SZDAD v Minister for Immigration

[2006] FMCA 1091

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDAD v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1091

MIGRATION – Refugee – Tribunal did not properly assess the applicant’s claims based on her membership of social group – “Indian woman” – Tribunal failed to deal with an aspect of the applicant’s claim – jurisdictional error – application remitted for reconsideration.

Migration Act 1958, ss.91R(1)(a), 422B, 424A, 424A(1), 424A(3)(a)

Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
SZDWR v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 36 at
Minister for Immigration & Multicultural & Indigenous Affairs v Respondents S152/2003 (2004) 205 ALR 487
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
Lay Lat v Minister for Immigration and Multicultural Affairs [2006] FCAFC 61
Minister for Immigration and Multicultural Affairs v Rajalingham (1999) 93 FCR 220
Abebe v The Commonwealth of Australia [1999] HCA 4
Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28
Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142

Applicant: SZDAD

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 692 of 2004

Judgment of: Nicholls FM

Hearing date: 31 May 2006

Date of Last Submission: 25 May 2006

Delivered at: Sydney

Delivered on: 09 August 2006

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr. G. Johnson

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The name of the first respondent be amended to read “Minister for Immigration & Multicultural Affairs”.

2. A writ of certiorari issue, quashing the decision of the second respondent.

3. A writ of mandamus issue, requiring the second respondent to redetermine the matter according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 692 of 2004

SZDAD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed in this Court on 12 March 2004 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 27 January 2004 and handed down on 18 February 2004 to affirm the decision of a delegate of the respondent Minister made on

   
   

   30 June 2003 to refuse a protection visa to the applicant. The Tribunal is joined as the second respondent in these proceedings.

2. The applicant is a national of Fiji who arrived in Australia on

   
   

   22 September 1999, departed on 9 December 1999, and returned on

   
   

   21 February 2000. She lodged an application for a protection visa with the first respondent’s Department on 19 June 2003. The applicant’s claims are reproduced in her application for a protection visa at Court Book (“CB”) 1 to CB 24, and particularly in a letter, dated 18 June 2003, to the Minister’s Department. This letter was written by the applicant’s husband on behalf of the applicant, and is reproduced at CB 25 to CB 26. The applicant’s claims can also be found in the application for review to the Tribunal (reproduced at CB 58 to CB 61) supported by further material provided by the applicant to the Tribunal (reproduced at CB 67 to CB 81).

3. The applicant claimed that when a second coup against the then government took place in Fiji in May 2000, both her family and her husband’s family were “brutally tortured”. She claimed that her husband’s house, land and other possessions had been all taken away “by the Fijians”. The applicant claimed that she feared that she would be mistreated by native Fijians if she returns because she is “an Indian woman”. She claimed that she feared she would be tortured, raped or even killed by “the Fijians” as has happened with “other Indian women”.

4. The Tribunal’s “Findings and Reasons” are set out in its decision record at CB 93.8 to CB 95.6. The Tribunal found:

   1)There was nothing before the Tribunal to “support a suggestion” that Indo-Fijians or Indo-Fijian women were committing suicide because of a fear of rape or crime or persecution (CB 94.2).

   2)There was no claim that the applicant herself (or her husband), had ever experienced significant discrimination or personal harm amounting to persecution (CB 94.3).

   3)With reliance on independent sources (it gave “weight to consistent reports”), that “the situation” in Fiji had improved significantly since the May 2000 coup (CB 94.4).

   4)With regard to independent country information, and the applicant’s “own particular circumstances”, that it needed to consider whether the applicant would face a real chance of persecution for a Convention reason should she return to Fiji (CB 94.5).

   5)Further to the improvement in the situation after the coup (in May 2000), that the harassment of Indo-Fijians, and destruction of their property, did not continue during 2001 (CB 94.7).

   6)That independent country information indicated that the “present government” is fully committed to protecting all citizens regardless of ethnicity, and that the security forces have “warned against violence” and are in control of the country, and are committed to protecting the population (CB 94.8).

