Thus, the ethnic Chinese are seen as different from other ethnic groups in Indonesia, and somehow less acceptable.


The word “pribumi” is designed in the documents generally, your Honour, to distinguish those indigenous Indonesians from ethnic Chinese and other ethnic groups, but even in those other ethnic groups it is pretty clear, this document says, that the ethnic Chinese are in a special category of their own.


Also in relation to the third paragraph in the second column, the discrimination that occurred in Indonesia in that:


in practice, ethnic Chinese are asked to prove their citizenship, which can mean paying a bribe and avoiding further questions.


So our submissions go to those passages which, from an ethnic Chinese refugee applicant from Indonesia, would be, we say, significant. Turning the page to page 73 of the bundle, paragraph 4 of the first column:


The attempt to rehabilitate ethnic Chinese capitalism, however, has not been entirely successful.


And it talks about the status of Chinese businessmen. Over the page in column 2, second paragraph, down the bottom of the second paragraph, the sentence:


However, perhaps as many as 10 per cent of ethnic Chinese in Indonesia are farmers, while others are labourers or live near the margin of existence in small towns or crowded into urban near-ghettos. More of them are agriculturalists than tycoons.


The next paragraph:


not all wealthy businessmen are ethnic Chinese. Many government and military officials and members of President Suharto’s family have extensive business interests.


We say that is something that would be favourable to the plaintiff. Down the bottom of that same column in the right-hand side:


Chinese-language publications.....even imported ones –


imported Chinese publications –


are officially banned, as is Chinese-language advertising; shop signs in Chinese characters are forbidden, and even spoken Chinese is frowned upon. This is not only a matter of policy. Many young ethnic Indonesians are keenly resentful of these relics of Chinese language and culture, as conversations and letters to the press testify.


Your Honour will see, in the next paragraph, that 90 per cent of the country:


are Muslim, making it the world’s largest Islamic population. Most of the ethnic Chinese, however, practise a mixture of Buddhism.....though a significant minority are Christians.


At the bottom of that column on page 17 or 74 of the bundle, a few lines above the last paragraph, in universities the:


ethnic Chinese are not freely admitted to public universities –


and in the last paragraph:


Furthermore, the gap between official policy and grass-roots reactions remains. Factors behind outbreaks of anti-Chinese violence have included political and economic crises, perceived grievances and the complicity of local military or police authorities who hesitated to intervene in developing troubles or else allowed a vacuum of power to arise. The worst anti-Chinese incidents, for example, took place when there was a sudden change of rulers: when the Japanese replaced the Dutch in 1942, during the revolution of 1945-9 –


and so on, right through to the end of that paragraph. We say that is an assessment there that is favourable to Chinese applicants. There is also some comments on page 91 which we say are favourable. That is page 34 of the document, paragraph 6, for example - and I am only taking your Honour to some of these. There are many other passages that I am not taking your Honour to. The passage starting with:


The perceived status of the ethnic Chinese in many of the countries of South-East Asia is often that of wealthy middlemen, with all the jealousies and potential violence that that assumption entails. When the pressures become too great, the wealthiest do sometimes quit the country (taking their valuable skills and business acumen with them). Yet the majority –


and this is speaking of South-East Asia, your Honour, not just Indonesia –


are poor fisher-farmers who cannot afford to leave and have to deal as best they can with the prejudices bestowed on their whole community by the majority people.


So we say that that is relevant material - - -


HER HONOUR: Page 91, last paragraph?


MR ROBINSON: The last paragraphs.


HER HONOUR: Referring to Burma and Indonesia.


MR ROBINSON: In the first column, the sixth paragraph, and the last paragraph in the second column. Your Honour will see in my schedule, I am now on page 4 and I am moving to document No 3. I am halfway down page 4. In the first page of document No 3, that is page 98, the document headed “Days of Rage”, we say that that shows the nexus between the resentment held by the indigenous Indonesians, the pribumi, towards the Chinese people. There is talk there of rioting in Medan on April 14, and that is 1994, your Honour. The heading of that article sets the tone of the article, that an industrial strike held in Medan turned into, or “explodes into”, as the heading says, “into anti-Chinese violence in Sumatra”.


A pattern through this document, I should say to your Honour, is that almost any event in Indonesia can trigger anti-Chinese violence and what precipitates the violence varies throughout these documents. In this particular instance, a strike by workers turned into a violent rage against the Chinese, and that is a theme that is common throughout the documents. The looting and destruction of Chinese-owned property on a large scale, is set out there in column 2 on that page. In the second page, column 1, there is a perception of an alignment with Chinese armed forces. In the second column, down the very bottom, the last paragraph starting with:


Another question hangs over Medan’s deserted streets: can Indonesians curb their racial prejudices without relying on the military to do it for them? Despite official commitment to the state ideology, Pancasila, mutual suspicion among religious and ethnic groups clouds many aspects of national politics, from cabinet appointments to banking scandals to investment decisions. For Indonesia, the economic and human costs of those unresolved tensions threaten the rosy future many analysts have painted in recent years for the country.


Now, we say that is favourable material. If I could take your Honour to the next document, page 100, that is Part B, document No 4. This contains a fairly large amount of favourable material. It is a report by the United States Department of State Country Reports for human rights. It relates to 1996 and it was released in January 1997. It is a common source document used by the departmental decision makers, the Minister’s delegates as well as the Tribunal, and almost all of it, in general terms, your Honour, is highly favourable to ethnic Chinese applicants.


I will take your Honour to some of the main passages. In the first paragraph on page 100, there is reference to a “strongly authoritarian” political system and the “state ideology” that I have mentioned, and it says that:


The judiciary is subordinated to the executive and the military.


These matters are dealt with further on in the document and explained in detail. In the second paragraph, last sentence:


There continued to be numerous, credible reports of human rights abuses by the military and the police.


Two paragraphs on, the paragraph starting with “The Government continued”, that whole passage is, we say, favourable, in that it describes in detail some of the categories of serious human rights abuses committed by the Government itself. On the second page, in that paragraph, in summary – I set out a summary of it at the bottom of page 4 of my submission – there is killing “of unarmed civilians”, legal protection against torturers, said to be inadequate. The use of torture and general mistreatment of detainees, arbitrary arrests, detentions and the use of violence and deadly force.


In the last paragraph on page 100, paragraph 5, the Government imposes “severe limitations on freedom of assembly and association”, and there is the Government removal of political opposition leaders through violent means and the severe rioting which occurs, as set out there. This is all in relation to one year. On page 2, and that is page 101 of the exhibit, there is a general reference to the July rioting, in the middle of the page, and Government “control over and intimidation of the press”, in paragraph 4, and the use of anti-subversion laws with behaviour adverse to certain groups there. If I could take your Honour to page 113, second paragraph:


High-level officials continued to make public statements and emphasize by example the importance of respect for religious diversity in the country. Lower-level officials, however, were frequently alleged to be reluctant to facilitate and protect the rights of religious minorities.


That lack of State protection for minorities such as Chinese Christians and Chinese Buddhists, we say, is significant. Page 115, the third last paragraph from the bottom:


The Government considers outside investigations or foreign-based criticism of alleged human rights violations to be interference in its internal affairs. It emphasizes its belief –


and so on. But that resistance to external interest is significant. Page 121, under the heading “Religious Minorities” there, that paragraph and the first line of the next paragraph show Christian churches that have been targeted and burnt in October that year, 1996, and Chinese community property is targeted and a Catholic church is burnt in east Jakarta. The burning of Christian churches, your Honour, bearing in mind that a significant percentage of Chinese people in Indonesia are Christians, is also, in the main, significant, not just in terms of persecution based on religion, but also in terms of the ethnicity element because in Indonesia the two are intertwined.


Over the page, on page 122, paragraphs 1 and 2 deal with the suppression of Chinese publications and suppression of education opportunities, and the banning of the celebration of Chinese New Year. Page 133 is Part B document No 5 for Lie. It was also referred to in Herijanto and Muin. Page 131 is the start of it, your Honour. It is a cable from DFAT, which I asked your Honour to accept as the Department of Foreign Affairs and Trade, which, as your Honour is aware, advises the Department of Immigration officers from time to time about the situation in various countries, and the title of this is “Indonesia: Domestic Political Situation: Inter-Group Relations”.


There is talk of “student brawling” and “acts of destruction of places of Christian worship” in the first paragraph. Two pages on, in relation to page 133, that is the last page of that document, the last paragraph is relevant, that:


there remains the possibility that underlying religious, racial and social tensions will continue to be manipulated in the lead up to the general assembly of the –


Parliament –


in March as the support groups of various factions angle for political advantage.


That is a similar pattern that emerges from the documents in these proceedings, that prior to, or at about the time, of any political change in Indonesia, rioting occurs, violence occurs and the ethnic Chinese, for want of any incident which precipitates it, bore the brunt of that. The next document is Part B No 6, that is page 134. It is also 6 in Herijanto and 18 in Muin. That dark heading at the top, your Honour, is a CISNET database printout.


Your Honour will see, at the first line, document “CX5957”. That indicates that this document, and that banner at the top, indicates it is a document that was printed out of the CISNET database that your Honour has heard so much about in these proceedings. This is an article from Agence France Presse, a news publication, dated 16 April 1994, relating to Medan, Indonesia. There, the first paragraph talks about a labour protest which “turned into ethnic violence against the Chinese minority”. Down the bottom of that page, the detail of the violence against the Chinese is set out. The last sentence on that page:


The violence appeared aimed at ethnic Chinese, who are often the target of jealousy –


Page 135, paragraph 10 – that is really the passage starting with - - -


HER HONOUR: Sorry, page 145?


MR ROBINSON: 135.


HER HONOUR: 135, yes.


MR ROBINSON: That is the paragraph, your Honour, starting with “But Indonesia’s”, right down to, including that and the next three paragraphs. Over the page, in page 136, the Muslim majority resentment is made plain. The level of destruction is set out there and the “residential areas inhabited by many ethnic Chinese” are targeted. The effect on the ethnic Chinese population is set out there as well, and at least one death occurred in that incident. Document No 8, which is at page 138 of the bundle – it is cut out at the top but your Honour will see the reference down the bottom of that page. It is “Human Rights Watch/Asia”. Now, that group is identified on the last pages of this publication - that is at page 150 – as a:


nongovernmental organization established in 1978 to monitor and promote the observance of internationally recognized human rights in –


a number of countries, and it sets out who is involved in that organisation. This talks about the April 1994 riots in Medan and in other towns in northern Sumatra which began as worker riots and they say, in the first paragraph:


degenerated into anti-Chinese violence, resulting in the death of an ethnic Chinese and injuries to two others.


And:


media attention has focused on the ethnic element –


Pages 7 and 8 of that document, that is pages 144 and 145, down the bottom of page 144 under the heading “The Anti-Chinese Element”, and it says the violence there was partly incited by “flyers (selebaran), which first appeared” – turning the page to 145 – I do not know who produced what were “hastily prepared” flyers, which incited the population there to riot against Chinese. These flyers appeared in the context of that workers demonstration which invited the people to “Crush the Chinese”.


So we rely on, basically, that whole page. In the middle of that page at 145, there is a convenient summary of the history of persecution of ethnic Chinese in Indonesia going back to 1965, of violence again in 1975, and again in 1981, and again in 1984. That is a convenient brief summary of some of the exposure of ethnic Chinese in Indonesia throughout the years and is highly significant, we say, in respect of the pattern of violence against this minority. On page 147 of this document there is discussion throughout that page of what might be the possible catalysts for the anti-Chinese riots, and your Honour will see that it could have been any number of things.


My submission at the end of this will be as on the documents as a whole, your Honour: it does not really matter what triggered the violence because it does not take very much in Indonesia for violence to flare against ethnic Chinese, and that arises from the face of the documents. The next document which shows favourable material is document B9 at page 153. That is also referred to in Herijanto No 9 and in Muin No 8. It is a CISNET article from the Sydney Morning Herald, “INDONESIA: RICH CHINESE AND RIOTS IN INDONESIA”.


HER HONOUR: Page 154, the second paragraph - - -


MR ROBINSON: Yes, your Honour. Again, the history from the 1960s is set out two paragraphs on, and the reason for it is offered in the next paragraph, much the same thing. In the third page, third paragraph, there is anti-Japanese and anti-Government riots which degenerated into anti-Chinese rioting. The last paragraph there, on page 155:


should Indonesia slip into a period of instability during the transition from Soeharto to a new and untried leader.


