S1338 of 2003 v Minister for Immigration - [2009] FMCA 422

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S1338 of 2003 v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 422

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal’s findings were supported by evidence – whether the Refugee Review Tribunal misconstrued the applicant’s claims.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 474; pt.8 div.2

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR
Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044
Muin v Refugee Review Tribunal (2002) 190 ALR 601
NAYQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402
NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10
Applicant NABD of 2002 v Minister for Immigration and Multicultural Affairs (2005) 216 ALR 1
NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Abebe v Commonwealth of Australia (1999) 162 ALR 1
Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1985) 162 CLR 24
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1

Applicant:

APPLICANT S1338 OF 2003

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 3377 of 2008

Judgment of:

Emmett FM

Hearing date:

5 May 2009

Date of last submission:

5 May 2009

Delivered at:

Sydney

Delivered on:

5 May 2009

REPRESENTATION

Solicitors for the Applicant:

Mr T. Silva, Silva Solicitors

Counsel for the Respondent:

Mr T. Reilly

Solicitors for the Respondent:

Ms Z. McDonald, DLA Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3377 of 2008

APPLICANT S1338 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 26 November 2008 and handed down on27 November 2008.
The applicant claims to be a citizen of Fiji and of Hindi faith and Indian ethnicity (“the Applicant”).
The Applicant arrived in Australia on 30 January 1990 having departed legally from Nadi on a passport issued in her own name and a visitor visa issued on 17 January 1990.
On 11 September 1990, the Applicant’s husband lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act. The Applicant was named as a dependent on this application.
On 5 January 1995, a delegate of the First Respondent refused the Applicant’s husband’s application for a protection visa.
On 16 October 1995, the Refugee Review Tribunal affirmed the decision of the delegate not to grant protection visas.
The Applicant’s husband, with the Applicant named as a dependent, sought judicial review of this decision. On 7 September 2006, the latest appeal in the High Court of Australia was resolved in favour of the First Respondent.
On 8 February 2007, the Applicant lodged an application for a protection visa with the Department. The Applicant’s husband was named as a dependent in this application.
On 26 February 2007, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for protection visas.
On 12 March 2007, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal. The Applicant’s husband was not included in the application for review.
On 2 May 2007, the Refugee Review Tribunal affirmed the decision of the Delegate not to grant protection visas.
The Applicant sought judicial review of the Delegate’s decision. On 17 October 2007, Federal Magistrate Cameron remitted the matter to the Refugee Review Tribunal for determination according to law.
On 10 December 2007, the Refugee Review Tribunal, differently constituted, affirmed the decision of the Delegate not to grant protection visas.
The Applicant also sought judicial review of this decision. On 25 July 2008, Federal Magistrate Raphael remitted the matter to the Refugee Review Tribunal for determination according to law.
On 26 November 2008, the Refugee Review Tribunal, again differently constituted, (“the Tribunal”) affirmed the decision of the Delegate not to grant protection visas. This is the decision currently under review.
On 22 December 2008, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Applicant’s application for a protection visa

The Applicant provided a statutory declaration in support of her protection visa application in which she stated that she feared persecution by native Fijians by reason of her race and religion. The Applicant claimed she and her husband were subjected to racial hatred and threats. The Applicant claimed native Fijians robbed their house on three occasions, taunted her and her husband, threw rocks at their temple, stole her husband’s lunch and taunted and slapped him. The Applicant claimed that when they sought assistance from police they were laughed at.

The Delegate’s decision

On 26 February 2007, the Delegate refused the Applicant’s application for protection visas on the basis that the Applicant was not a person to whom Australia has protection obligations under the Convention.