   7)It was not satisfied that Indo-Fijians were denied their basic rights and that persecution or mistreatment of them is permitted or condoned by the security authorities, or the government, and that therefore Indo-Fijians did not face a real chance of persecution by the government or other authorities (CB 94.9).

   8)It was not satisfied that the authorities provided ineffective protection to “Indo-Fijians for a Convention reason”, nor was it satisfied that the applicant had been, or would be, denied protection for a Convention reason (CB 95.3).

   In essence the Tribunal’s decision turned on its findings that the applicant had made no claims that she personally had experienced significant discrimination or personal harm amounting to persecution, but in any event Indo-Fijians did not face a real chance of persecution by the government, or other authorities, and further that the authorities provided effective protection to Indo-Fijians.

5. The applicant’s originating application filed on 12 March 2004 raises the following ground of review:

   “The Tribunal did not clearly make a finding on what could happen to the applicant if she returns because she is an Indo-Fijian woman.”

6. I also have before me the following documents:

   (1)The applicant’s amended application filed on 27 October 2004.

   (2)An affidavit sworn by the applicant on 24 May 2006 annexing a copy of the Transcript (“T”) of the hearing before the Tribunal.

   (3)The Court Book filed on 15 July 2004.

   (4)The respondent’s written submissions filed on 25 May 2006.

   (5)The applicant’s written submissions filed on 24 May 2006.

7. At the hearing before me the applicant was unrepresented. Mr. Johnson appeared for the respondents. The applicant did not require an interpreter. The applicant was assisted by her husband. The hearing proceeded with leave for the applicant’s husband to make submissions on his wife’s behalf. Mr. Johnson took no objection.

8. At the commencement of the hearing the applicant (through her husband) sought leave to file a further amended application. The Court pointed out to the applicant that there appeared to be discrepancies between the stated grounds in the proposed amended application, and the grounds referred to in the recently filed written submissions, and sought clarification of the grounds the applicant sought to rely on. A short adjournment was granted to enable the applicant’s husband to seek advice (from his originally described “legal adviser”, but on clarification, the “migration agent” “who helped us prepare the documents”).

9. On resumption the applicant’s husband submitted that the applicant did not wish to press the proposed further amended application, but sought to press all the grounds as set out in the written submissions. I granted leave for the applicant to file her further amended application in terms of the grounds set out in the written submissions.

10. I admitted into evidence paragraphs 1 and 7 of the applicant’s affidavit made on 24 May 2006, and the annexed transcript of the hearing conducted by the Tribunal on 8 December 2003. I upheld Mr. Johnson’s objections to paragraphs 2 to 6 being admitted as evidence, but took the matters asserted into account in the nature of submissions.

11. In this matter I find that the applicant’s fourth ground of complaint is made out and that jurisdictional error is revealed in the Tribunal’s decision.

12. The applicant’s fourth ground of complaint is:

    “The Tribunal failed to recognise that the applicant belonged to a particular social class.”

    At the hearing neither the applicant, nor her husband on her behalf, were able to add anything further to what is set out at paragraphs 33 to 37 of the applicant’s written submissions. In essence, the applicant's complaint is that she claimed to be a member of a distinct social group, namely “Indian women”, and as such, was a member of a group of women who are most vulnerable to attacks and persecution in Fiji by indigenous Fijians. The applicant’s submission was that such a social group was a recognisable social group for the purposes of the Refugees Convention and that the Tribunal did not properly assess her claims based on her belonging to such a social group.

13. The applicant's submissions make reference to the Tribunal's decision record and in particular its “Findings and Reasons” at CB 93.9:

    “The Applicant's expressed concerns relate generally to perceived insecurity in Fiji, especially the perceived vulnerability of Indo-Fijian women to crime by indigenous Fijians. Both the Applicant and her husband appeared to suggest that in this situation Indo-Fijians or Indo-Fijian women are being driven to suicide; however, the material submitted relating to reported suicides by Indo-Fijian women (some 30 during the unspecified period in question) specifically stated that the suspicion was that these women had been victims of “bride-burning” by their own families or community. There was nothing in the material before the Tribunal to support a suggestion that Indo-Fijians or Indo-Fijians women are committing suicide because of fear of rape or crime or persecution.”