There has been, as your Honour knows, a significant number of riots since May 1994 in Indonesia. This is just one of them.
The next document I would take your Honour to is No 14. That is page 191 of the exhibit. It is a CISNET document, a newspaper article from Reuters in December 1992. We say it is generally favourable to Chinese Christian refugee applicants. Page 192, the last three paragraphs, bearing in mind that other documents show that a significant number of Christians are ethnic Chinese as well, that is something that impacts more on Herijanto and Muin, who are ethnic Chinese Christians, than Lie, who is ethnic Chinese Buddhist. It is only relevant there in Lie in the context of the ethnic Chinese passage, but in terms of the attacks against the Christians, that is also an attack, we say, against the ethnic Chinese.


The next document is 15, page 193. That is also in Herijanto and Muin. We say it is mostly favourable generally to ethnic Chinese applicants. The “old forces of stability are undermined” it says in the second paragraph and it talks again about the riots in Medan that went for 10 days in the nation’s third-largest city:


They underline the sense of unpredictability that now exists in Indonesia as different groups step up competition for power in the post-Suharto world, clearly on the horizon –


The next document is 16, page 196. I must say, while it is not adverse generally speaking, it is only slightly favourable. That is from The Economist of 17 April 1993. Its significance on the first and second page there is recognition by a future leader of Indonesia, Mr Wahid, at the bottom of the first page, 196, where in the second-last sentence on that page:


He believes that there is every chance that Indonesia’s traditionally tolerant strain of Islam could take a narrower, harsher line.


Over the page, Mr Wahid speaking of a letter he wrote to the then President:


warning him that unless steps were taken Indonesia threatened to become “another Algeria” within ten years.


These comments were made in 1993. On page 198 under the heading “The Chinese puzzle”, there is discussion there about the fragile nature of Indonesian society and the “traditional antagonism towards the Chinese”. That is in the second-last paragraph. Over the page at 199, third paragraph:


Chinese-Indonesians suffered disproportionately in the.....1960s –


That paragraph we rely on and the last paragraph:


a severe test of the strains within Indonesian society. It may even raise old questions about the unity of the Indonesian state itself.


That is going over the page to 200.


In the next document we rely on, document No 18, this is from December 1995, TAPOL Bulletin, printed from CISNET. Generally speaking, your Honour, the whole document is very favourable to ethnic Chinese. In short it speaks about a riot which was precipitated by two chocolate bars and a thirteen-year-old girl who went shopping with some school friends. She suffered punishment which is set out in the second paragraph from a shop owner and she was forced to clean the toilets and take off her scarf. As the day wore on, anti-Chinese sentiment became the main issue for large crowds of people that developed. The next day riots occurred and ethnic Chinese people were the target. Those two pages we rely on in total as being favourable to Chinese applicants, showing one incident can precipitate violence on a large scale. This is a town in West Java, Purwakarta. It also deals with the inability of the State to provide protection. Your Honour will see on page 202 in the last paragraph, incidents like this riot can easily erupt anywhere in Indonesia. The last sentence:


Such a situation can easily ignite anti-Chinese sentiments because many of the shops and businesses in towns like –


those two towns –


are owned by ethnic Chinese.


The next document is 19. This is a four-page document which appears to be a printout from a computer but not CISNET. It is a Sydney Morning Herald article from 1 February 1997.


HER HONOUR: Exhibit page?


MR ROBINSON: Pages 203 to 206, your Honour. We categorise this article as mostly favourable. It is the description of the character of another anti-Chinese riot, destruction of homes, the frequency of these riots, the volatility of what is termed the “lower classes” and the connection to the power struggle. The person interviewed there says “eventually, the nation will burn” in the last line. We rely on the whole of that, your Honour. That is also 19 in Herijanto. It is not referred to in Muin.


The next document we rely on is Lie Part B No 20. It is also Herijanto No 20 and it is not referred to in Muin. That is mostly adverse, your Honour, but there is material in there that is partly favourable. It shows yet another location for anti-Chinese riots – this is at 207 – more riots in Jakarta. It shows a connection between economic grievances and attacks on Chinese, so the passages that appear there are the third paragraph, last sentence, and the next paragraph which shows yet another incident that precipitated trouble:


when a Chinese woman objected to the pre-dawn clamour made by children of local Muslim families.....But it seems there are many kinds of sparks that can start a conflagration in Indonesia at present.


Then there is talk of other riots.


No 22 is the document at page 211. “Under the Volcano” is the heading of the article and it is an article that appeared in the Far Eastern Economic Review in March 1997. Generally speaking, I will not take your Honour to the detail of it except the paragraph on the first page:


Taken to the extreme, these feelings can erupt into violence. In recent months, four major riots have occurred across Java thrusting obscure towns –


such as those listed there –


into world headlines. Some of the violence has been aimed at homes, businesses, and places of worship belonging to ethnic Chinese – a historical target of economic resentment in Indonesia.


The article generally, your Honour, goes on to deal with the view of the workers class, as it were, in Indonesia, perception for the reasons for anti-Chinese sentiment and violence. So the journalist interviews several what they would say were ordinary working class Indonesians and asks them why they believe there is violence against ethnic Chinese. Some of the prejudices that we say exist in Indonesia are disclosed in that document. Some of it is not favourable, your Honour, but there is clearly some favourable material in there to a Chinese applicant. I will not trouble your Honour to read the whole of that.


The next document is No 23, page 218. That is also referred to in Herijanto; it is not referred to in Muin. That is mostly favourable, we say, mostly dealing with the attacks on Christian churches, but there are particulars there of the anti-Christian actions over there. On the second page, that is page 219, there are State impediments to Christian worship set out in detail in the second paragraph starting with “FOR SOME TIME NOW”, and the bullet points there talk about the difficulty in obtaining building permits for Christian churches. So we say that is appropriately characterised as State impediments to Christian worship. For example, on page 220, about halfway down that paragraph:


RELIGIOUSLY MINDED PEOPLE THINK TWICE BEFORE ENGAGING IN WHAT WERE ONCE NORMAL SOCIAL ACTIVITIES.


The next article at page 221, Part B No 24, is mostly favourable, we say, and it deals with attacks against Christian churches and places of worship and an incident in East Jakarta in September 1996. This is a country information report. It has the appearance of a cable. Yes, in the black square at the top, this is from CISNET. It says that it was sourced from DFAT, so it has come from the Department of Foreign Affairs. Over the page on 222 in the second paragraph:


OUTSIDE CHURCH NETWORKS, INFORMATION ON THE INCIDENT HAS BEEN VERY LIMITED. CONSISTENT WITH MEDIA PRACTICE NOT TO REPORT “SARA” INCIDENTS, THERE WAS VIRTUALLY NO COVERAGE IN THE WEEK AFTER THE INCIDENT.


The SARA reference, your Honour, is a common reference throughout the documents, referring to a practice of the media in Indonesia of not reporting violence against ethnic Chinese or not reporting incidents of attacks against churches. That appears quite a number of times.


If I could take your Honour to document 26, we characterise this generally as very favourable in relation to Chinese Christians. It refers to a new location for attacks.


HER HONOUR: That is at page?


MR ROBINSON: Page 224. It talks about another area in remote East Java of a terrified Christian minority community and in the first paragraph, “Muslim rioters destroy its churches, schools and an orphanage”. On the first page down the bottom, all 24 buildings were burnt, involving “10,000 angry, young Muslim men”, in the last few lines, and the violence is said to have “raged out of control”. The link to the Chinese aspect of it is on page 225 at about point 7 on the page. Your Honour will see a paragraph starting with:


Many members of the minority Christian community are Chinese traders.


On the second page of that article, the incident which precipitated this wave of violence is set out in the passage above the last passage I took your Honour to on page 225 at about point 6 on the page, the paragraph starting with:


THE Christians of Situbondo were in no way connected to the incident which sparked the violence.


This is yet another incident. In that particular one there was a local court hearing. A Muslim man:


was being tried for insulting a revered local Muslim leader. The court gave him a lenient sentence in the view of the already agitated crowd outside. First the –


Muslim –


crowd burnt down the court. Then it took their revenge on every symbol of Christianity in the town. In the few shops that remain open the owners say they would not like to reveal their religion. But this is a small provincial town –


That is yet another incident that precipitated violence in yet another location.


At the bottom of page 226, the last quotation there is a frank assessment, the last two sentences there:


“The case shows how deeply entrenched the culture of violence is in our society and how easy it is for us to resort to violence. Political influences may also be at play, but the consequences at a grass roots level often gets out of control.”


Document No 27, which is also referred to in Herijanto but not in Muin, is mostly favourable to the plaintiffs. Riots in West Java. The spark this time, in the first paragraph, is a report of police brutality towards a Moslem leader and that was enough to trigger the violence in that town against the Chinese and the Christian churches, but they were the main targets. That is set out at the bottom of that page at 228. On page 229, the last paragraph:


Rioters had scrawled obscenities on walls against the ethnic Chinese – seen as dominating the economic life of the town. The rioters had also written signs saying “No to Jesus” “No to the Jews”, and “Police are super-corrupt”.


Just above that passage that I read to your Honour at about point 5 on the page:


Local residents put up signs on their premises and vehicles saying “Owned by Moslem” in order to save their property.


HER HONOUR: What page?


MR ROBINSON: That was 229 at about point 5. That shows the extraordinary events there, that the Muslims had to identify themselves in order not to be swept up in the attacks against the Chinese. No 28 is also in the category, we say, of mostly favourable. It relates to the incident referred to two articles ago precipitated by the verdict.


HER HONOUR: This is page 230?


MR ROBINSON: Yes, 230, I am sorry, your Honour, document 28. It is also referred to in Herijanto but not Muin. This is where the crowd did not like the verdict against a Muslim man and rioted and burnt down Christian and Chinese property. It deals with also the murder of religious workers and deals with the history and size of mob attacks in a number of locations. As well, your Honour, over the page on 231 in the third paragraph:


There have been several attacks on Christian churches.


Set out in a number of locations and a number of times and it goes to the geographic distribution and extent of the rioting.


In document No 29, we say that is also generally favourable in that it sets out the location of church and court attacks.


HER HONOUR: That is page 232?


MR ROBINSON: That is 232, your Honour. This was the one precipitated by the Muslim trial. Five people were reported to have died. It is also relevant in that it deals with how the rioting in this town referred to in the article spread to a neighbouring town in East Java. We rely on the whole of that as favourable.


Document No 30, we say, is categorised as mostly favourable. That is page 234. Christians there were the targets. That appears to be the same incident that is referred to in the last few documents, but there is some more detail about it. An explanation appears on page 235 over the page from Bishop Pandoyo Putra, who says that:


Indonesia’s closed culture did not encourage religious debate, allowing tensions to simmer.


Document 31 is partly favourable, we say, particularly in the first paragraph. In the fourth sentence, this is where it talks about a function at a convention centre in December 1996 and the Minister for Administrative Reform is speaking and the article says that he had the audacity to say in front of the President and the Vice-President:


that all was not rosy with the state of Indonesia. He praised the state ideology.....Over the previous year or so, the country had seen an unprecedented spate of ethnic and religious conflicts, the most recent of which was the anti-Chinese and anti-Christian riot that had broken out in the West Java town of Tasikmalaya the previous day. And there was more to come.


There is an explanation, your Honour, of what SARA means.


HER HONOUR: Yes, I have seen that.


MR ROBINSON: Yes, “akin to professional suicide”. There are predictions at the bottom of the page of a decade of instability and on page 237, about point 5 of the page, reference to Chinese traditionally being on the receiving end of the violence.


On page 238 at the bottom there is talk of how they hope to expand the Indonesian middle-class base to 25 per cent by the year 2010 and they say that until then “don’t put away the riot gear.”


The next document we rely on is 32 in Lie and that is from CISNET from Reuters News, 10 February 1997. It is only partly favourable in that it talks about new violence, Islamic extremism and simply one police beating precipitated this violence and it was a police beating of an Islamic religious teacher and the riots occurred against Chinese.


Now, they are all the documents that are favourable in Lie and Herijanto and, to a large extent, Muin. I am at page 8 of my three-columned summary submissions.


HER HONOUR: Yes, I am with you so far.


MR ROBINSON: In Muin there are a number of documents which are in the same category. There are none in Herijanto as such that I wish to take your Honour to, because they are covered pretty substantially in Lie and the same with Muin. So, in only dealing with Lie and Muin, it pretty much covers the field of the Part B documents in all three, your Honour.


HER HONOUR: Yes.