The Tribunal’s review and decision

On 12 March 2007, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
The Applicant attended hearings before the two previous Refugee Review Tribunals on 2 May 2007 and 5 December 2007. The Applicant’s husband attended both these hearings and gave evidence as a witness.
On 16 September 2008, the Tribunal wrote to the Applicant informing her that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 17 October 2008 to give oral evidence and present arguments.
On 17 October 2008, the Applicant gave evidence at the hearing before the Tribunal. The Applicant’s husband also attended the hearing and gave evidence as a witness. The Applicant’s advisor Mr Silva also made submissions to the Tribunal on the Applicant’s behalf.
On 4 November 2008, the Tribunal wrote to the Applicant’s advisor identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the Applicant to comment upon it (“the s.424A Letter”).
On 13 November 2008 the Applicant’s advisor responded to the s.424A Letter.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The Tribunal found the Applicant was not a witness of truth.
The decision of the Tribunal is accurately summarised by counsel for the First Respondent in his written submissions as follows:
“4. The Tribunal found the Applicant was not credible, noting she had made inconsistent claims over time concerning her involvement with the Fiji Labour Party and her inability to attend her temple, and was not satisfied that a nearby temple was burnt down as she claimed: CB 256 [88]. The Tribunal was also not satisfied that a neighbour had been raped, noting again the inconsistencies in this claim over time: CB 256-257 [89-92]. Nor was the Tribunal satisfied that the Applicant had been robbed or her husband assaulted as she claimed: CB 257 [93-94]. Overall the Tribunal was not satisfied that the Applicant had experienced serious harm in Fiji in the past: CB 258 [98]. Nor was the Tribunal satisfied that the Applicant had a well founded fear of such harm in future, noting country information concerning the current situation in Fiji and finding that it did not give any basis for the Applicant’s claimed fears either at the time of the Tribunal’s decision or in the reasonably foreseeable future. See generally CB 253-260.”

The proceeding before this Court

The Applicant was represented before this Court by Mr Silva, solicitor.
On 30 March 2009, the Applicant filed an amended application. At the commencement of the hearing before this Court, Mr Silva confirmed that the Applicant relied on the grounds of the amended application.
The grounds of the amended application are expressed as follows:
“Ground 1
The Tribunal made jurisdictional error in (a) making a finding critical to the ultimate finding without (and contrary to) evidence and/or (b) by drawing inferences not available
Particulars
In paragraph 105 at page 34.8 of its decision, under Findings and Reasons the Tribunal held that:
However, apart from brief and localized instances of public disorder in 1987 and 2000, coups and other changes of government in Fiji have not been attended by violence, loss of life or wide scale destruction of property.
This is firstly a gross distortion of history. It is well known throughout the world that violence, loss of life or wide scale destruction of property took place in Fiji. Further there is no evidence for the Tribunal finding. The country information quoted by the Tribunal itself contradicts that.