    In all therefore, the applicant's complaint appears to be that the Tribunal failed to properly identify this social group, that it misunderstood the information presented to it, and “ignored the vulnerability of Indo-Fijian women” who constitute this group. Further that the applicant was part of this group and that the Tribunal proceeded to make a general “assessment against general [the] population of people in Fiji”, rather than this particular social group.

14. Mr. Johnson's submission was that the Tribunal did look at the applicant's position not just as an ethnic Indian in Fiji, but also as a woman. He pointed to the very same extract of the Tribunal's decision record as relied on by the applicant in her submissions. He proposed that the Tribunal clearly understood the applicant's claims as being expressed as especially relating to the perceived vulnerability of Indo-Fijian women to crime by indigenous Fijians. I accept Mr. Johnson's submission to the extent that it asserts that the Tribunal properly perceived the applicant's claims to encompass concerns as to the vulnerability of Indo-Fijian women to crime by indigenous Fijians. It is clear that the reference in the extract quoted above does encompass, and is consistent with, the applicant’s claim, as for example set out in her protection visa application (reproduced at CB 18) that Indian women “are always been regarded as an easy weapon in regards to racial conflict”, and that her fear was that she would be “tortured”, “raped” or “killed” by Fijians in the context of being an Indian woman. The Tribunal’s reference in the extract, to crime by indigenous Fijians, as it related to Indo-Fijian women, certainly encompasses what the applicant herself put in her application.

15. The Tribunal can be seen to have initially properly understood the applicant's claim as articulated in its decision record, under the hearing of “Claims and Evidence” (CB 89.3: “because I am an Indian female”) and even at the beginning of its “Findings and Reasons” (as set out in the first part of the extract above CB 93.8): “vulnerability of Indo-Fijian women to crime by indigenous Fijians”. The issue remains however whether the Tribunal then went on to properly address that claim in an appropriate context, and as it arose from the circumstances put forward by the applicant.

16. In this regard I note that in her application for review to the Tribunal (CB 58 to CB 61) the applicant made no further claims other than a reference to providing further evidence to the Tribunal at some future time (at CB 60). The respondent's position was that the Tribunal plainly considered the applicant's claims, as well as the country information relating to Indo-Fijian women, which was submitted by the applicant, and that this claim now before the Court therefore must fail.

17. Specifically, Mr. Johnson referred to that part of the Tribunal’s “Findings and Reasons” set out at CB 93.9 where the Tribunal identified the relevant claim as:

    “The applicant's expressed concerns relate generally to perceived insecurity in Fiji especially the perceived vulnerability of Indo-Fijian women to crime by indigenous Fijians.”

    His submission was that while the Tribunal recognised the applicant's claim as the vulnerability of Indo-Fijian women, it then looked to see how the applicant said that this harm was manifested against Indo-Fijian women. In this regard, the Tribunal therefore goes on to say that (CB 93.9):

    “Both the Applicant and her husband appeared to suggest that in this situation Indo-Fijians or Indo-Fijian women are being driven to suicide; however, the material submitted relating to reported suicides by Indo-Fijian women (some 30 during the unspecified period in question) specifically stated that the suspicion was that these women had been victims of “bride-burning” by their own families or community. There was nothing in the material before the Tribunal to support a suggestion that Indo-Fijians or Indo-Fijians women are committing suicide because of fear of rape or crime or persecution.”