MR ROBINSON: So, it would be Exhibit B, the second folder of that. At page 196, document No 9, where it is 1994. It contains a description of a – 196.


HER HONOUR: Wait a minute.


MR ROBINSON: Document 9 is at 195.


HER HONOUR: We have Exhibit B but I do not know if we have the right volume – MFD-2 or 1?


MR ROBINSON: It should be Exhibit MFD-2 at the front.


HER HONOUR: Yes, thank you. So the document I have is dated 14 October 1998. It has come from CISNET. It is a country information report.


MR ROBINSON: It should be at 196.


HER HONOUR: I have 195. 196 seems to be a carry-on.


MR ROBINSON: I am sorry, I think I have led your Honour astray. It is exhibit originally numbered MFD-1. I am so sorry, your Honour.


HER HONOUR: My associate was right.


MR ROBINSON: There is so much paper in this case.


HER HONOUR: Yes.


MR ROBINSON: It is page 195.


HER HONOUR: Let me just cross-reference it to MFD-1, Exhibit B MFD-1.


MR ROBINSON: It is MFD-1, 195.


HER HONOUR: Yes, thank you.


MR ROBINSON: It is only favourable in that it describes a mob attack against ethnic Chinese. I will not take your Honour to the terms of that. I should say to your Honour I am missing some of the documents from my copy of the exhibit and that will only trouble me later when I come to the adverse material.


HER HONOUR: I am sorry. You are missing some of the exhibits?


MR ROBINSON: I am waiting to receive – when I come to the submissions on adverse material. I have asked my learned friend to provide me with a copy of pages of the exhibit that were not served on us, that are missing from our copy – mine and my instructing solicitor’s copy. I thought it was in Part B, your Honour, but it is not. It is in the adverse material section.


Now, the next document I take your Honour to is page 202, what is called document 11a of the Part B list, a Reuters news service report printed out from CISNET from June 1993 – page 1, seventh paragraph:


Ethnic Indonesian resentment against Chinese occasionally boils over into violence or accusations of disloyalty to Indonesia.


Two paragraphs on:


Ethnic Chinese say they have been a scapegoat during times of social unrest.


The next document is 12 at page 208 of the exhibit in the first paragraph. We say this whole article is mostly favourable, your Honour. It contains more overt acts of discrimination. The ban on the celebration of Chinese New Year is on that page as well in the third-last paragraph. On the next page, 209, the second and third paragraphs talk about the government prohibition on Chinese language, schools, literature, cultural groups, limiting the Chinese newspapers, and the last paragraph on the page “Changing names”:


Indonesian Chinese were strongly urged to change their names to “native” names.


Over the page, page 210, the third paragraph and the fourth paragraph under the heading “The final solution” where:


The Indonesian Government refer to the issue of the Chinese minority as the “Chinese problem” –


and the term used - “Tiong Hoa” in the next paragraph was commonly used before 1965, it was a “derogatory” expression. In the next paragraph I rely on that whole paragraph where they talk about government-sanctioned “routine discrimination” and identity cards for Chinese. Chinese need to carry these cards “to distinguish them from the locals” in “places like Jakarta”. Over the page on page 211 paragraphs 3 and 5, and the last paragraph we rely on - stereotypification of Chinese, the frequency of anti-Chinese outbreaks, the volatility of the situation and various locations of violence.


Your Honour will see in the second-last paragraph the expression “Assaatism”, the:


new wave of Assaatism but on a much larger scale. Assaatism was first coined in the fifties and it was a policy of deliberately encouraging the “indigenous” traders while discriminating against the Chinese.


In the last paragraph the Chinese are stereotyped there as “economically strong”.


The next document is 13. We say it is favourable. It sets out generally new locations of anti-Chinese violence in Medan, Sumatra, where strikes degenerated into riots resulting in the death of one ethnic Chinese Indonesian businessman. In paragraph 5 there the Chinese regard themselves as targets.


The next document is 27 at page 260. We say that is favourable. The first paragraph says it succinctly. It was a survey conducted by a Berlin-based company which produces what they call “The Corruption Index”. The Berlin-based group is called Transparency International and they categorise in that year, which was August 1995, Indonesia as “the world’s most corrupt country”.


HER HONOUR: I do not see the relevance of that document.


MR ROBINSON: Well, your Honour, this is a document that was before the original decision maker, which they relied upon.


HER HONOUR: Yes.


MR ROBINSON: An independent organisation has decided through its study that Indonesia is, at that time in August 1995, classified in that way and my submission, is whilst it is not the most weighty of documents, taken together with the other ones, it certainly is a relevant document, your Honour. I am not suggesting one could take this page and make a refugee decision based upon it alone.


Documents 28 and 29 are pretty much the same thing or report the same finding by that same entity and we would rely on that, similarly, as being favourable. It is certainly not the king hit, as it were. That is all the material that we would ask your Honour to find is, in the context of the plaintiffs’ reply, favourable material. Again, that is all in the context of the draft agreed facts at paragraph 45 and the appropriate corresponding paragraph in both Lie and - - -


HER HONOUR: Perhaps we might just stop there. I just mention this for the consideration of both sides. Would it not be better to summarise the material than say “supportive of the plaintiffs’ case” when it comes to - - -


MR ROBINSON: To summarise this material, your Honour?


HER HONOUR: Yes, summarise the effect of it in terms something along, “Some of the Part B documents contain material which reveal that ethnic Chinese, a number of whom have been the subject of riots in a number of towns and so forth and so on”.


MR ROBINSON: I am content to do that, yes, your Honour.


HER HONOUR: I will leave Mr Basten to think about that, rather than say “supportive of the plaintiffs’ case”. I mean, you can think about it now. I am not asking you to respond immediately but I would think it would be better at paragraph 45 to give a summary of the material to which you have referred.


MR ROBINSON: Your Honour, in terms of the finding that – I see what your Honour is saying. I am grateful for that. It is not something I have anything to say to, your Honour.


HER HONOUR: Well, you do not resist my doing that?


MR ROBINSON: We are content to participate in some acceptable depiction of those categories of documents.


HER HONOUR: Yes, very well. Perhaps the parties could try that, otherwise they might find that one comes from me, but leave it be at the moment.


MR ROBINSON: Yes, your Honour. That is all that we have to say in relation to 45 of the Herijanto draft statement of facts. Unless your Honour wishes me to, I will not take your Honour to the corresponding paragraph in Lie and Muin.


HER HONOUR: No. I can work that out from the handwritten documents.


MR ROBINSON: Yes, your Honour.


HER HONOUR: Mr Basten may not have those documents.


MR BASTEN: No, I have those, your Honour. In fact, I was going to offer to give your Honour a copy of those in typescript form.


HER HONOUR: That would be handy in due course. Thank you.


MR BASTEN: We do not have enough copies here. I was just going to say in relation to my friend’s last comment, those will not assist your Honour to find the relevant passages and I thought he might give them to us in Lie because it is not near 45 because the numbering is very different. It may not matter.


HER HONOUR: No. Yes, I can work that out in other - but whatever one said in paragraph 45 of Herijanto would flow through to the equivalent paragraph in the other documents, would it not - well, at least on Mr Robinson’s - - -


MR BASTEN: Yes, he just wants to say it is objectively supportive of.


HER HONOUR: I think it would be better to summarise the material.


MR BASTEN: Yes, in which case - one question is relevance, so that one may need to differentiate.


HER HONOUR: Yes.


MR ROBINSON: In relation to the adverse material, if I could take your Honour to the draft statement of facts in Herijanto, the paragraph

numbered 42 – it is page 9 of my printout, your Honour – paragraph 42(a). Can I ask if your Honour was intending to take - - -


HER HONOUR: Yes. I would be happy to take a five or ten minute adjournment, if that would suit counsel. Would it?


MR ROBINSON: Thank you, your Honour.


HER HONOUR: We will adjourn for ten minutes.


AT 11.50 AM SHORT ADJOURNMENT


UPON RESUMING AT 12.06 PM:


HER HONOUR: Yes, Mr Basten.


MR BASTEN: Your Honour, ten minutes is often useful. Having listened to the morning, I think we may have a formula for paragraph 45 which will be acceptable to both parties.


HER HONOUR: Yes. I thought that might happen.


MR BASTEN: I am sorry it did not happen before.


HER HONOUR: No, no, that is - - -


MR BASTEN: I am not sure whether paragraph 42(a), the adverse material one, is so readily resolvable. I do not know whether I should say this at this stage but, ultimately, one of the things we will be saying to your Honour about this is that the term “adverse material” is, in effect, a term of art taken from a document, namely the practice direction, and we say that there may be issues of construction which are bound up in that which would ultimately need to be considered by the Full Court. We can see anyway.


HER HONOUR: Yes, we will see what emerges.


MR ROBINSON: In relation to the adverse materials point, as it is termed, the documents that I am about to take your Honour to, I should perhaps first show your Honour where they are listed. I have not seen what was handed to your Honour in the draft statement of facts but does your Honour have, attached to the back of that draft statement of facts in Herijanto, two schedules?


MR BASTEN: No, your Honour does not.


HER HONOUR: I have lots of footnotes.


MR ROBINSON: Does your Honour have the agreed statement of facts that was handed up to your Honour on 19 July?


HER HONOUR: Yes, I do.


MR ROBINSON: In Herijanto?


HER HONOUR: Yes.


MR ROBINSON: Attached to the back of that document is four pages of schedule 1.


HER HONOUR: Yes, I see all those.


MR ROBINSON: They are the Part B documents. Then there is a two-page document headed “Schedule 2”.


HER HONOUR: Yes.


MR ROBINSON: Those schedules have not changed from the version handed up to your Honour on 19 July, so they can be taken as incorporated into the draft document that your Honour was handed this morning. The documents in schedule 1 I have already addressed your Honour on as favourable material. The documents in schedule 2 in both Herijanto and Muin are what we term the adverse material. Now, they have nothing to do with the department. These documents are the documents that were mentioned or referred to or relied upon by the Tribunal in its decision, which surprised the plaintiffs, Herijanto and Muin.


HER HONOUR: Now this does not involve plaintiff Lie?


MR ROBINSON: No.


HER HONOUR: Thank you.


MR ROBINSON: I am about to address your Honour on the adverse material that is listed in schedule 2 of the schedule to the agreed facts in Herijanto and in Muin. My summary submissions on adverse/favourable material will cover these documents from the first page of those submissions. Your Honour will see in schedule 2 item (a) is a:


Submission from the Secretary of the Department of Immigration and Multicultural Affairs under section 423(2) - - -


HER HONOUR: Where am I going to find those documents?


MR ROBINSON: I will take your Honour to them. It is in Exhibit A in these proceedings. That comprises two exhibits and it is in exhibit 2. It is in the second folder.


HER HONOUR: Yes, thank you.


MR ROBINSON: I am sure about that this time, your Honour. That exhibit there contains the RRT file, then a transcript of the hearing and on and from page 93, subject to the inclusion of some documents that we do not rely on at all but were not adverse, and subject to us now having been served with some documents that were missing from this exhibit – we have been served a moment ago with those documents – they are to the end of the folder, your Honour, from page 93 through to - - -


HER HONOUR: Page 93 is:


SUBMISSION.....ON THE EFFECTIVENESS OF THE PROTECTION PROVIDED BY THE INDONESIAN GOVERNMENT FOR ETHNIC CHINESE INDONESIAN APPLICANTS - - -


MR ROBINSON: That is right, your Honour.


HER HONOUR: Yes.


MR ROBINSON: In the second line your Honour will see it is the 423 submissions.


HER HONOUR: Yes.


MR ROBINSON: So that page to the end at 252 comprises what we say is the adverse material in Herijanto alone. Would your Honour be assisted by being taken to 423 momentarily? I have in my list of authorities in tab No 1, I have set out extracts of the Migration Act from the relevant legislation as it was at the time and 423 is set out there.


HER HONOUR: It says “The Secretary”. I take it that is of the Department of Immigration and whatever else it was known as at the time?


MR ROBINSON: Yes, that is right.


HER HONOUR:


may give the Registrar written argument relating to the issues arising in relation to the decision under review.


MR ROBINSON: Yes, your Honour. Now, these are submissions at page 93 and following that are made under that section of the Migration Act. The structure of it, your Honour, is the submission goes to page 97.


HER HONOUR: I take it this submission was not made available to the plaintiffs?


MR ROBINSON: No, your Honour.


HER HONOUR: And in the case of Herijanto it came after the hearing?


