SZDXO v Minister for Immigration
[2005] FMCA 1336
•15 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDXO v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1336 |
| MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicant married to high ranking military officer involved in the 1987 and 2000 coups claims fear of persecution from Fijian authorities for imputed political opinion – applicant claims fear of domestic violence from husband if she returned to Fiji – Tribunal failed to consider or decide applicant’s claim of fear of persecution from Fijian authorities for imputed political opinion. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S |
| NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263 Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389 |
| Applicant: | SZDXO |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1941 of 2002 |
| Judgment of: | Emmett FM |
| Hearing date: | 23 August 2005 |
| Date of Last Submission: | 23 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 15 September 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr L. Karp |
| Solicitors for the Applicant: | Mr N. McNally, Parish Patience Lawyers |
| Counsel for the Respondent: | Mr J. Potts |
| Solicitors for the Respondent: | Mr L. Martin, Clayton Utz |
ORDERS
A writ of certiorari issue quashing the decision of the Refugee Review Tribunal made on 1 September 2003 and handed down on 25 September 2003.
A writ of mandamus issue requiring the Refugee Review Tribunal to redetermine the application before it according to law.
That the Respondent pay the Applicant’s costs in an amount of $7000.00.
That in addition to the costs in accordance with Order 3, the Respondent pay the Applicant’s costs of filing the application before this Court and the hearing fee.
That the Respondent pay the costs in accordance with Orders 3 and 4 within 28 days unless otherwise agreed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1941 of 2004
| SZDXO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Application
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the delegate”) not to grant a protection visa to the Applicant.
The Applicant was born in Tavua Fiji on 6 February 1954.
The Applicant claims to be a citizen of Fiji.
The Applicant arrived in Australia on 14 June 2001.
On 12 May 2003 the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Migration Act 1958 (Cth) (“the Act”).
On 29 July 2003 the delegate of the Minister refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol.
On 13 August 2003 the Applicant lodged an application for review before the Tribunal. On 15 March 2004 the Tribunal affirmed the decision of the delegate not to grant a protection visa.
On 24 June 2004 the Applicant filed an Application in this Court seeking judicial review of the Tribunal’s decision.
Pursuant to directions made on 29 September 2004 the Applicant filed an Amended Application on 12 August 2005.
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.
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.
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 claims before the Tribunal
The Applicant claimed to be of Fijian ethnicity and of the Christian religion. She has three adult daughters and a son born 13 September 1998 all of whom continue to reside in the Fiji Islands.
On 13 August 2003 the Applicant applied to the Tribunal for review of the delegate’s decision.
Before the Tribunal, the Applicant made the following claims:
a)That her husband was the Chief armourer of the Fijian military under the Rambuka government and played a role in the coups in Fiji in 1987 and 2000 (“the coups”).
b)That in 1987 she married her husband, although they had been living together for 6 years prior to that time.
c)That, prior to the marriage, she and her husband had a “wonderful relationship”.
d)That, after her marriage, her husband began drinking and became increasingly violent towards her. The Applicant stated that Fijian men claim they can treat their wives however they wish. The Applicant gave two particular examples of abuse. The first example was in 1992 when her husband kicked and beat her in front of his friends and also in front of their son who was then four years old. The second example was in the 1980s when her husband beat her in a taxi, dragged her from the taxi to the house and left her on the floor bruised. He then told her to go to work because he wanted her boss to see her in her bruised state. The Applicant claimed that these sorts of things “happened often”.
e)That her husband forced her to have sex with him and in Fiji that is not regarded as rape.
f)That domestic violence is not unusual in many Fijian marriages and that when a husband beats his wife it is something that one feels ashamed about and is not something that one can discuss openly or easily.
g)That she went to her family doctor on a number of occasions but he would not do anything to interfere.
h)That she complained to the local police on three occasions during the 1980s, however, they never helped her or made a note of her complaint.
i)That she complained to Rambuka himself about her situation with her husband and his violence. She said that Rambuka told her that he would do something but nothing was ever done.
j)That, in the late 1980s, she lodged a complaint with the Family Court in Suva for financial assistance but was told by the Magistrate to go home and reconcile.
k)That her family were aware of what was going on, however, they would not get involved and told her to settle her own problems.
l)That, in April 2000, her husband left for Australia. In May or June 2001, her husband told her to come to Australia to be with him. The Applicant claimed that she felt she had no choice in the matter so left Fiji, and travelled to be with her husband.
m)That, on 9 July 2001, shortly after arriving in Australia, the Applicant was involved in a car accident in which she sustained serious injuries.
n)That her husband did not beat her while she was recovering, however, she was forbidden from going anywhere, seeing friends and was locked inside during the day.
o)That, in September 2001, her husband told her he would be leaving to go to America with a woman with whom he was intending to live in a de facto relationship.
p)That she has not seen her husband since he left for America, although she was in contact with him until May 2002.