18. The thrust of Mr. Johnson's submission therefore was that while the applicant raised the issue of the perceived vulnerability of Indo-Fijian women, the Tribunal sought to obtain details from the applicant and her husband at the hearing that it conducted with them, as to any specific instances of harm that may have occurred to the applicant in the past. His argument was that it was as a result of how the applicant and her husband said that this harm was manifested, that the Tribunal considered this claim. In short, the Tribunal considered that the applicant herself had not suffered any harm in the past, and the manifestation of the harm in the past that was alleged by the applicant to have been suffered by Indo-Fijian women, was that they had been driven to suicide. The Tribunal found on the evidence before it that the reported suicides did not occur as a result of any fear of harm by indigenous Fijians.

19. Further, he submitted that this is supported by the transcript of the hearing submitted by the applicant in support of her claim. With particular reference to the transcript of the hearing:

    1)At T5.3: (Q18) the Tribunal sought from the applicant “in your own words” the reasons that she was seeking protection as a refugee. It is clear that the applicant's response focused on her as “an Indian lady”, and she stated that the “Fijian natives become so harsh and it's very hard for a woman to stay there alone by herself”.

    2)At T6.1: (Q22) the Tribunal pressed the applicant to provide her “own particular situation” following a presentation of the general situation in Fiji. Ultimately, the applicant's response (at T6) was that there “can be a great danger because I cab be raped…”.

    3)The applicant herself (at T6.9) provided the “papers taken out from the Internet”. These are the documents reproduced at CB 67 to CB 81 which in part deal with the issue of Indo-Fijian women and suicide, which the Tribunal dealt with.

    4)At T7.9: The Tribunal confirmed with the applicant that her concern was the “question of crime and lack of security”.

    5)When the applicant’s husband gave evidence, he referred (at T15.4) to the material that the applicant had submitted to the Tribunal. He stressed (at T16.6) that if his wife as an Indian woman were to return to Fiji she would be “bound to face a situation where she can be harassed, she can be raped…”.

    6)At T16.7 the applicant husband stated “Indian women are basically being a victim of these kind of rapes and tormentation, torturing whereby finally they end up committing suicides and all these kind of things.”

20. On the material before the Court now, it is clear that the applicant and her husband (who appeared as a witness on her behalf) presented the claim of fear of what would happen to the applicant if she were to return to Fiji as an “Indian woman”. The claim was that she would be subjected to harassment and rape, in a context of crime perpetrated by indigenous Fijians, and the lack of security for Indo-Fijian women. The material put before the Tribunal (by way of the documents) and on what the applicant’s husband, in particular, put to the Tribunal at the hearing (that Indian women were subject to being raped by Fijians and that they ended up “committing suicide”) certainly entitled the Tribunal to see one aspect of this claim as being that the threat of the rapes led to the suicides. This is what the Tribunal clearly dealt with, and rejected, on the basis that information before it indicated that such suicides were the result of bride-burning by the individual’s own families. The Tribunal's finding therefore, that there was nothing in the material before it to support a suggestion that Indo-Fijian women were committing suicide because of the fear of rape, or crime, or persecution was open to it on the material that had been put before it.

21. However, what the Tribunal did not do was to deal with the other aspect of the applicant’s claim, namely that she would be harassed and raped by indigenous Fijians merely for being an Indo-Fijian woman. Irrespective of whether Indo-Fijian women had been led to suicide, the claim still remained that they were being harassed and raped by indigenous Fijians. The Tribunal's rejection of the applicant’s claim that women had not been led to suicide is one aspect of rape and harassment by indigenous Fijians merely because they were Indo-Fijian women. This still remained for consideration. The Tribunal clearly dealt with and rejected one aspect of the applicant’s claim, but it did not deal what it itself saw as the “perceived vulnerability of Indo-Fijian women to crime by indigenous Fijians”. While the Tribunal dealt with the “suicide” aspect, any plain reading of the material before the Tribunal shows that this was not the entirety of the applicant’s claim. Even the Tribunal itself, at first, only seemed to put the “suicide” aspect of the claim no higher than “appeared to suggest” (CB 93.9). The applicant never resiled from her claim that as an Indo-Fijian woman she feared harassment and rape on return. In all the circumstances it was in my view not open to the Tribunal to seek to characterise the fear of harassment and rape as only being seen in the context of leading to “suicide”.