MR ROBINSON: Yes, your Honour. The submission goes to page 97 and attached to it is what is called attachment A at 98 and following, which is a DFAT cable, attachment B at page 103 which is another cable from DFAT. It encloses the cable. Attachment C at 106 which was a Media Monitors’ report of an interview with the then new President of Indonesia, Habibie, and it ends at page 109. All those documents there comprise the 423 submission and its attachments. In relation to the summary written submissions in this respect, I have set out the submissions by reference to the draft agreed schedule. That is three columns.


HER HONOUR: The three columns again, yes. Thank you, I have that.


MR ROBINSON: In relation to what is termed schedule 2 document (a), that is exhibit page 93, in respect of the whole of that exhibit and its attachments or annexures, we say it is plainly adverse to the plaintiffs’ case and the plaintiffs’ case being in all respects, your Honour, the second limb of the plaintiffs’ case that I spoke of earlier this morning.


HER HONOUR: That is the inability or unwillingness of the State to afford protection?


MR ROBINSON: That is correct, your Honour. These submissions go to that very issue. An identification of some of the adverse material in this document, for example, is set out on page 95 of the exhibit. Virtually the whole of pages 95, 96 and 97, with one paragraph being the exception – that is the paragraph numbered 20 on page 96 – is adverse to the plaintiffs’ case.


I will take your Honour through it briefly. Page 95, for example, the paragraph numbered 9 refers to:


Some Indonesians, particularly ethnic Chinese, have been subject to petty harassment –


and, your Honour, nothing here that the plaintiffs complain of can be described as petty. The economic conditions are blamed for the violence against Chinese and there is what we say is a misplaced faith in the assurances of the new government that are set out there generally as well as a clear presumption that Indonesia is willing and able to protect ethnic Chinese citizens.


The core passage, as it were, is on page 97 in paragraphs 22, 23 and 24 in conclusory language which would carry, we submit, significant weight coming from the secretary of the Department:


The country information strongly suggests that the Indonesian authorities were and are willing and able to protect the nationals of Indonesia.


The whole of this is in the context of ethnic Chinese Indonesian applicants and in 23 the part that is adverse is that in the second line:


all available evidence suggests that the Indonesian Government is embracing a reform agenda that is consistent with the re-establishment and maintenance of internal stability.


The last line of that submission as well is plainly adverse, in my submission.


Needless to say, your Honour, none of this document and none of these adverse materials – it is agreed that not only did the plaintiff not see them but they were not put to him in substance or at all. The contents of these submissions were not put to him in any fashion by anyone and, indeed, the evidence is that he did not even know of their existence until later on.


The next document is described in schedule 2 as b, but is in fact attachment A, at page 99, attachment to what we call the 423 submissions in the agreed facts. It is adverse in the sense that credence is expected to be placed on the assurances of the new President of Indonesia at the time and in relation to the treatment of ethnic Chinese in Indonesia.


HER HONOUR: Where is that?


MR ROBINSON: In particular, the most adverse part of this document appears at page 101, last paragraph. We say it is all adverse, your Honour, but I am taking your Honour to one of the most adverse parts:


President Habibe has sought to provide some assurance to Chinese-Indonesians since his appointment as President. He has sought to end the distinction between Pribumi (indigenous) and non-Pribumi, saying that all those Indonesians committed to being good citizens of Indonesia are Pribumis –


and so on. The Justice Minister saying that they:


will put an end to discriminatory practices in line with quote universal human rights unquote.


Most of what appears on page 102 is also adverse where the military is giving assurances that the state will “protect all citizens”. In attachment B at exhibit page 104 there is talk of the - this is a cable from DFAT – no, I withdraw that. Yes, it is from the Department of Foreign Affairs and in June 1998 after the May 1998 riots and it says what President Habibe will do, he:


will launch a five year national action plan –


and so on. All of that, in my submission, is adverse to the applicant’s case and he has not had a chance to respond to it, as well. Attachment C, which is exhibit page 107, is part of the 423 submissions. The newsreader in the first paragraph quotes the President as vowing:


to stop discrimination against the country’s wealthy ethnic Chinese.


The reporter talks in the last sentence of that page, the President is alleged to have:


issued a presidential decree outlawing discrimination against the ethnic Chinese.


Over the page at page 108, the first two paragraphs. In the first paragraph he says he will delete the special number that is inserted in Chinese passports so as to identify the Chinese. He says he will delete it. So we say that in the 423 submissions that was the package that was delivered by the Secretary to the Tribunal in both Herijanto, and we say in Muin, as well. In Herijanto it was described in detail in the Tribunal’s decision and great weight was, in my submission, attached to it. The next document that I will take your Honour to is described as e(vi). In the exhibit it is at page 209 and 210. We say that is - - -


HER HONOUR: I have got at page 209 an article from the South China Morning Post.


MR ROBINSON: Yes, your Honour.


HER HONOUR: That is it. Yes.


MR ROBINSON: That is referred to as e(vi) in the schedule 2 adverse materials list as a document taken into account by the Tribunal but never put to the applicant and not part of the Part B documents.


HER HONOUR: What do you rely on in that document?


MR ROBINSON: The adverse material - over the page, page 210 – the adverse part of that in the first paragraph, that the police chief says that:


79 people had been arrested –


after a riot:


and security forces were working to restore order.


That is all that there is in that one, your Honour. As I say, this one is only partly adverse. The next document I would take your Honour to is 214. It is a document headed “Clash of Cultures”. It is e(vii). It is an article published in the Australian Financial Review in September 1997. It is only partly adverse, in our submission. If I could take your Honour to that part of it. It is over the page at page 215, the second column, the fourth paragraph. It is not easy to read. It is the paragraph starting with:


Abuses seen in countries like China, Indonesia, Singapore and Malaysia –


It is attempting to provide what we say is a skewed explanation for the abuses in Indonesia. I am not suggesting that particular passage is awfully significant, however, it is adverse. The next page I would take your Honour to is 246. We say this document is all adverse and it is the same document as attachment B to the 423 submissions, so I will not make any further submissions on that. The next document at 427 is attachment C to the 423 submissions. It is adverse. I will not say anything more on that.


HER HONOUR: We have seen this in - - -


MR ROBINSON: I am sorry, your Honour? In a different form. It is the same.


HER HONOUR: Yes.


MR ROBINSON: The next document at page 249 is also attachment A to the 423 submissions and contains adverse material and I have taken your Honour to that. If your Honour could just bear with me or a moment. I am just having a look at the missing pages. There is a document at page 192 which is headed – and this is not in my schedule because I have only just received it this morning – page 192, “INDONESIA: RICH CHINESE AND RIOTS IN INDONESIA”. It is in the schedule – no, it does not appear in the schedule so I cannot - - -


HER HONOUR: I have seen this document, have I not?


MR ROBINSON: There are some documents in this - - -


HER HONOUR: I think this one is also in Part B.


MR ROBINSON: In Part B, but it is - - -


HER HONOUR: And you relied on it for the opposite in the Part B.


MR ROBINSON: I withdraw reliance on this document. It should not be in this section. This section, as your Honour will recall, I said does not only contain the schedule 2 material. It is supposed to but it does not.


HER HONOUR: Yes.


MR ROBINSON: It contains more material than is necessary. That is why I am taking your Honour only to those documents in schedule 2 of the agreed facts. This is not one of them, I am sorry, your Honour. That is all the adverse material that has been relied on in the Herijanto Case that I want to take your Honour to that we say is adverse to the plaintiff’s case. In relation to Muin - - -


HER HONOUR: Does that material also relate to Muin or only to Herijanto?


MR ROBINSON: No, only Herijanto.


HER HONOUR: Yes, thank you.


MR ROBINSON: If I could take your Honour to exhibit B, the second volume, page 184 of that exhibit. I should say this exhibit follows the same pattern, that the first part of the exhibit is the RRT’s file, the second part of the exhibit is the transcript of the hearing in the RRT and from page 184 onwards to the end is the adverse material as set out in the schedule to the Muin agreed facts and that is a three-page schedule in the Muin agreed facts – schedule 2.


HER HONOUR: Yes.


MR ROBINSON: In the first page, at page 184, in the second paragraph it talks of:


Ethnic Chinese having been among the biggest promoters and beneficiaries of the region’s rapid economic growth and their success is often envied –


In my submission, in the circumstances, that is adverse material.


HER HONOUR: Let me alert you to this difficulty with that submission straightaway. There is much material to the same effect in the Part B documents to which you took me earlier.


MR ROBINSON: Yes, I appreciate that, your Honour.


HER HONOUR: Yes.


MR ROBINSON: In the next paragraph, the third paragraph, it has:


The Indonesian Army quickly quelled the melee.


The violence that flared up on that occasion in 1994. In the sixth paragraph the assessment in that newspaper is that:


A repeat of such horrors is not considered likely.


That is something that an applicant may wish to have something to say about. If I could take your Honour to schedule No 4, which is exhibit page 195.


HER HONOUR: I am sorry, page 195?


MR ROBINSON: Muin schedule No 4. It is exhibit page 195 to 196.


HER HONOUR: Yes, thank you.


MR ROBINSON: That is a DFAT cable of July 1998. We say the whole article is characterised as being adverse in that it deals with alleged Government investigation action in respect of riots in July 1998 and in the context of President Habibe having formed a team of ministers to investigate the May riots and to investigate the:


rapes and sexual assaults on Chinese Indonesians during the riots –


and the steps taken by the Government in relation to that. Now, that is something, in my submission, that an applicant would have something to say about and the plaintiffs here, their evidence is that they did have something to say about it and it was quite specific. In respect of document No 5 at page 198 of the exhibit, the whole of that document is adverse to the plaintiff here. There is presidential assurances, lessening of violence alleged, alleged the violence is not spreading, it is alleged that violence is of limited geographic incidence. It is a DFAT cable and it says that the State is willing to protect its citizens, or that at least the President has provided an assurance that that is what will occur. We say that is plainly adverse.


Document No 7 we rely on, page 238. That contains mostly favourable material that I took your Honour to – no, I withdraw that, this was not the document I took your Honour to. This document is mostly favourable in that it sets out a lot of detail about the scapegoating of ethnic Chinese in Indonesia, but on the first page, at 238, in the third paragraph, first sentence:


In none of the dozens of outbreaks of violence chronicled in this report has there been evidence of direct government instigation of the rioters, and the government has been quick to send troops to disturbed areas and arrest alleged ringleaders.


Now, in our submission, the plaintiffs would have had something to say about that. Document 15 of the schedule at page 261 I would take your Honour to. That whole article is mostly adverse, your Honour. I have set out in my submissions in great detail as to why. It is item No 15 of the schedule. The second page of that document at 262, the last six or seven lines commencing with:


AT THE NATIONAL LEVEL, RECENT COMMENTS FROM A SENIOR MILITARY OFFICIAL –


and so on to the end of that page:


THE NEWLY INSTALLED COMMANDER OF THE ARMED FORCES, GEN WIRANTO, WHO HAS STRESSED THAT ANY ATTEMPT TO INFLAME ETHNIC PREJUDICE - - -


HER HONOUR: I am sorry, which page are you at, 262 or - - -


MR ROBINSON: Page 262, down the bottom, the last 10 or so lines, “AT THE NATIONAL LEVEL” onwards, from the ninth line from the bottom to the end.


HER HONOUR: Yes.


MR ROBINSON: The whole of page 263 and the whole of page 264 is adverse – plainly adverse, in my submission. Talk of national unity, small geographical disturbances, large areas are spared significant violence, a strong military presence, limited extent of Chinese who are attacked, for example that ethnic Chinese who are in apartments according to DFAT are safe and they are saying that those ethnic Chinese who are more integrated into Indonesian society than other ethnic Chinese who have not integrated are safer but, still, the security forces can protect everybody, they say. That is the whole of those two pages there.


HER HONOUR: Again, I am not too sure. Perhaps I am confused. The concluding paragraphs says it is doubtful whether the security forces can “provide protection”.


MR ROBINSON: Where is that, your Honour?


HER HONOUR: Page 264. And:


during the recent riots


security forces:


were in some cases outnumbered and did not intervene to stop looting. In any individual circumstance the security authorities have to make fine judgements –


It is the earlier part that you object to?