At page 19.9 the Tribunal states that:
Independent country information
1987 coup
60. In 1987 Fiji’s first Indo-Fijian dominated coalition government was elected into power. Indigenous nationalists known as the ‘Taukei’ spread fears within the indigenous Fijian community of Indian domination. After one month of violent protests a bloodless coup was undertaken on 11 May 1987 led by Lieutenant Colonel Sitiveni Rabuka. After a period of deadlocked negotiations Rabuka staged a second coup on 25 September 1987 in which the Constitution was revoked and Fiji was declared a replublic (…).
61. The New Internationalist reported that Indian shops and house were attacked in a wave of racist violence following the coup. Indo-Fijians were also reportedly constitutionally banned from forming a parliamentary majority (…).”
The above finding (in para. 105 at page 34.8) was the basis for its further finding in para. 105, at page 34.9 that:
As noted, I do not accept that the events of 1987 caused the Applicant or her husband to suffer serious harm for a Convention reason. I am not satisfied that the departure of the Bainimarama government would result in a generalized backlash against the Fiji Indian community by ethnic Fijians as the Applicant claims, widespread breakdown of law and order of the introduction of discriminatory policies aimed at the Fijian Indian community. I am not satisfied that, in the reasonably foreseeable future, the Applicant or her husband would be at increased risk of harm as a result of the departure from office of Commodore Bainimarama, with or without his government.
Ground 2
The Tribunal made jurisdictional error in that it misconstrued the Convention bases of the Applicant’s claims
Particulars
The Applicant claimed persecution based on:
(i) being an Indian;
(ii) being an Indian and a support of FLP; and
(iii) being a Hindu.
However the Tribunal held at page 32.4 (CB 257.4) that:
94. Finally, as put to the Applicant at the hearing and in writing, the only reason advanced in the 1990 protection visa application for her husband’s fear of harm was that he and the applicant were members of the Fiji Labour Party. He did not claim to fear harm because of his Indian ethnicity and the Applicant herself did not advance her own claim to fear harm for such a reason. It is would be reasonable to assume that if the Applicant or her husband had suffered harm in Fiji based on their ethnicity this would have been an important element of their protection visa application. I note the advisor’s submission that Fiji Indians have a multi-faceted nature in the eyes of ethnic Fijians, being seen as ethnically Indian, Hindu by religion and supporters of the Fiji Labour Party but I am not satisfied that they themselves would have failed to appreciate the clear differences between these concepts. Nor am I satisfied that it explains why, if they had genuinely suffered harm because of their Indian ethnicity, this would not have been reflected in some way in the 1990 protection visa application. On the information before the Tribunal I am not satisfied that the Applicant’s husband was harmed because of his Indian ethnicity, as the Applicant claims was the case. (bold added)”