1. Further, the Tribunal itself seemed to recognise that the claim was based on more than just the fear of the resultant “suicide” notionally in its decision record, but at the hearing where (at T7.9) it said to the applicant:

   “I guess the issue that, from what you've said, appears to be of more concern, direct concern to you is the question of crime and lack of security.”

2. Further, while the Tribunal clearly went on to deal with the issue of “crime and lack of security” in the context of the applicant being an Indo-Fijian, it did not adequately deal with that aspect of crime and security as it impacted on that separate group of Indo-Fijian women, and that is, rape and harassment by indigenous Fijians. The Tribunal understood the applicant’s claim, but dealt with only one aspect of it. Nor can it be said that the Tribunal’s finding that Indo-Fijians have protection from the authorities subsumes the claim that derives from the applicant’s fear of what would happen to her as a woman of Indo-Fijian ethnicity. The Tribunal inadequately dealt with the claim to fear harassment and rape as an Indo-Fijian woman. Having narrowed the applicant’s claim to one aspect (as explained above), the Tribunal’s findings on the adequacy of state protection was clearly made with a focus on the applicant as an Indo-Fijian and not an Indo-Fijian woman.

3. While I accept the respondent’s submission that the Tribunal dealt with that aspect of the claim dealing with “suicide”, I do not accept that the Tribunal dealt with the claim relating to the rape and harassment of Indo-Fijian women. A failure to deal with such an aspect of the applicant’s claim is a jurisdictional error on the part of the Tribunal and is the basis for making the orders sought by the applicant. I will make the appropriate orders and send the matter back to the Tribunal for reconsideration.

4. Having found jurisdictional error in the Tribunal’s decision it is not strictly necessary to consider the applicant’s other grounds. However, for the applicant’s benefit, (possibly of benefit to whoever drafted the applicant’s submissions and put forward her grounds of complaint) and possibly of assistance to the Tribunal in completing the review of the application, I should note that I could not see any error arising from any of the applicant’s other grounds. 

5. The applicant’s first ground of complaint is:

   “The Tribunal’s failure to correctly apply the law in relation to the meaning of the word ‘persecution’ for the purposes of the Convention.”

6. It is well established that an applicant who is seeking a determination that she (as in this case) is a refugee pursuant to Article 1A(2) of the Convention must establish a fear of persecution, but must also show that the persecution which is feared, is for one or more of the reasons enumerated in this Article of the Convention: Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 (“Guo”) at 570. Further, Article 1A(2) has been qualified by s.91R(1)(a) of the Migration Act 1958 (“the Act”) (operational on 1 October 2004) the effect of which is that the Convention reason, or reasons, must constitute at least the essential and significant reason, or reasons, for the persecution. The term “persecution for reasons of” involves the concept of persecution, and the causal connection to the relevant characteristic of the person being persecuted. Also, the harm feared need not be solely attributable to a Convention reason, but pursuant to s.91R(1)(a) of the Act, where the harm feared is attributable to a number of motivations, it will be insufficient that a Convention ground, or grounds, constitute a minor motivation. To come within Article 1A(2), as qualified by s.91R(1)(a) of the Act, the Convention ground or grounds must constitute at least the essential and significant reason for the persecution.

7. There appeared to be a number of aspects to the applicant's complaint:

   1)The applicant complains (at paragraphs 10 and 11 of her written submissions) that the Tribunal relied on the findings, made by the Minister's delegate, which led it to the error articulated in paragraph 12 of the written submissions.