MR ROBINSON: In the earlier part in 264 with the:


Sino-Indonesians who reside in modern apartment complexes –


as being:


far less at risk of riots than shop keepers in provincial towns –


So that first paragraph we rely on. The degree of integrations in the middle of paragraph D we rely on. In paragraph E the assessment, a few sentences in, starting with:


In general, we believe that the security forces have the ability and inclination to provide this protection to all citizens, although –


It questions the “the speed” and so on, but it is that aspect of it that an applicant really needs to have something to say and they can say it to the Tribunal by way of an expert evidence or by way of adducing of some other evidence or telling of their own experience and their own fears, but this material – this adverse material here was simply never put to Mr Muin, ever. He also only has one name, your Honour. It was simply never put to him and he did not have any opportunity to respond to it. Indeed, it was not said to him that these are the sorts of things, the kinds of things that are being said. If he was told that by the Tribunal then at least he would have been on notice that these are the sorts of things that he could respond to. He was not even told that, your Honour, as part of the natural justice case. We rely on that as being adverse.


Document 16 at page 266 is the same as the annexure A to the 423 submissions and I do not have anything further to say on that. It is adverse and I have made the submissions on that. Document 17, page 270, the first two paragraphs, in an article in the Daily Telegraph in 1998. That gives the appearance of law and order, that article, and if it is taken into account in that fashion, in my submission, that would be something an applicant would have something to say about. Document 19 at 271 is all adverse in the sense that the new Army Chief Wiranto is allegedly asking:


his commanders to be more diligent to prevent negative matters -


in relation to national prejudice and so on. Document 19, the same General is saying that:


the national security system was working well, that there had only been instability here and there.


And, that the army:


would take measures against those performing unconstitutional activities.


Now, in my submission, that is plainly adverse. Document 22, page 275 and so on – the adverse material that we say appears there – that is a DFAT cable. It appears three pages into the document at page 277 where, under the heading, “Government action”, in the second paragraph there:


The Bakom member said that two days after Bakom made this announcement –


that is a political party -


Habibe had ordered the military to conduct an investigation into allegations of the riots –


That is about point 5 on the page – and he:


had also written to ABRI Commander Gen Wiranto with the results of their investigations.


And so on, for the rest of that paragraph. At the end of that page, 277, the last six lines under the heading “Government responses”, and over the page:


the Minister for Women’s Affairs Tutty Alwiyah said that the Government cared about the rapes and other sexual assaults that allegedly took place –


in the May riots and announced a “hotline” and that they are investigating the matter – over the page.


Document 23 in the schedule 2 adverse materials list in Muin is at page 279. That is also about the President’s adviser setting up an inquiry into riots and rapes of Chinese people in Indonesia. The whole of it is adverse in that it sets out a Government alleged response and the President’s independent commission as being announced, in a fashion. Page 281 is also relied upon as adverse. It is the last document. It is at 281 to 282 with the new President ordering “stern action” as set out in the headline. The last two paragraphs on page 281 are plainly adverse in that the new President is making certain statements that the applicant would well wish, in my submission, to have some response to.


Now, all of those documents - if I could take your Honour back to the draft statement of facts in Herijanto ,it is relevantly identical in Muin, that the draft agreed facts is relevantly identical. Paragraph 42(a), we contend that your Honour can find, as a plain fact, that the documents I have taken you to in both Herijanto and in Muin were adverse materials and the definition of adverse materials I will take - - -


HER HONOUR: Yes, but what does this mean? Where did this notion come from?


MR ROBINSON: The definition comes from – it is set out in paragraph 9 of this same document, your Honour. It comes from the practice direction of the Tribunal. Does your Honour see the heading in paragraph 9:


“Adverse material


The applicant will be given an opportunity to respond to any relevant and significant material which is or may be adverse to his or her case.


Now, we say that those words set out what we have defined to be the adverse material. That constitutes, we say, the representation made by the Tribunal that:


any relevant and significant material which is or may be adverse to his or her case -


is adverse material. That is then talked about later on in the practice direction.


The words “adverse material”, are not defined in the practice direction, or in the Migration Act or, indeed, anywhere, to my knowledge. As a matter of ordinary construction, it appears under the heading “Adverse Material”. We would say that the expression, “any relevant and significant material” which is or may be adverse to an applicant’s case, is what adverse material is and how the Tribunal understood it to be, and how the plaintiff understood it to be, and that it included, not just the Kioa v West line of country, that is documents personal to an applicant which natural justice would demand that an applicant be advised of before any decision was made, but that it is expansionary of Kioa v West in that it enlivens or creates the legitimate expectation that documents relating to the plaintiff’s case generally, not just the plaintiff personally, would also be included in the adverse material.


In this case, it is country information and that is what sets this practice direction apart from the ruling in Kioa v West. So, we say that is what adverse material is, anything relevant and significant and, two, we say the second limit of the plaintiff’s case, the country information or the country protection question. So, we say, your Honour can make that finding and the Full Court need not be troubled by having to make that finding in 42(a) of the draft agreed facts. Similarly, I have taken your Honour to 51(a) of the same document, the 423 submissions. We say, plainly, 51(a), on any view of it, that it is relevant to the second limb of the plaintiff’s case. Over the page at - - -


HER HONOUR: Would it not be better, though, to say, at least there, was relevant to the question whether the State of Indonesia was able or willing to provide protection? Would that not be better – I mean, I just mention it for you to think about.


MR ROBINSON: Your Honour, it was more designed from the plaintiff’s perspective to link in to the representation that we say was made in paragraph 9.


HER HONOUR: I see, yes.


MR ROBINSON: It is appropriate, we say, at some point, for the Court to characterise the plaintiff’s case as having two limbs because the defendants deny, it seems to me, or they have some other reason going to relevance, which I am not aware of, that the second limb of the plaintiff’s case exists or that it is not tied in any way to the plaintiff’s case. I do not quite understand how the defendants would put it but, in my submission, it is plain that there are two limbs to the plaintiff’s case, and this is one of them, and those adverse materials go to it. Your Honour, those words can be added into it but I would not want to remove that nexus.


Similarly, in 51(d), we ask your Honour to find in those provisions and the corresponding Muin Case, that the material was adverse. I do not think – I notice the time, your Honour.


HER HONOUR: Yes. Two o’clock, a convenient time?


MR ROBINSON: Thank you, your Honour.


HER HONOUR: I take it you have finished adverse - - -


MR ROBINSON: I have finished adverse material.


HER HONOUR: Good, thank you.


MR ROBINSON: I can tell your Honour, after lunch I will take your Honour to the written submissions on inferences to be drawn, that I have handed up - that is the four page document - and what I term the integrity of CISNET, generally. I will take your Honour to that as well.


HER HONOUR: Very well. We will adjourn now until 2 o’clock.


AT 1.00 PM LUNCHEON ADJOURNMENT


UPON RESUMING AT 2.00 PM:


HER HONOUR: Yes, thank you, Mr Robinson.


MR BASTEN: Just before my friend returns, I think perhaps I should indicate the Registrar has copies of the schedules that go with each of the draft statement of facts. If they could be added to your Honour’s copies, it may be better to have a complete document.


HER HONOUR: Thank you.


MR BASTEN: I am sorry we did not do that before.


HER HONOUR: Yes.


MR BASTEN: The other think I was going – I think I offered to your Honour before lunch, was a typed version of the document my friend – you have it, I am sorry - my friend handed up in handwritten form, which were three comparative tables of the Part B documents. Could I hand up a copy of those to your Honour? They may be easier to read.


HER HONOUR: Yes, thank you.


MR BASTEN: Thank you, your Honour.


HER HONOUR: Yes, thank you.


MR ROBINSON: Your Honour, I would like to make submissions on the second point I mentioned immediately prior to the luncheon adjournment, that go to paragraph 20 of the Herijanto agreed facts. Paragraph 20 is not agreed and in the context of the document as a whole – has your Honour had an opportunity to - - -


HER HONOUR: I have glanced at it, yes.


MR ROBINSON: Thank you. Your Honour, the paragraph that I should say should be married with it, or in some sense read with it, is 29. Your Honour might recall the proposed 29(c) was the occasion for the vacation last time but now it is turned into 29. Your Honour should read that, please.


HER HONOUR: Yes.


MR ROBINSON: Now, that sets out the context of which CISNET was delivered to the first defendant’s computer servers. In paragraph 20, what the plaintiffs were seeking to establish is merely what I termed earlier, the integrity of the database. We do not challenge the integrity in the full sense of that word. What we do say, though, is it was a database having the character set out in paragraph 20. I will take your Honour in a moment to the evidence which we say supports it. In relation to the last sentence of paragraph 20, that has now appeared in paragraph 29 of the same document, where it says in that paragraph:


Documents were removed from the.....databases from time to time for various reasons.


So, the last sentence is no longer required.


HER HONOUR: The last sentence - - -


MR ROBINSON: In paragraph 20. In relation to the first sentence in paragraph 20, I do not think that that is in serious contention between the parties. I think that the primary reason for my learned friend’s objection to it might be on relevance rather than on accuracy. But be that as it may, if it is on – he says it is on its breadth, but your Honour, in terms of the actual documents concerned, I do not think it is contested, for example, that the printout of – if I could take your Honour to the Herijanto Part B list, schedule 1, item No 2, the first item that appears at the back of this agreed facts document - - -


HER HONOUR: Yes, this is “The Minority Rights Group.....Report”.


MR ROBINSON: Your Honour will recall, I took your Honour to what was the whole of that document earlier today, a large document. The version that appears in CISNET is an extracted version, which I am just attempting to find now, your Honour, to hand up to your Honour. But I do not think it can be contested that it is not other than an extract of the article or the paper called “The Chinese of South East Asia”. I tender CISNET REPORT, known as CX4046.


HER HONOUR: It will become Exhibit E then. That is not objected to.


MR BASTEN: May I just say why this is problematic? The document which your Honour was taken to this morning was indeed a document which was complete and went well beyond Indonesia. What my friend has had access to is that part of CISNET which relates to Indonesia. Therefore, what he has taken off CISNET is that part of the document which is in the Indonesia section of CISNET. Now, how it will assist your Honour, I do not know. What we said about paragraph 20, and I have said it to my friend, is that we might well be able to agree to it if we knew which documents he was concerned about and why? It is just too broad in its present form. I am not sure that, with respect, an argument about whether there are individual documents and showing individual documents to your Honour, will assist your Honour to make a finding other than in relation to those documents.


HER HONOUR: Yes. Perhaps we had better go through the documents you say.


MR ROBINSON: With respect, your Honour, to my learned friend, I have done that. I have set out, to his junior, in detail, what I am about to take your Honour to and he has agreed that the individual documents that I am about to take your Honour to are as I am about to say they are. So, in that sense, if the objection is to the breadth of it, then that may well succeed as an objection. But, your Honour, it only takes one document, as it were, to make this point, and this is a document that is in the bundle – the source of this document is identified as CISNET in Item 2, schedule 1 – CISNET numbered 4046.


As we understand it, we have a printout of that and it is conceded, as I understood it, that that is the printout of that document and that is the source of the document on CISNET. So, it is merely to make the point, your Honour, that this document is an extracted version. The document itself is found in Exhibit A as the first Part B document in the – exhibit MPB1, the first folder, at page 69. I can tell your Honour what is omitted – if your Honour looks at pages 69, 70, 71, right through to 81 inclusive, all of that is not reproduced on CISNET.


HER HONOUR: Yes, but a lot of that is not relevant, is it?


MR ROBINSON: Your Honour, in my submission, it is relevant.


HER HONOUR: Well, for example, 80 is Malaysia.


MR ROBINSON: Your Honour, page 75 contains an historical overview of early Chinese settlers in the region, including Indonesia. A map of the region is set out in 76. “Levels of Assimilation” in the region is dealt with in 77. My submission is that is background material. Whilst Malaysia and the ASEAN states might not be strictly relevant, in my submission, that is not the point. The point is that the CISNET database version of this document is not the full text of the original article. On page 82, under the heading “Indonesia”, the author is not reproduced in the document, so the CISNET version contains no reference to who the author was.


Everything in the box, on page 82, that I took your Honour to earlier today, is not reproduced. The text of the article starts from the words “The largest of the ASEAN states, this archipelago”, and so on, and what is reproduced there is the remainder of pages 82 to 85 inclusive. It is that which has been typed into the CISNET database. Pages 86 onwards to 108 are not reproduced, including the relevant pages at 102 and 103. Page 102 forms the “Conclusions”, which generally address the conclusions of the author’s assessment of - - -


HER HONOUR: Yes. What is there in that page, with respect, to Indonesia?


MR ROBINSON: Well, in respect of Indonesia specifically, it does not refer to Indonesia specifically, your Honour.