Ground 1

At the heart of Mr Silva’s submissions in support of Ground 1 was a submission that there was no evidence to support the following finding made by the Tribunal:
“However, apart from brief and localised instances of public disorder in 1987 and 2000, coups and other changes of government in Fiji have not been attended by violence, loss of life or wide scale destruction of property.”
Mr Silva submitted that the country information about the coups in 1987 and 2000 could in no way be described as “brief and localised instances” and not attended by violence, loss of life or wide scale destruction of property. In support of that submission Mr Silva referred to various extracts of country information before the Tribunal that referred to the violence involved in those coups.
However, I accept the submission of counsel for the First Respondent, Mr Reilly, that a fair reading of the Tribunal’s words does not lend itself to the interpretation contended for by Mr Silva. A fair reading of the Tribunal’s words does not suggest that the “brief and localised instances of public disorder in 1987 and 2000” were not attended by violence, loss of life or wide scale destruction of property. A fair reading of the Tribunal’s decision record makes clear that the Tribunal was intending to acknowledge the violence that had occurred, however found that it had been “brief and localised”. It is well established that in reviewing an administrative decision the Court should not approach that task with an eye keenly attuned to error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272; Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [14]).
The Tribunal identified in some detail specific country information to which it had regard. There was country information before the Tribunal that referred to a month of violent protests followed by a bloodless coup in 1987. Certainly, there was other country information before the Tribunal that referred to Indian shops and houses being attacked in a wave of racist violence following the coup.
However, the Tribunal was also entitled to have regard to knowledge accumulated by it by reason of the experience of the Tribunal member in undertaking the Tribunal member’s administrative role. Mr Silva submitted that, if a tribunal member was having regard to knowledge accumulated by him in the course of performing his duties, he was obliged to identify the source of that knowledge. However, the principles were made clear by Hayne J in Muin v Refugee Review Tribunal (2002) 190 ALR 601 at [263] and [264] as follows:
“Unlike a court, the tribunal was not restricted to acting only on material that was expressly referred to in the course of a particular review. It was not bound by rules of evidence and its members were obviously expected to develop and rely on knowledge of affairs in the countries from which claimants come. It may very well be, therefore, that, as individual tribunal members heard accounts given to them by a series of applicants for protection visas who came from a country concerned, they developed a body of knowledge upon which their views about the country were formed,. And as they become more knowledgeable their capacity comprehensively to identify the particular sources of their knowledge would ordinarily diminish.
… a very practical reason to doubt that procedural fairness required the tribunal to identify the source, and the general nature, or every piece of material that led the member to form a view that a particular country was willing and able to protect its citizens. So to hold would impose an obligation that could not readily be performed and in some cases would be impossible.”
In the circumstances, I reject Mr Silva’s submission that, if a tribunal member was having regard to knowledge accumulated by him in the course of performing his duties, he was obliged to identify the source of that knowledge.
Mr Silva also referred to NAYQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 (“NAYQ”) at [40], [44], [47] and [48] in support of his submission. However, Mr Silva’s submissions ignored the ratio for the Court’s decision in NAYQ in that the tribunal in NAYQ had referred to “aforementioned information” that did not support the tribunal’s finding of “increasing political liberalisation”. That is not the position in the case before this Court.
A fair reading of the Tribunal’s decision record makes clear that it had regard to a significant body of country information to which it was entitled to attribute such weight as it saw fit NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [11] and [13]; Applicant NABD of 2002 v Minister for Immigration and Multicultural Affairs (2005) 216 ALR 1 at [8] per Gleeson CJ; NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 at [81] and [84]).
A fair reading of the Tribunal’s decision record makes clear that, in the passage referred to in support of Ground 1, the Tribunal was engaging in the task of evaluating all the country information before it. There is no reason why such country information should exclude the Tribunal’s own accumulated knowledge to which it was entitled to give what weight it saw fit.
In the circumstances, I reject the Applicant’s submission that there was no evidence to allow the Tribunal’s conclusion referred to in Ground 1 above.
Ultimately, the Tribunal did not find the Applicant to be a witness of truth and rejected her claims of past harm. The Tribunal did accept that the Applicant may have been apprehensive at the time of the two coups in 1987 when the Tribunal found there was a breakdown in law and order “for a limited time” in some areas of Fiji, however was not satisfied that the Applicant suffered serious harm amounting to persecution for a Convention reason. Neither was the Tribunal satisfied that the Applicant or her husband were denied protection in Fiji in a discriminatory way for a Convention reason. The Tribunal concluded that because it was not satisfied that the Applicant or her husband suffered serious harm amounting to persecution for a Convention reason when they lived in Fiji, the Tribunal was not satisfied that anything had changed since they left Fiji such that they would now be at an increased risk of harm if they were to return to their home village in Fiji, whether or not the Bainimarama government remained in office. Those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave.