   I cannot see, in looking at the Tribunal's decision record, that it relied in its “Findings and Reasons” on the findings of the Minister's delegate. Although the Tribunal makes reference to the delegate’s decision record (CB 89.4) it is clear, in the context of the Tribunal's decision record as a whole, that in doing so, the Tribunal was setting out the claims and evidence that were before it. Further, the reference to the delegate’s decision record is clearly a reference to the independent country information before the delegate relating to the applicant's claims. There is nothing in the Tribunal’s analysis of the claims, and evidence, to show that it relied on the delegate’s findings to the extent that these findings were specifically adopted by the Tribunal. I also note that in the evidence presented to this Court by the applicant herself, namely the transcript of the hearing before the Tribunal, the Tribunal specifically notified the applicant (T1.8) that the “present procedure” was a review from the unfavourable delegate’s decision and made it clear that the Tribunal's decision was made independent of the first respondent’s Department. This aspect of the complaint does not succeed.

   2)The applicant also alleges that the Tribunal made a finding that the incidence of violence in some areas of Fiji were “isolated” events, and did not form a part of a systematic course of conduct directed against Indo-Fijians because of their race (paragraph 12 of the written submissions).

   I cannot see in the Tribunal's “Findings and Reasons” that the Tribunal made any such finding. I agree with the respondent’s submission that, relevantly, the Tribunal found that apart from incidents in the context of “ordinary criminal lawlessness”, the independent reports available to it did not “substantiate general attacks on or targeting of Indo-Fijians” (CB 94.8).

   3)That the Tribunal misconstrued the relevant law it was required to apply. The assertion was that this can be discerned notwithstanding definition of persecution set out by the Tribunal in its decision record at CB 87.

   The Tribunal's understanding of the term persecution is set out in the usual unexceptional terms at CB 87. I cannot see that its application of this understanding was deficient in any way, as put forward by the applicant now. But in any event, what is clear is that the Tribunal found that whatever the situation relating to violence, and the incidence of violence, that the Fijian Government was “fully” committed to protecting all citizens regardless of ethnicity and that the independent reports did not substantiate the claim of general attacks on or targeting of Indo-Fijians. In any event, the reports indicated that the security and legal apparatus has moved effectively against those involved in the May 2000 coup. The Tribunal's ultimate finding in this regard is that Indo-Fijians were not denied their basic rights, or that persecution or mistreatment of them was permitted or condoned by the security authorities or the Fijian government. This ground does not succeed. 

8. The second ground is based on a complaint that the Tribunal failed to correctly apply the law in relation to state protection as required by the Convention. The Tribunal found effective state protection was available where the independent country information available to it indicated that the present government was fully committed to protecting all citizens without discrimination (CB 94.8). As shown in the Tribunal’s decision record, it made the finding that it was not satisified that the Indo-Fijians are denied their basic rights and that persecution or mistreatment of them is permitted or condoned by the security authorities or the government and therefore concluded that Indo-Fijians do not face a real chance of persecution by the government or other authorities. Further, that the authorities do not condone crimes against Indo-Fijians.

9. The question as to whether the state can be said to provide sufficient protection is relevantly addressed in SZDWR v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 36 (“SZDWR”). In upholding the standard referred to by Brennan CJ. in Minister for Immigration & Multicultural & Indigenous Affairs v Respondents S152/2003 (2004) 205 ALR 487 (“S152/2003”) the Court in SZDWR states at [18] that:

   “The Australian jurisprudence on the issues of persecution and State protection do not support the notion of a third category of persecution. In Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 233 (referred to with approval in Minister for Immigration and Multicultural and Indigenous Affairs v Respondents S152/2003 [2004] 205 ALR 487; HCA 18 at [19] ("S152/2003"), Brennan CJ said that the definition of refugee must be speaking of a fear of "persecution that is official, or officially tolerated or uncontrollable by the authorities or the Courts of the Refugee’s nationality". It follows that where the conduct of police, not acting as agents of the State, is said to amount to persecution, the question which arises is whether the State and its agencies are able and willing to deal with it. The standard of protection referred to in the cases is that of a reasonably effective police force and a reasonably impartial system of justice: see S152/2003 at [28]. It is not complete efficacy and it does not require the State to act immediately. We respectfully agree with Sir Murray Stewart-Smith’s view that these requirements would raise the standard to one of a guarantee of safety. S152/2003 confirms that no country can be taken to offer such a guarantee (at [26]).”