HER HONOUR: Yes, it does:


for example in Burma and Indonesia, a minority can be used time and time again as a scapegoat –


MR ROBINSON: Yes, your Honour. In 102 in the right-hand column, the first paragraph, the last few sentences:


In the last few decades.....many governments in the region, such as those in Indonesia, Malaysia and the Philippines, have placed limits on Chinese language education. Some have discouraged the public use of Chinese.


HER HONOUR: But the conclusion is really just a summary of what appears in the main body, is it not?


MR ROBINSON: Yes, your Honour. Over the page on 103, and the next page, are the bibliographical notes relating to Indonesia, the pages that are in CISNET, but the footnotes, the bibliographical notes, are not there at all, and nor is the select bibliography, which appears at pages 105 and 106. So, the short point of it is, your Honour, it is merely an extract and it is not just any document in CISNET, it is a document that is one of the documents in these proceedings. In my submission, that is sufficient to found the general reference that not all - - -


HER HONOUR: Yes. However, that is not going to be a very helpful statement for a Full Court considering these matters, is it?


MR ROBINSON: Well, your Honour, the second sentence in 20 - - -


HER HONOUR: I mean, when I say it is not a full statement, one would have to go on to say, would one not, in the case of this document, that they were admitted, what was admitted, like the background information, conclusions which summarise the article of bibliography, and so on. Otherwise it would not be meaningful - - -


MR ROBINSON: But that may be okay, your Honour, for this one document, but there are other documents that are summaries of the original articles or extracts of them, and they can be identified, for example, item 5, in the same schedule 1 in Herijanto, is an extract, and it says it is an extract on the face of the document. Now, the original decision maker used, it appears, that document, not the original document. So, the original decision maker here apparently used the extract as well. That is plain on the face of the document, so that extracts are used by the original decision makers.


HER HONOUR: Well, that does not take you very far, does it?


MR ROBINSON: Well, the same for item No. 33, your Honour. That is an extract as well. I am not suggesting any evil or approbation in this, I am only saying it is a general statement when I do not rely on it any higher than that, your Honour, that this is the character of the CISNET database. It has documents which are not faithful reproductions or scanned images of the whole of the original articles, it has documents which are extracts of the original articles. It is no more than an introductory statement to appraise the Court of the character of the database. I do not put it any higher than that, your Honour. If your Honour regards it as unhelpful, or not pertinent, then I cannot put it any higher than that.


HER HONOUR: Yes.


MR ROBINSON: In respect of the second sentence, that some of the documents were abstracts or summaries, and the third sentence, some of the documents - - -


HER HONOUR: Now, again on that one, you would have to know, though, if it were to be of any relevance, whether there was any difference between those that were seen by the original decision maker and the database material that was sent to the Tribunal for it to be of any significance.


MR ROBINSON: Your Honour, in that case, the only document that we have identified is item 2 in Herijanto. The only documents in that - - -


HER HONOUR: Which is the Minority Rights Group.


MR ROBINSON: That is right, your Honour, and that is in Herijanto. In Muin, it is that same document which appears at item 5.


HER HONOUR: So, this document – you say the original decision maker had the full article?


MR ROBINSON: Well, your Honour, it appears so, and the Tribunal had the extract, or at least had access to the extract article. That is all that I can say, your Honour. That article appears in all three schedules or all three matters - five in Muin and two in Lie. As far as the second and third sentences about abstracts and index entries, and so on, I take your Honour to Mr Joel’s affidavit. There are a few pages in there that go to this issue.


HER HONOUR: Yes, but where does that issue go in terms of your case? If the original decision maker had only referred to the abstracts or summaries, and the Tribunal had access to the abstracts or summaries, where does that second sentence take you?


MR ROBINSON: Your Honour, it does not take us very far. As I said, it is only background as to the character of the database. It was not intended, as the plaintiff has put it, to go to the precise documents in this case, except and to the extent that I have indicated already.


HER HONOUR: Yes.


MR ROBINSON: Bearing in mind the linkage to paragraph 29, that this is what is being sent regularly and updated regularly, in my submission, it is as relevant as that to know what is being sent and what is contained in it generally. Unless paragraph 29 ought to specify when those documents which were or ultimately were referred to in the Part B list, were sent via electronic transfer to the Tribunal’s computer server in Sydney and Melbourne, that has not been identified except by, perhaps, inference some days after the document was added to the database. But if I could take your Honour to Mr Joel’s affidavit of 27 March, annexure B to that affidavit, which is 251 pages. It should be the second tab, annexure B - - -


HER HONOUR: Yes, I have it.


MR ROBINSON: The numbering is in small letters, I am sorry, your Honour, in the top right-hand corner. If I could take your Honour, firstly, to page 169 which shows what document I am taking your Honour to. That is the “Department of Immigration and Multicultural Affairs Procedures Advice Manual” known as PAM. In this case, it is the third version of the manual, so it is known as PAM3. That is a document prepared by the Department, primarily for the benefit of protection visa decision makers such as the three delegates in these proceedings. If I could take your Honour then to page 204, on the top right corner.


This is a section of the manual dealing with “Onshore Refugee Procedures” and explaining to the delegates what the “Country Information Service” of the Department is about. I should go back one page, your Honour, to paragraph 3.2.2, where the types of information assessed by the Minister’s delegates here is set out as (a), (b) and (c), “Applicant-sourced”, “Department-sourced evidence” and “Country information reports”. So, (a) and (b) - well, (a), certainly, is the first limb of the plaintiff’s case - that is as I put it earlier – and (b) and (c), to some extent, is the second limb, the country based information.


Now, back to 204, the objectives of the CIS is set out there. The responsibilities of the Country Information Service section, which is called CIS, is there. Two pages on at page 206, in the middle of the page, is a heading “CISNET – Basics”. Now, CISNET is generally described in that section, 3.5 – the electronic databases of CISNET, I should say, are described there. “CISNET – Basics” is the main, as it were, database that contains country information specific to individual countries. If I could take your Honour to the second paragraph there, 3.5.4:


Entries in the database are either ‘full text entries’ or ‘index entries’. ‘Full text entries’ provide the complete text of the item in the database. ‘Index entries’ list relevant hard-copy information which are considered too long to be entered in full text in the database, and provide reference to the physical location of the information outside the database.


A few pages on at page 210 in the section 3.8 “Citation guidelines” there are references there as to how CISNET material should be identified. It is usually, your Honour, with a “CX” followed by a number. The last item on that page, 3.8.6 it is said:


When supporting evidence is obtained from one of the electronic databases, it is important to clearly indicate the source so that there is no confusion over which particular version of the electronic record was used.


Now, the clear inference there, in my submission, is that different versions of the documents are held on different databases.


HER HONOUR: Could you say that again? Different versions - - -


MR ROBINSON: Different versions of the documents appear in different databases and even though the CISNET database is referred to as a single database it is, in fact, comprised of a number of databases.


HER HONOUR: Does that go to the false - - -


MR ROBINSON: It does not go to any specific thing, your Honour.


HER HONOUR: Well, the sentence I am reading here in paragraph 20 is:


Different versions of the documents on the database were kept on the database at different times.


MR ROBINSON: Your Honour, it should be “databases”. “Different versions of the documents on the databases were kept on the databases at different times”. To the same effect at page 212 paragraph 3.8.14:


Citing information from electronic databases should be done with reasonable care to detail so that the version of the particular record may be identified.


That is all of the evidence that I want to take your Honour to in relation to paragraph 20.


HER HONOUR: Yes, thank you.


MR ROBINSON: In respect, and I do not put it any higher than material that identifies that which is being transferred under paragraph 29.


HER HONOUR: Yes, thank you.


MR ROBINSON: It is appropriate, in my submission, to flesh out the concept of what CISNET is and what it is made of and in order to appreciate what is being sent, I cannot put it any higher than that. In relation to my final category of submissions, they go to the inferences we ask your Honour to draw. I gave to your Honour this morning a four-page summary submission on the inferences to be drawn.


HER HONOUR: Yes. Thank you. Yes, I have that.


MR ROBINSON: Thank you, your Honour. Mr Joel’s affidavit will be the only document I will be taking your Honour to. The category of inferences that is dealt with in this submission only is set out in the third paragraph there, that the Tribunal “did not read” the Part B documents or “did not have” them “before” them and did not read them or “consider” them may be an appropriate word.


HER HONOUR: Now, when you say the third paragraph, the third paragraph?


MR ROBINSON: The first page, the third paragraph.


HER HONOUR: Yes.


MR ROBINSON:


These submissions go to the question –


HER HONOUR: Yes, thank you.


MR ROBINSON: Now, this is the matter that my learned friend has set out in the draft stated case that he would prefer to see go to the Full Court.


HER HONOUR: Yes, well I will hear you first and we will see what happens at the end of the day.


MR ROBINSON: I have set out the legal submissions in relation to the appropriate drawing of inferences. The cases that we rely on are set out there and I can take your Honour to those if your Honour would find that of assistance but the principle, in my submission, is plain, that we say this is an appropriate case for an inference to be drawn in the fashion that we seek.


The evidentiary basis for drawing the inferences is set out on page 3 of the written submissions and the paragraphs there are numbered, your Honour. Firstly, we say the Tribunal did not receive a copy of all of the Part B documents because they were all never physically sent by the Tribunal, either in hard copy or electronically.


Now, we say that, your Honour, because notwithstanding that the CISNET database was updated, amended from time to time and delivered to the Tribunal’s server on evenings during the week, all of the Part B documents are not, and were not, on CISNET and that much is plain from the schedules that your Honour has - - -


HER HONOUR: Is it not sufficient, not all Part B – yes, all right. Do we know what they are?


MR ROBINSON: Yes, your Honour. We are able to identify them with some precision. In relation to Herijanto schedule 1 of the agreed facts, these are the non-CISNET documents, your Honour, document 3.


HER HONOUR: Wait a minute. I have lost that. Yes. Are we working from that document?


MR ROBINSON: Yes, your Honour, in Herijanto.


HER HONOUR: Yes.


MR ROBINSON: Document 3.


HER HONOUR: It says “CISNET”, no, 3. Yes, sorry. I see. If it does not say “CISNET”-


MR ROBINSON: It is not on CISNET so it was not transferred.


HER HONOUR: Yes.


MR ROBINSON: And we know that a hard copy of nothing was sent, your Honour.


HER HONOUR: Yes.


MR ROBINSON: Document 7, documents 8, 10, 12, 17. We do not rely on 12 and 17 by the way, your Honour, because we would expect that the Tribunal would have 17 and it being such a significant document I cannot fathom that they have not got it already. Similarly, document 12, I think, is mentioned in the Tribunal’s decision itself so we do not rely on the absence of that. Documents 19 and 20 – document 19 we do not rely on in this case as well, your Honour. Document 21.


HER HONOUR: What about 20? Do you rely on that?


MR ROBINSON: Documents 21, 35, 36 and 37. Yes, we do, your Honour.


HER HONOUR: Yes, thank you.


MR ROBINSON: So they are the documents that were not transferred electronically or on paper in Herijanto. In Muin schedule 1 it would be document No 2.


HER HONOUR: It would be 2.


MR ROBINSON: But we do not rely on that, your Honour, being a CLR case. Document 3, but we do not rely on that. We would expect they would all be familiar with Hathaway at the Tribunal and similarly, document 4 – we do not rely on that as well. My instructing solicitor is just reminding me back in Herijanto your Honour did take note that 35, 36 and 37 were not sent, the last three in Herijanto.


HER HONOUR: Yes, they are relating to corruption. I should not have thought that was a big feature of your case, but I have noted them.


MR ROBINSON: Thank you, your Honour. Back to Muin - 7, 10 – but I understand that is now on CISNET. I will look at the new version of that. Just a moment, your Honour. 10, 13 – I should say on 13, ISYS is an RRT internal database created by the Tribunal for the Tribunal. It has nothing to do with the Department. Nos 13, 14, 15, 19, 20, 27, 28, 29, 30 and 31 and, your Honour, document 16 as well. I was working from an earlier version of this, document 16 as well.


HER HONOUR: Yes.


MR ROBINSON: In relation to Lie schedule 1, the Part B list, document item 2 we do not rely on that. That was on CISNET, I am sorry, your Honour. Document 7 was not on CISNET.


HER HONOUR: What about 3?


MR ROBINSON: Item 3, 7 – but we do not rely on 7, your Honour, 8 - - -


HER HONOUR: What do you mean that you do not rely on 7?