In light of the Court’s findings in respect of Ground 1(a), it follows that the Court is not persuaded that there was no evidence from which the Tribunal could draw the inference made by it referred to in Ground 1(b).
Otherwise, Ground 1 is no more than a complaint about the Tribunal’s findings in relation to country information. Such complaints invite merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia (1999) 162 ALR 1 (“Abebe”); Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1985) 162 CLR 24 at 41 per Mason J).
Accordingly, Ground 1 is rejected.

Ground 2

The Applicant’s complaint in Ground 2 alleges that the Tribunal “misconstrued the Convention bases of the Applicant’s claims” arising out of the Tribunal’s findings made as follows:
“94. Finally, as put to the Applicant at the hearing and in writing, the only reason advanced in the 1990 protection visa application for her husband’s fear of harm was that he and the applicant were members of the Fiji Labour Party. He did not claim to fear harm because of his Indian ethnicity and the Applicant herself did not advance her own claim to fear harm for such a reason. It is would be reasonable to assume that if the Applicant or her husband had suffered harm in Fiji based on their ethnicity this would have been an important element of their protection visa application. I note the advisor’s submission that Fiji Indians have a multi-faceted nature in the eyes of ethnic Fijians, being seen as ethnically Indian, Hindu by religion and supporters of the Fiji Labour Party but I am not satisfied that they themselves would have failed to appreciate the clear differences between these concepts. Nor am I satisfied that it explains why, if they had genuinely suffered harm because of their Indian ethnicity, this would not have been reflected in some way in the 1990 protection visa application. On the information before the Tribunal I am not satisfied that the Applicant’s husband was harmed because of his Indian ethnicity, as the Applicant claims was the case.”
In support of Ground 2, Mr Silva referred the Court to the Applicant’s husband’s protection visa application where the Applicant answered “yes” to the question of whether he had ever suffered as a result of his race or ethnicity; and where the Applicant’s husband stated that he was mistreated because he was “an Indian working with Fijians”.
Mr Silva submitted that the Tribunal’s statement that the Applicant did not claim to fear harm because of his Indian ethnicity was plainly incorrect.
However, the Tribunal’s findings and reasons in the paragraph referred to above need to be seen in the context of the evidence given by the Applicant to the Tribunal and the oral and written submissions made by her advisor, Mr Silva, to the Tribunal. The relevant exchanges between the Tribunal and the Applicant on this issue are as follows:
“T: … when your husband and you first applied for protection in Australia – that’s 18 years ago now, back in 1990 – you and he said that the harm that he had suffered was because he was a member of EFLP
A: Yes, National Federation Party.
T: Well, Fiji Labour Party.
…
A: We were not members of the party, but we were helping them out.
T: As I say, in that first application – we’re talking about 18 years ago – your husband said that the whole reason he was harmed, and that he feared he would be harmed in Fiji, was because of his membership of the party.
A: Yeah, actually he was not a member of the party, but due to the lack of English language, he is not a – he is not a – we don’t say English very much, so misunderstood. So that’s why.
T: Well, are you saying that it was because of language problems there was a misunderstanding over whether he was a member of the party or was helping the party?
A: Yes.
T: Right. OK. But there’s another question here, and that is he was saying that it was because of the party; whether he was a member or whether he was just supporting it, it was because of that that he was persecuted.
A: Yeah, at the election time my husband – my husband, he was using his own transport, his own way, taking people for voting, for casting, so at that time he was bashed up, he had been beaten up.
T: Alright. Well, I mean, he wasn’t saying that this happened to him because he was Hindu or because he was Fiji Indian. He was saying it was all because he was a member of the party or he was supporting the party. Why I am asking you this is because earlier today, when I asked you why these things had happened to you in Fiji, you said it was because you were a Fiji Indian and a Hindu. You didn’t mention anything about being either a member of the Fiji Labour Party or supporting the Fiji Labour Party.
A: Yeah, actually this is a long time ago these things happened, because I could not – I mean, I forgot and I could not – I cannot recall exactly what happened.”
At the end of the Tribunal hearing, the Tribunal informed the Applicant and her advisor, Mr Silva, that it would write setting out its concerns and that any response would be considered “very carefully, together with all the other information that had been provided”.
At no time during the Tribunal hearing did Mr Silva suggest to the Tribunal on behalf of the Applicant that the Tribunal’s understanding of the Applicant or her husband’s claims were misconceived. The Tribunal was at pains to confirm with the Applicant her understanding that her husband’s claims were confined to his membership of the party and that he was not asserting mistreatment because he was Hindu or because he was Fiji Indian.
Further, in the Applicant’s husband’s covering letter by his migration agent to the Department, his then migration agent stated that the Applicant and her husband had joined the Fiji Labour Party in 1987 and were openly involved in campaigning for the party in their home district. That letter makes no mention of any other reason for the Applicant and her husband’s fear of harm in Fiji.