The Tribunal hearing
The Applicant gave oral evidence at the hearing during which the following was discussed:
a)The delay in the lodgement of her application for a protection visa. The Applicant stated that she thought everything had been attended to by her solicitor.
b)The Tribunal asked the Applicant about her relationship with her husband whilst in Australia, to which the Applicant responded that, although her husband did not physically hurt her, he was not “very loving”.
c)The Applicant stated that, after her husband left for America, she obtained his contact details from his sister and contacted him seeking financial assistance, which he provided. She stated that her husband confirmed that he was in a relationship with another woman and that the relationship was “strong”.
d)The Tribunal asked the Applicant if the husband wanted a divorce and the Applicant replied that she was uncertain about his intention. However, she believed that if she was to return to Fiji he would also return and abuse her again. She said that she had spoken to her husband recently in February 2004 regarding renovations of their house in Fiji and that he had said to her that he would look for her as soon as she returned to Fiji.
e)The Applicant said that, when she reported the incidents of violence in Fiji to the police, she was told, on three or four occasions, “we’ll sort it out” but no action was taken.
f)The Applicant said that her application to the Family Court was for financial assistance and not domestic violence.
g)The Tribunal put to the Applicant that, in August 2000, President Ratu Josefa Iloilo had granted immunity from criminal prosecution or civil suits for members of the dissident forces who participated in events during the coups. The Applicant responded that the authorities could still interrogate.
h)The Tribunal also put to the Applicant that independent country information revealed that, whilst domestic violence remained a major problem in Fiji, police had adopted a “no drop” rule. This meant that cases of domestic violence were prosecuted even where the victim did not wish to press charges.
i)The Applicant confirmed that she had no difficulties in leaving Fiji and that she had never been questioned by the army or police.
The Tribunal was satisfied that the Applicant is a citizen of Fiji.
The Tribunal was satisfied that the Applicant was a victim of domestic violence in Fiji by her husband. The Tribunal was satisfied that her husband was now living in America with another woman.
The Tribunal was satisfied that, whilst living in Australia, the husband did not assault the Applicant although, the Tribunal was satisfied that the Applicant had been assaulted by her husband in the past.
The Tribunal concluded that there was no reason why the Applicant could not return to Fiji and continue to live there. The Tribunal was not satisfied that there is a real chance of Convention related harm occurring to the Applicant in the reasonably foreseeable future.
Accordingly, the Tribunal was not satisfied that the Applicant was a person to whom Australia owed protection obligations under the Refugees Convention as amended by the Refugees Protocol.
The proceeding before this Court
The Applicant was represented by counsel before this Court and relied on her Amended Application for judicial review filed on 12 August 2005 citing the following grounds:
“1. The second respondent committed jurisdictional error by failing to consider and decide on the applicant’s claim that she faces persecution at the hands of the Fijian authorities in the course of interrogation as to her knowledge of her husband’s activities.
2. The second respondent committed jurisdictional error by failing to ask the question required of it by law.
Particulars
(a) It dismissed the applicant’s claims that she faced persecution at the hands of her husband and her husband’s colleagues because these claims were ‘speculative’, whereas the Tribunal had to engage in speculation as part of its statutory task.
(b) The Tribunal asked itself whether it was satisfied that the applicant’s husband would return to Fiji if she were to return, whereas it should have asked whether there was a real chance of this happening.”
Before the Tribunal, the Applicant claimed to be afraid to return to Fiji for fear of persecution from 3 sources:
a)The Fijian authorities (“the Authorities”). She feared she “may be in trouble with the authorities because they will naturally suspect that I, wife of a man who was involved in the coup, would be able to give them information about his involvement”. The Applicant claimed that police in Fiji are brutal in their treatment of people who they suspect or arrest, particularly women.
b)Her husband’s past associates (“the Associates”). She feared that, if she returned to Fiji, her husband’s “past associates, who were involved in the coup, will hunt me down because they suspect I may implicate them if I am questioned about my husband’s involvement in the coup by the authorities”. The Applicant stated that her husband had many relatives who held powerful positions in the Fijian government system and that if she tried to speak out against her husband these people would make sure some harm would be visited upon her.
c)Her husband. She feared that her husband will immediately return home to her in Fiji if she were to return to Fiji. The Applicant claims that all her husband would have to do in Fiji to effect reconciliation would be to approach her family and ask for reconciliation. The Applicant expressed further concern about the reaction of her husband if he were to discover that the Applicant had lodged a complaint in Australia about his treatment of her.