MR ROBINSON: I mean the Tribunal referred to it in its decision so we concede that they had it somehow and we do not take issue. Item 8, 10, 12 but we do not rely on that, your Honour, because they had it; 17, but we do not rely on that because we expect they had it; 19, 20 and 21. Your Honour will note there that those documents appeared on CISNET after the delegate’s decision in that case. That occurs a number of times throughout this document and that is all in that case, your Honour.


The second submission in relation to the drawing of these inferences at page 3 of my submissions is that the Part B documents were plainly material and relevant to the Tribunal’s review of the delegate’s decision and that much is conceded, your Honour, in the statement of agreed facts. There is no reference at all to them, or a substantial number of them, in the Tribunal’s reasons for decision and we say in that regard the Tribunal is under a duty to refer to the evidence or any other material on which the findings of facts were based.


Your Honour, my learned friend has quite rightly pointed out, and I withdraw the suggestion, that the first sentence in paragraph 2 of my submission is agreed. It is not agreed, I think for reasons of relevance but, either way, I withdraw what I said earlier. But in any event it is our contention that they are plainly material and relevant to the Tribunal’s review of the delegate’s decision.


If I could take your Honour to The Minister v N1038 [2000] FCA 1095, which came down a few days ago. It is in the bundle of relevant cases,No 6.


HER HONOUR: Yes, thank you.


MR ROBINSON: That is a case where the Tribunal’s decision was set aside by Justice Tamberlin at first instance in the Federal Court. It came down on 9 August in the Full Court. It was a case involving refugees from Romania and the court ultimately held that the written reasons in this case did not refer sufficiently to the evidence that it must have had reliance on. Similarly, the Federal Court had some things to say about the Tribunal conducting a hearing and waiting to monitor the situation in the applicant’s home country and then taking some of that information, or monitoring, into account after the hearing and after the parties had gone away without telling the parties what information it was that it took into account.


Now, the court took the view here that it was the fact that the Tribunal took this information into account and that was the appropriate construction of the Tribunal’s reasons, according to the Federal Court, and that is reflected in paragraph 22 of the judgment where the court says:


On the other hand, if that paragraph in question is to be construed as a statement that, at the time of reserving its decision, the Tribunal had some residual doubt that it wished to dissipate, and that, as a consequence of “monitoring the situation”, that doubt had been dissipated, it would follow that the Tribunal’s findings of fact were, at least in part, based on that monitoring. However, the Tribunal’s reasons do not refer to any evidence or other material received after 4 June 1997 -


Stopping there, that was the hearing date, your Honour –


upon which it based its decision. The Registry’s letter of 16 October 1998 refers to “Human Rights Reports” –


Just stopping there, that was a letter sent to the applicant saying that the Tribunal had monitored the situation in the applicant’s home country over the last 15 or so months, I think it was, and that the Tribunal member had looked at human rights reports in that period –


although there is no mention of those in the Tribunal’s reasons.


The reasoning of the Tribunal, they say, in paragraph 23 rather suggests that:


the Tribunal had some residual doubt. The reasons ultimately published indicate that that doubt was dissipated by something. The reasons do not state what it was that the Tribunal took account of in that regard.


24. In the circumstances, the preferable construction to be given to the paragraph –


that is, of the Tribunal’s reasoning –


is that the Tribunal did entertain some residual doubt as to whether or not there was not a real chance that the respondents may be at risk of persecution for a Convention reason. Accordingly, it follows that the Tribunal’s reasons do not refer to the evidence or other material on which at least part of the findings of fact were based.


It will set aside, your Honour, the decision pursuant to section 430(1) of the Migration Act as a procedural ultra vires ground in the Federal Court. Now, your Honour will also be aware that in MacKeigan v Hickman it was referred to as, by Justice Lamer at page 806 - - -


HER HONOUR: I do not think I know this case.


MR ROBINSON: Page 806.


HER HONOUR: Yes, I have it here.


MR ROBINSON: The top left-hand side, the first paragraph:


What evidence a court relies on for arriving at a given conclusion is an integral part of the adjudicative process. This requires decisions pertaining to the admissibility of evidence, and then an assessment of the weight to be given to it and its effect on the outcome of the case applying the rules pertaining to the burden of presentation of proof and that of persuasion. The extent to which a court reveals these matters in a judgment is equally an integral part of the adjudicative process. Of course, courts should normally disclose in their judgment the basis for their decisions and, when relevant, the evidence it has decided to rely upon. However, if a court chooses not to do so, it may well, in some circumstances though surely not in all, have failed in its adjudicative duties but not in any administrative duty, and the justices cannot be compelled by the executive as witnesses to clarify and add to their judgment.


Your Honour, we say in all three matters here the Tribunal effectively made findings going to what we characterise as the second limb of the plaintiffs’ case, that is that they made findings concerning the status of the country concerned and the level of or efficacy of the State protection there. These are findings of fact to which this material was plainly relevant, in my submission. Absence of a reference to the Part B documents here must mean that the Tribunal did not consider them here. That is our primary submission in relation to this - the Part B documents, the bulk of them - - -


HER HONOUR: The bulk of the Part B documents to which you took me to this morning - - -


MR ROBINSON: Are not referred to in the Tribunal’s decision.


HER HONOUR: No, but the bulk of the ones you took me to this morning were concerned with riots, pillaging, looting, rioting. There was some reference only to capacity of the authorities to provide protection.


MR ROBINSON: Yes, your Honour.


HER HONOUR: But it was limited - so it may be necessary – well, I will see what inference you are asking me to draw later but the bulk of them were concerned with the factual situation rather than the capacity or willingness of the government to provide security.


MR ROBINSON: Your Honour, the two are combined, in my submission.


HER HONOUR: Yes.


MR ROBINSON: It is two sides of the one coin. The situation in the country, as dire as it is, and the other side of the coin is the capacity of the State to protect its citizens, so it is really the country situation that forms the second limb of the plaintiffs’ case and if I indicated earlier to any different effect, I did not intend to limit it in that fashion, your Honour.


HER HONOUR: Very well, I understand it now.


MR ROBINSON: It is really two sides of that one subject and the government’s response really covers both. The government’s response that I have taken your Honour to, particularly in the 423 submissions, says that the rioting has calmed down, everything seems to be okay for the moment, the future looks rosy as it were, and deals with the State’s ability to protect its citizens. So the government’s responses also reflect that two-sided coin.


In paragraph 3 of the submissions we say that the Tribunal is required under the statute to return documents to the Department and to give the Secretary specific documents. Well, there are no such documents here. I do not press that as being awfully significant, your Honour, in the scheme of things but it is something that I will trouble the Full Court with but your Honour does not need to be troubled with that.


In relation to file notes, we say there should be a file note, a research request or some recording on the files in these proceedings of some description that evidences that the Tribunal members, as constituted here, received and considered all of the Part B documents.


Now it is conceded that in the discovery, and your Honour was handed a single page earlier today which will be replicated in respect of - your Honour has only received it in Herijanto but it will be duplicated in Muin and Lie. It is agreed that no document discovered by the first defendant to the plaintiff during the course of the proceeding, other than those that appear in the Tribunal’s decision, records or notes in any fashion that the member sought access to, by any means, obtained access to by any means or read, considered or took into account the Part B documents during the time that the member was constituted and the time the decision was made.


Now in the premises here, which I will take your Honour to, it is our submission that there should be some reference. Normally, in administrative law terms or in constitutional writ proceedings, might be the better expression, all that is required is that the absence of the reference to the material in the decision. But in this particular case we are not dealing with a court - It is an administrative tribunal here - and we say there is a particular factual premise from which to mount a further submission and that further submission is this, the importance of maintaining file notes by the Tribunal members is set out in the Registry Manual and I take your Honour to that. It is at page 34 of annexure B to Mr Joel’s affidavit. That is at the top right-hand corner, 34. That is the Registry Manual of the Refugee Review Tribunal in annexure B to Mr Joel’s affidavit. Volume 1 is the introduction to it. On page 36, particularly at paragraph 1.1.3:


The Registry Manual covers a broad range of policies and procedures relating to the processing of applications for review and while it establishes a series of steps to be followed for each application, each one must be processed as an individual case.


On page 73 of that document, attached to the manual, your Honour, is a series of Tribunal circulars. They are called “ADMINISTRATIVE CIRCULAR” circulated within the Tribunal structure. This one is headed “FREEDOM OF INFORMATION PROCEDURES” and at paragraph numbered 7 is a reference to the file-noting procedure:


Members who have control or possession of Tribunal or Department of Immigration and Ethnic Affairs files must provide ready access to staff requiring them for the purpose of satisfying FOI requests and, if they are aware of loose documents (including Members’ personal working notes in either hard or soft copy) –


“soft copy” presumably meaning, of course, electronic versions –


which should be on file, must arrange to have them placed on file before the FOI process takes place.


I would also take your Honour to page 78 where it is another administrative circular dealing with decision finalisation processes within the Tribunal. Item No 3 or paragraph numbered 3, this is about folioing RRT files:


As soon as practicable after receipt, the CMT –


now, that is Case Management Team within the Tribunal –


or Member must –


(i) attach all appropriate original documents to the RRT case file;


and


(iii) allocate a folio number to each document;


If I could take your Honour also to page 107, that is volume IV of the manual, “General Policies and Procedures”, that is the heading, page 111 deals with:


the procedures for handling files and making file notes. The context in which the RRT works that files are often released for FOI and used as evidence in matters before the Federal Court. It is imperative, therefore, that RRT files are maintained professionally and scrupulously, and that all papers are folioed and filed promptly.


Similarly, over the page in 112, paragraph 2.2.1:


All file notes/records for which officers are responsible must be legible, signed, dated, and written(or typed) in a way that others can readily understand. The importance of making accurate file notes is underlined by Federal Court rulings on the issue.


There is a reference in the next paragraph to the RRT Style Manual noting:


that file notes are an essential element of record keeping –


But, your Honour, as is agreed, there is simply no reference anywhere to any file note or document recording that the Part B documents were received and read. If anything, your Honour, that would give the Court greater confidence in making the finding that we seek based upon the absence of reference to the documents in the Tribunal’s decision, if anything. But we say it is capable of establishing it in its own right, in any event. In the alternative, it would give your Honour confidence to make the finding in relation to the absence of the material from the Tribunal’s decision.


In paragraph 6 of the submission reference is made to the letter from Mr Wilson of the RRT, that is exhibit D in these proceedings, that is the letter to the Australian Government Solicitor. Paragraph 3:


file notes are entered electronically –


I should say, your Honour, this relates to Herijanto only, this document.


HER HONOUR: Yes.


MR ROBINSON: Everything else I have taken to your Honour so far relates to all three cases. Paragraph 4 as well:


The member himself has advised that he does not have any notes.


The second page is just there for completeness and that is an example of what is printed out from the file notes. It was called the CMS, Case Management System, an in-house system of recording file notes, so when one telephones the Tribunal, I presume that it is keyed into an electronic notepad, as it were, and they are collected and when they are printed out for the purposes of court proceedings, this is the form in which it appears. So this is the kind of document, amongst others, that we were looking for in discovery and did not see.


Finally, and generally, your Honour, the evidence is complete for both sides in these proceedings. The issues have arisen plainly on the pleadings and plainly in the course of the preparation of these proceedings and, indeed, the very submissions that I am dealing with now, your Honour, were given to your Honour and given to the other side, or an earlier version of them, in identical terms in paragraph 7 on page 4 on 19 July this year:


The Tribunal members have chosen not to participate in these proceedings –


at all –


as an active party or by way of seeking to adduce evidence.


That, in and of itself, in my submission, would also permit the Court to make the appropriate inferences here. It is just not enough to say, in my submission, that they are not compellable because, really, they are able to come and there is nothing to stop them from coming. All that their having status, a special status, as Tribunal members, and their compellability, it only goes to that and nothing more, in my respectful submission.


If the issues are fairly raised on the pleadings, and if there is any acceptable evidentiary basis for the submission and for the inferences to be drawn, then it is quite appropriate, in my submission, for the Tribunal member to come along and put on an affidavit. We may well not be permitted to cross-examine them in judicial review or constitutional writ proceedings, and frankly, your Honour, I would expect that to be the case that there would be some resistance to any attempt to cross-examine a Tribunal member who puts on an affidavit, depending on the circumstances, of course. But they have put on nothing here and, in my submission, it is appropriate for an inference to be drawn.