On 4 November 2008, the Tribunal wrote to Mr Silva, the Applicant’s advisor, pursuant to s.424A of the Act in which the Tribunal, inter alia, said as follows:
“In the protection visa application lodged by your husband and you in September 1990 the reason which is put forward for his claimed fear of harm in Fiji is that all his family were members of the Fiji Labour Party. He did not claim to fear harm because of his Indian ethnicity. You made no separate claims in this application and did not advance any claims of your own to fear harm on this ground. However, in your own protection visa application lodged in February 2007 you claim to fear harm on the grounds of your Indian ethnicity. This information is important for the review of your case because the absence of earlier claims to fear harm on the grounds of Indian ethnicity, either by your husband or yourself, may raise doubts about the credibility of your later claims to fear harm for this reason.”
On 13 November 2008, Mr Silva responded to the Tribunal’s letter prefacing its comments that some inadequacies in the initial protection visa application should not be a critical factor in the final determination. The letter went on to respond to the issue referred to above as follows:
“It is important to understand the multi-faceted nature of the Indian ethnicity. Indians were also predominantly Hindus (originally 100% Hindus) and they were overwhelmingly if not 100% supporters of the Labour party or Federation party. To say someone is an Indian is in truth saying that he is of Indian heritage, a Hindu by religion and a Labour party supporter. The legal concept of ethnicity, religion and political opinion is for lawyers and administrators to understand and is not for simple blokes for whom they are different features of the same thing. Indians were identified as Indians, Hindustani or Kaindia. They were identified as Hindus in the sense of religion. They were also identified as Labour party supporters because the party was identified as an Indian party though there were indigenous Fijians in it. Speight staged a coup on this basis.”
There was no mention in Mr Silva’s letter that the Tribunal had misunderstood the Applicant’s husband’s claims as not being confined to a claim of fear of harm because of his membership of the Fiji Labour Party. The Tribunal specifically referred to Mr Silva’s submission, cited above, that Fiji Indians have a multi-faceted nature in the eyes of ethnic Fijians, being seen as ethnically Indian, Hindu by religion and supporters of the Fiji Labour Party. The Tribunal was not obliged to accept that submission.
The Tribunal was not satisfied that the Applicant and the Applicant’s husband would have failed to appreciate the clear differences between these concepts. The Tribunal found that, if the Applicant or her husband had suffered harm in Fiji based on their ethnicity, “this would have been an important element in their protection visa application.” The Tribunal was not satisfied about the Applicant’s claim that her husband was harmed because of his ethnicity. Those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave.
Mr Silva sought to rely on NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1 at [63] in support of his submission that the Tribunal had misconstrued the Applicant’s husband’s claims and therefore could not have dealt properly with the claims of the Applicant. However, as stated above, Mr Silva was the Applicant’s advisor before the Tribunal and the author of correspondence with the Tribunal on behalf of the Applicant. Mr Silva made oral submissions at the Tribunal hearing. Neither in his evidence to the Tribunal nor his correspondence with the Tribunal did Mr Silva challenge the matters clearly raised by the Tribunal about its understanding of the Applicant’s husband’s claims.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal addressed the Applicant’s claims of a fear of persecution in Fiji because of her ethnicity and rejected that claim. As referred to above, those findings were open to the Tribunal of the evidence and material before it and for the reasons it gave.
In any event, a fair reading of the Tribunal’s decision record makes clear that the Tribunal rejected the Applicant’s claims of any past persecution of her husband by reason of his Indian ethnicity.
Even if the Tribunal had misunderstood the claims made by the Applicant’s husband, there is no error of law in making a wrong finding of fact (Abebe at [137]). Certainly, any claim made by the Applicant based on her husband’s claim of a fear of persecution by reason of his ethnicity does not emerge clearly from the materials before the Tribunal (NABE at [68]).
In the circumstances, I do not accept that the Tribunal misconstrued the Applicant’s claims and based its conclusion in whole or in part upon the claim so misunderstood or misconstrued.
Accordingly, Ground 2 is not made out.

Conclusion

A fair reading of the Tribunal’s decision makes it clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; heard evidence from the Applicant’s husband; heard submissions from the Applicant’s advisor, Mr Silva; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about her evidence and noted the Applicant’s responses. The Tribunal also identified independent country information to which it had regard. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for which it provided reasons. A fair reading of the Tribunal’s decision makes clear that the Tribunal reached conclusions based on the findings made by it and applied the correct law to its findings in reaching those conclusions.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: E. Maconachie

Date: 5 May 2009