Ground 1, that the Tribunal erred in failing to consider and decide the Applicant’s claim of fear of persecution by the Fijian authorities
In relation to the first ground, the Applicant submits that the Tribunal did not reach a conclusion as to whether there was a real chance of the Applicant being interrogated and persecuted by the Authorities because of her connection to her husband and his role in the coups. Although not clearly articulated by the Applicant before the Tribunal, the Applicant’s claim of persecution would appear to be for imputed political opinion and was sufficiently raised on the material before the Tribunal, such that, the Tribunal was obliged to deal with it (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 (“NABE”).
It is common ground that a failure by the Tribunal to consider and decide this claim would be jurisdictional error (Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389 (“Dranichnikov”) and NABE.
The Applicant submitted that the Authorities may be expected to keep a close eye and a heavy hand on those who may have a connection to potential participants in future coups. The Applicant was also fearful that in her experience, police are brutal in their treatment of people they suspect or people they arrest and that this is especially true for women. The Applicant cites an example in respect of her daughter who was taken into custody last year as a witness to a robbery. The Applicant asserts that her daughter was beaten and kicked in jail and had no one to turn to for help.
The question for consideration by the Tribunal was, whether or not this fear was well founded, in that, there was a real chance of persecution by the Authorities in the reasonably foreseeable future by reason of the political opinion, imputed by the Authorities to the Applicant, arising from her husband’s military involvement in the Fiji coups, if the Applicant were to return to Fiji.
The Tribunal accepted, as being “plausible”, that the husband had some sort of involvement in the coups. The Tribunal also accepted that, in September or October 2000, the husband was willingly taken by the army for questioning but was later returned home. The Tribunal then went on to note that there was no evidence before the Tribunal suggesting that either the Applicant or her husband had suffered any Convention related harm as a result of his military involvement.
The Tribunal also noted that the Applicant had never been questioned by the Authorities about any information regarding her husband’s role in the coups. The Applicant, in the context of her claim of fear of the Associates, relied, as part of the factual matrix of that claim, on her fear that the Associates may suspect she might implicate them if she was questioned by the Authorities.
The Tribunal considered the Applicant’s claim, in respect the Authorities, in relation to her fear of persecution from the Associates, who may fear that she might disclose information placing them in a precarious position, if she was to return to Fiji.
Following consideration of that issue, the Tribunal concluded:
“In summary, there is no reason why this Applicant could not return to Fiji and continue to live in Fiji.
On the basis of the evidence as a whole, the Tribunal cannot be satisfied that there is a real chance of convention related harm occurring to the Applicant in the reasonably foreseeable future.”
The First Respondent concedes that this finding is the only finding capable of being a finding that dealt with the Applicant’s claim of fear of persecution from the Authorities as a result of her husband’s involvement in the coups.
However, the First Respondent contends that such a finding is subsumed in the generality of the findings made by the Tribunal. See, Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 (“Applicant WAEE”) at [46 – 47], particularly at [47].
The Applicant contended that the Tribunal had failed to consider and decide the Applicant’s claim of fear of persecution by the Authorities for imputed political opinion.
The Applicant referred to the passage in the decision of the Full Court of the Federal Court of Australia in Htun v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 194 ALR 244 at 259 in which Allsop J, with whom Spender J agreed, said the following:
“The requirement to review the decision under section 414 of the Act requires the Tribunal to consider the claims of the Applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on the claim or claims and its or their components and integers are considerations made mandatorily relevant by the Act for consideration…it is to be distinguished from errant fact finding. The nature and extent of the task of the Tribunal revealed by the terms of the Act…make it clear that the Tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant.”
The Full Court, in referring to the High Court in Dranichnikov stated that:
“where the Tribunal fails to make their finding on…substantial, clearly articulated argument relying upon established facts that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction.”
However, the Court is to approach understanding the reasons of the Tribunal by giving a beneficial, commonsense and realistic construction to the reasons and not with “a finely attuned antenna for error” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”) at 271; Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 (“Fang Wang”)).
Section 430(1) of the Act, requires the Tribunal, inter alia, to set out its findings on any material questions of fact and refer to the evidence or any other material on which the findings of fact were based.