That also clearly comes out of the cases that I have referred your Honour to, particularly in the English Court of Appeal in Warren v Warren where it says, in short, there that the Tribunal members, even though they are not compellable to, in appropriate cases, they can still attend and still give evidence. That is at page 497 to 498 – it is not an integral part of their decision, but in that case, as your Honour knows, the Court of Appeal in England held that superior court judges at least are not compellable, full stop. But they say there that that does not stop them from coming along in appropriate cases and giving evidence, pages 497H to 498A. That is all that I can submit to your Honour on the evidentiary basis for drawing the submissions.


HER HONOUR: What is the precise inference you seek? Is that in a paragraph?


MR ROBINSON: No, your Honour. It did appear in the earlier version but because the draft agreed documents was in a living form up until 9.20 this morning, I would have to do it by taking your Honour to the actual passages in the agreed facts. If I could do that, your Honour?


HER HONOUR: Yes.


MR ROBINSON: All the inferences that we ask your Honour to draw are set out there and, for example, in Herijanto, it is 34 and 40 on the matters I have just addressed, your Honour.


HER HONOUR: Now, let me say this - at the moment – yes 34 and, yes, those numbers correspond, yes, thank you. Yes, that is OK.


MR ROBINSON: I have not taken your Honour to the authorities. If your Honour would be assisted by that, the principles are well known.


HER HONOUR: Yes.


MR ROBINSON: In my submission, they apply to Tribunal members as well and there is High Court authority on the question, as well as the Federal Court cases that I have set out there. Unless your Honour would - - -


HER HONOUR: What is the High Court authority?


MR ROBINSON: The High Court authority is Kentucky Fried Chicken v Gantidis, that is case No 3 at pages 684 to 685. At the top of 684 – and this is a case where – he says at the top 684, his Honour Justice Stephen:


It is because I take a rather different view of each of these two factors that I have been led to a conclusion different from that of his Honour. I do not believe that the failure of the Tribunal to make any mention in its determination of the issues debated before it justifies the inference that it failed to have regard to those issues: there was, I think, no error of law –


Now, his Honour sets out the passage there, setting out:


the process by which it arrived at its conclusion –


and at the bottom of the page, his Honour says:


It follows that the Tribunal’s decision makes no attempt to set out and adjudicate upon any factual issues, let alone give its reasons for any such adjudication. Instead it does no more than state the ultimate conclusions it has reached upon factors to which the –


relevant –


ordinance requires a responsible authority to have regard. That it should do this and no more is entirely in keeping with the legislation under which the Tribunal operates. Its role as an appeal tribunal is, so far as presently relevant, to reconsider afresh the outcome of applications previously made to responsible authorities and determined by them.


To the next paragraph:


What it did about these criteria was to state its conclusions.


We say that differentiates that from this case, your Honour.


In no real sense did it give reasons for its determination. Since its statement of these conclusions was therefore no partial statement of reasons, failure to refer to the evidentiary matters submitted to it by the parties provides no ground for an inference that it failed to give consideration to these matters.


So, your Honour, there is recognition of the principle that is applied in the other cases, in the Federal Court cases that I have given to your Honour.


The other High Court case in which this issue is touched upon is Repatriation Commission v O’Brien, a decision of this Court. It is tab No 8 of the bundle. That was a case dealing with the Repatriation Commission in 1985. Page 446, point 3, the principle is discussed by his Honour Justice Brennan, from the third line down, says:


If a failure to give adequate reasons for making an administrative decision warrants an inference that the tribunal has failed in some respect to exercise its powers according to law (as, for example, by taking account of irrelevant considerations or by failing to consider material issues or facts), the court may act upon the inference and set the decision aside. In such a case, the exercise of the statutory power to make a decision is held invalid not because of a failure to state the reasons for making the decision, but because of a failure to make the decision according to law –


and at the end of that paragraph in this particular case his Honour did not warrant - an AAT decision was appealed there. The reasons did:


not warrant an inference that it failed to review the Commission’s decisions according to law.


Your Honour, the principle is still there and is still - - -


HER HONOUR: What is that - I do not quite understand the principle you are asserting is involved in these two cases, that I can draw an inference from the failure to refer to the materials in the reasons for the decision?


MR ROBINSON: Yes, your Honour, that is the principle that we are saying, yes, your Honour. If they do not state it, they did not consider it.


HER HONOUR: But in your case, you do not put it simply on that basis?


MR ROBINSON: Primarily, yes, your Honour. The other arguments - - -


HER HONOUR: You put it on the basis that some of the documents were not on CISNET?


MR ROBINSON: Were not?


HER HONOUR: On CISNET, were not sent and there are no files notes - - -


MR ROBINSON: Yes, your Honour, and they are not referred to in the decision.


HER HONOUR: Yes.


MR ROBINSON: All of those would give - - -


HER HONOUR: But you put it on a combination of facts, and not simply the failure to refer?


MR ROBINSON: We say, at first instance, failure to refer is enough. In the alternative, failure to refer, combined with the other factors that your Honour has mentioned, is how the argument is put, your Honour.


HER HONOUR: Yes.


MR ROBINSON: Failure to refer is touched upon in those High Court authorities that I took your Honour to and it is fleshed out in greater detail, the principle in the Full Federal Court and other authorities set out there, and also in the New Zealand Court of Appeal in the Fishing Industry Case. The principle does not appear as simply and as barely as I put it, your Honour, but, in my submission, the principle is there that if it is

material and if it is relevant, the Tribunal has a duty under the Migration Act itself to refer to it and that appears at section 430 of the Migration Act.


HER HONOUR: Yes.


MR ROBINSON: We are not putting it here as a reason for setting aside the decision but in 430 when it makes its decision it has to set out its findings and so on, but in 430(1)(d) your Honour does not need to be troubled by the principle, your Honour can decide it, as it were, by reference to section 430(1)(d) that the Tribunal is obliged to do this. They are my submissions, your Honour.


HER HONOUR: Yes, thank you, Mr Robinson. Are you ready, Mr Basten? You are happy to continue?


MR BASTEN: Yes, your Honour, I am happy to continue, if it is convenient to your Honour.


HER HONOUR: Yes, certainly.


MR BASTEN: Might I deal with the adverse material point first. Perhaps I should go back a stage. Our ultimate position is that your Honour would not make factual findings about the material because ultimately - - -


HER HONOUR: I am not too sure that that is a factual finding.


MR BASTEN: Let me come straight to that. I was going to say that it is not going to assist in a more expeditious resolution of the case, even if there were a factual finding there. This exercise that we have put before your Honour was, I think, originally premised largely on the basis that there might be oral evidence which would need to be heard and resolved.


HER HONOUR: Yes.


MR BASTEN: The difficulty in relation to what my friend asks your Honour to do in relation to the adverse material may be illustrated perhaps by reference to the draft stated case.


HER HONOUR: Yes, in Herijanto?


MR BASTEN: Herijanto is a good example. In preparing the questions at paragraph 12 on page 3, we may not have done this completely accurately but what we sought to do was to identify how my friend put his case and, as I understand it, this point really depends upon a claim that the practice note constituted a representation to the plaintiff creating a legitimate expectation on his part that the Tribunal would do certain things and it is only when one comes to paragraph (b) at page 4 that we find the question as to whether:


any of the material identified by the Plaintiff in his statement of claim as “adverse material” constituted material to which the obligation of the First Defendant applied.


Ultimately, your Honour, until one identifies precisely what the legal obligation is which is said to arise from the practice direction, that question cannot be answered.


HER HONOUR: I know, but I am just looking at these questions and I do not think these are the questions that you referred - - -


MR BASTEN: My friend may have some different questions. We tried to do it against us, as it were. I may have done it inaccurately from - - -


HER HONOUR: Yes. Well, you may have done it in much too great detail.


MR BASTEN: That may be so too.


HER HONOUR: Yes.


MR BASTEN: There were two ways of doing it and, I am sorry, we do not have these in a better form and my friend has not had an opportunity to comment on them. He may do them better in the terms that your Honour is suggesting. But, ultimately, what he put to your Honour this morning was that he was not relying on a Kioa v West implication under the common law because he apprehended that would not go beyond material personal to the plaintiff. His concern is with country information. Therefore, he says, we have to find a legitimate explanation based either on this practice note or something - well, in relation to the Part B materials I think primarily on the practice note – and until one has identified that legitimate expectation, our submission is that we cannot test, as it were, against whatever that might be, whether the particular documents breach it and at the end of the day - - -


HER HONOUR: I do not quite follow what you are saying there. I mean, it is quite possible, if need be, is it not, to say that in each case the Tribunal had access to country information which suggested or which indicated – you might even find a stronger word – contrary to the applicant’s case that Indonesia was willing and able to provide protection. You could say that, could you not?


MR BASTEN: Yes.


HER HONOUR: Then you could ask whether having regard to the practice note that involved a denial of procedural fairness.


MR BASTEN: I think I am really putting to your Honour that those two questions are ultimately bound up with each other and that one is, in effect, making a hypothetical decision about that latter point before - - -


HER HONOUR: The facts I am suggesting should be in the agreed statement of facts are, one – this is on this adverse material point.


MR BASTEN: Yes.


HER HONOUR: That a practice note was issued; two, if the evidence supports it, that the practice note was drawn to the attention of the plaintiff or not.


MR BASTEN: I think not. I do not think – that is not supported on the material.


HER HONOUR: All right. Three, that the Tribunal had regard to country information material which was not provided to the applicant which, contrary to their claims, indicated that Indonesia was able and willing to protect the rights of ethnic Chinese.


MR BASTEN: That would encompass some documents, your Honour, yes.


HER HONOUR: Yes. For the purposes of this case, does it need to go further than that? Then the question which would be for the Full Court was whether, having regard to those facts, there was a denial of procedural fairness.


MR BASTEN: It might be possible to do it in that way, your Honour. I would then need to go back to the individual documents and see which fell into a particular category and which did not but, if the questions were formulated in that way, we might be able to revisit each document.


HER HONOUR: That is what I am thinking about these questions that you have asked. I mean, the questions for the Full Bench are ultimately, are they not, whether by reason of one of other matters there was a denial of procedural fairness; two, whether there was a breach of statutory obligation. Is there a third one? Probably not.


MR BASTEN: The consequences of those breaches, of course, but - - -


MR ROBINSON: Should the decision be vitiated?


HER HONOUR: Yes, well, if so, what relief should issue? I mean, if you like, if the answer to either of those questions is “Yes”, whether prohibition should issue. That is really all you want, is it not? They are the only questions you ultimately want to refer to the Full Court, I should have thought.


MR BASTEN: Yes.


HER HONOUR: And if you phrase some of these matters by reference to their content, then the Full Court itself - I am not saying that applies to the inferences but I think it applies to the Part B documents and what has been referred to as adverse material.


MR BASTEN: Yes. I am not sure whether I am taking your Honour further than I should. This morning your Honour was suggesting we might in that context, as it were, summarise what those particular Part B documents did and your Honour is giving a form of description, as it were, in the course of outlining the possible cause.


HER HONOUR: Yes.


MR BASTEN: We could probably do that. Would your Honour envisage that those documents would themselves nevertheless go before the Full Court, those which were said to contravene the obligation?


HER HONOUR: They could be annexed to the case stated or questions reserved. I mean, we have referred to it as case state stated or questions reserved.


MR BASTEN: Yes. I have, yes.


HER HONOUR: But, ultimately, I see no reason why the ultimate questions would not be whether having regard to such-and-such there was a breach of statutory duty or whether having regard to these other things there was a denial of procedural fairness and in that context describe what the material contains and annex it.


MR BASTEN: Yes.


HER HONOUR: Would that be almost sufficient for your purposes?


MR BASTEN: Yes, your Honour. That is probably an exercise we should try and follow through before telling your Honour that it will not work because obviously, if it does work, then it is the appropriate answer to the

problem. I am conscious of the timing of this. That might take us a little bit of time to do that exercise.


HER HONOUR: Would you like me to adjourn now while you think of - - -


MR BASTEN: Yes, unless your Honour wants to hear me on the inferences at some stage?


HER HONOUR: I will want to hear you at some stage on that, yes. If you like, I will simply adjourn until 10 o’clock and you may be able to make very considerable progress on that.


MR BASTEN: Yes. That would obviously assist, and I might refine my thoughts about the inferences in the same period. If your Honour pleases.


HER HONOUR: Very well. I will adjourn until 10 o’clock tomorrow.


AT 3.26 PM THE MATTER WAS ADJOURNED
UNTIL FRIDAY, 18 AUGUST 2000


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