10. The applicant puts forward a number of different aspects to this complaint, but one in my view merits noting in the context of explaining to the applicant why she would have been unsuccessful in relation to her other complaints:

    1)The applicant says that in its reporting of what occurred at the hearing (at CB 90.3), relevant to the issue of state protection, the Tribunal used the phrase: “if the police”. The applicant complains that by its use of these words, the Tribunal should have subsequently acknowledge in its “Findings and Reasons” that the police could not afford the applicant the level of state protection that should be afforded to her such that it could be said to be “effective”.

    While noting that the Tribunal's decision record should not be read with an “eye attuned to error”, nor with “overzealous” focus on one word (“if”) as set out in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”), it is clear that in its “Findings and Reasons” the Tribunal did acknowledge that the police have often been ineffective. However, the Tribunal found that this was a problem for “Fijians generally”, and secondly that there was no evidence to show that the authorities provided ineffective protection to Indo-Fijians for a Convention reason. As the respondent rightly submits, no country can be held to guarantee that its citizens, at all times, and in all circumstances, will be safe from violence: see S152/2003 at [26]. In the same case Kirby J. at [117] stated that the Convention did not require the elimination of all risks of harm. Rather, His Honour said it “posits a reasonable level of protection not a perfect one”.

    2)While I can see no error in what the Tribunal has done as argued in the applicant’s submissions, this ground of complaint of course is linked to ground 4. The Tribunal’s consideration of adequate state protection was in my view deficient in that it did not properly consider the issue as it related to the applicant’s particular circumstances as an Indo-Fijian woman.

11. The applicant’s third ground complains that the Tribunal failed to disclose adverse country information on which it relied in the making of its decision. The applicant complains that even though the Tribunal records (at CB 90) that:

    “The Tribunal put to the applicant material indicating that the situation had changed significantly…”

    the Tribunal did not do this.

    No material was presented to the applicant. At paragraph 30 of written submissions the applicant makes reference to T8 and that the Tribunal made reference to certain information, but did not show the reports from which the information was derived to the applicant. While the Tribunal's reference in its decision record (at CB 90.3), where it recounts what occurred at the hearing with the applicant, can be seen to be somewhat ambiguous as to what exactly it put to the applicant, whether it put the actual material, or put the indications or inferences arising from that material, the transcript shows that it was the latter. The applicant argues that such failure reveals jurisdictional error on the part of the Tribunal as it failed to put to the applicant information, in writing, pursuant to s.424A of the Act (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24). The short answer to the applicant's complaint in this regard is that on what is before me, it is clear that this material did not encompass information that was personal to the applicant and fell within the exception contained in s.424A(3)(a) from the requirement to put it to the applicant in writing pursuant to s.424A(1). Further, I note and accept the respondent’s argument that s.422B of the Act (Lay Lat v Minister for Immigration and Multicultural Affairs [2006] FCAFC 61) provides that the Tribunal's exhaustive obligations in this regard are contained in s.424A.

12. The applicant also complains, in relying on Minister for Immigration and Multicultural Affairs v Rajalingham (1999) 93 FCR 220 (“Rajalingham”) that the Tribunal did not give any consideration to the “fact” that some of the perceived fear that she had may be “true”. The applicant submits that the Tribunal failed to apply the: “What if I am wrong?” test as required in Rajalingham. The “What if I am wrong?” test was as expounded by the High Court in the cases of Wu Shan Liang, Guo, Abebe v The Commonwealth of Australia [1999] HCA 4 at [11] and as explained by the Full Court in Rajalingham where the Court held at [240]:

    “…When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a "real substantial basis" for the applicant's claimed fear of persecution…”

13. This clearly applies where the Tribunal has some doubt that its findings, both as they apply to the past, and the future, are correct. If it has no real doubt then it is not bound to consider whether its findings might be wrong. At [238] the Court said:

    “In the present case, however, the Tribunal appears to have had no real doubt that its findings both as to the past and the future were correct. That is, the Tribunal appears to have taken the view that the probability of error in its findings was insignificant. Once the Tribunal reached that conclusion, a finding that nevertheless Mr Guo had a well-founded fear of persecution for a Convention reason would have been irrational. Given its apparent confidence in its conclusions, the Tribunal was not then bound to consider whether its findings might be wrong.”

14. It is clear that in the case before me, the Tribunal's decision was not attendant with any such doubt. As the respondent, correctly in my view submits, a fair reading of the Tribunal's decision does not reveal that it had any real doubts about its findings so as to impose an obligation to ask itself whether its findings may be wrong. Nor can any such doubt be imputed. This ground also fails.

15. The applicant's sixth ground of complaint is said to be based on “serious harm and findings on aspects of the evidence going to jurisdiction”. The applicant submits that the Tribunal failed to properly consider “discrimination amounting to persecution” in Fiji, and that the Tribunal did not consider that the applicant would suffer discrimination amounting to persecution involving serious harm if she returned to Fiji now or in the reasonably foreseeable future. The applicant submits that “the Tribunal instead applied the country information and applied a generalised class of all of Fiji that was not relevant to the applicant's social class”. To the extent that this ground refers to the Tribunal's assessment of her claims as an Indo-Fijian woman, I have already dealt with this at ground four above. To the extent that this ground amounts to a complaint that the Tribunal properly failed to consider whether any existing discrimination amounted to persecution in the context of the harm that was said to have been suffered by the applicant's in-laws, then clearly the Tribunal plainly considered this issue at CB 94.3 and CB 94.5. This ground, as it does not relate to her claim as an Indian woman in Fiji, does not succeed. 

16. The applicant also appears to argue, and this is derived from her affidavit, that she was not given an opportunity to elaborate or expand on her claims. Clearly, this is at odds with what can be plainly seen from the transcript of the hearing with the Tribunal. I note the respondent’s references in submissions to what is set out at T10.5, T17.8 and T18.3.

17. Further, the applicant claims that the Tribunal's failure to consider the fear that she had, and the conduct of the hearing “seemed biased”. In relation to the applicant’s complaint of bias, the applicant has put nothing before the Court to establish any of the relevant elements as set out in authorities. For the applicant’s benefit, I should at first note that an allegation of bias, or bad faith, on the part of a Tribunal is an extremely serious matter. An allegation of actual bias or the apprehension of bias must be supported by evidence. Such an allegation implies that the Tribunal member, by their attitude and conduct, can be shown to have preset in their mind the ultimate outcome of the matter.

18. In particular, allegations of actual bias carry with them the onus that they must be distinctly made and clearly proved. Actual bias requires evidence of “prejudgement” by the decision-maker in the sense that he/she is “so committed to a conclusion already formed as to be incapable of alteration or of being persuaded differently, whatever evidence or argument may be presented” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 at [69], [71]-[72], [127]). The real question is whether the mind of the decision maker is open to persuasion. I note in this regard that the applicant would need to present more than just the conclusion reached by the Tribunal to support this claim. Allegations of the apprehension of bias must be reasonable to succeed. The standard of reasonableness is determined by reference to the apprehension of “a fair-minded lay observer or a properly informed lay person” observing the Tribunal processes (see Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27] to [32]). In relation to the test for bad faith on the part of the Tribunal I refer to Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142 at [18] to [20]. Such allegations must be clearly alleged, supported by evidence and demonstrative of personal fault or an absence of honesty on the part of the decision maker.

19. The applicant has brought no evidence whatsoever to ground a complaint that the Tribunal did not bring an open mind to the assessment of her claims.

1. In any event, for the reasons set out above, there is jurisdictional error in the Tribunal’s decision. Accordingly, I will make the orders sought by the applicant, as I can discern no reason not to so exercise my discretion.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate:

Date: 09 August 2006