A material question of fact, required to be considered and decided in relation to whether or not the Applicant had a well founded fear, is whether or not there was a real chance of the Applicant being interrogated and persecuted by the Authorities because of her husband’s military and political role in the coups. In considering if the Applicant’s fear was well founded, the Tribunal must consider if there is a real chance of persecution for a Convention related reason (in this case, the Applicant’s imputed political opinion) if the Applicant was to return to Fiji (Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (“Chan”). In considering if there is a real chance of persecution, it is relevant to have regard to past persecution (Minister for Immigration & Ethnic Affairs v Guo Wei Rong & Anor (1997) 191 CLR 559 (“Guo”) at 575; Abebev Commonwealth of Australia (1999) 197 CLR 510 (“Abebe”) at 578.
The First Respondent submits that the Tribunal had observed that there was no evidence before it to suggest that the Applicant or her husband had suffered any Convention related harm as a result of his military involvement. The Tribunal noted that the Applicant had never been questioned by the Authorities regarding her husband’s role in the coups. The First Respondent relies on those statements by the Tribunal as supporting her contention that the Tribunal dealt with the question of any past persecution by the Authorities, arising from any political opinion imputed to the Applicant by the Authorities, by reason of her marriage to a high ranking military officer involved in the coups.
The First Respondent submits that the Tribunal considered the claim and its finding, in relation to the Applicant’s claim of fear of persecution from the Authorities, is to be found in its conclusion that, “On the basis of the evidence as a whole, the Tribunal cannot be satisfied that there is a real chance of Convention-related harm occurring in the reasonably foreseeable future.”
The Applicant contends that the findings, referred to in paragraph 40 above, are part of the Tribunal’s findings in its consideration of the Applicant’s claim of a fear of persecution from the Associates. Certainly, the Tribunal does not distil the Applicant’s claims, as identified by the Applicant in her written claims before the Tribunal, and referred to in paragraph 24 above. The Applicant prefaced those written claims with the words, “I am afraid to return to Fiji for three reasons.”
In its decision, the Tribunal dealt, first, with the Applicant’s claim of fear of her husband’s return to Fiji and was not satisfied that her fear in respect of that claim was well founded.
The Tribunal then proceeded to deal with the Applicant’s “fear based on her husband’s role in the military in the… coups”. The Tribunal does not distinguish between the Applicant’s claim of fear of persecution by the Authorities and fear of persecution by the Associates. The Tribunal specifically dealt with the Applicant’s claim of fear of persecution from the Associates and was not satisfied that there was a real chance of such persecution occurring in the reasonably foreseeable future.
Having dealt specifically with both of the Applicant’s claims of fear of persecution from the Associates and fear of persecution from her husband, the Tribunal concluded, “In summary there is no reason why this applicant could not return to Fiji and continue to live in Fiji. On the basis of the evidence as a whole, the Tribunal cannot be satisfied that there is a real chance of Convention-related harm occurring to the applicant in the reasonably foreseeable future.”
It is clear that the Tribunal intended to make specific findings in respect of the claims identified by it. However, it identified only those claims by the Applicant of fear of persecution by the Associates and fear of persecution from her from her husband. The Applicant had raised the possibility of being questioned by the Authorities in support of her claim of fear of the Associates. The Tribunal’s only reference to the Authorities is in the context of noting that the Applicant had not been questioned by them. The Tribunal used that finding as part of its reasons for rejecting the Applicant’s claim of fear of persecution from the Associates.
I do not accept that the finding by the Tribunal that, “On the basis of the evidence as a whole, the Tribunal cannot be satisfied that there is a real chance of Convention-related harm occurring to the applicant in the reasonably foreseeable future”, includes a finding in respect of the Applicant’s specific claim of fear of persecution from the Authorities.
The Tribunal failed to consider properly the Applicant’s claim of fear of persecution by the Authorities, make findings in respect of that claim and provide reasons for those findings. In the circumstances, the Tribunal failed to exercise its power.
Accordingly, there is a constructive failure to exercise jurisdiction thereby constituting an error of law that is jurisdictional error authorising the provision of relief.
Ground 2, that the Tribunal erred in dismissing the Applicant’s claims that she feared persecution from her husband’s past associates as speculative
The Tribunal accepted as “plausible”, that the Applicant may be subjected to threats by the Associates who may fear she may disclose information that may place them in a precarious position.
The Applicant submits that the Tribunal in accepting the Applicant’s claim as “plausible” is suggestive of a reasonable possibility.
The Applicant submits that, having accepted the Applicant’s claim as “plausible”, the Tribunal stated that it was “of the view that this is a speculative claim”. The Applicant contends that, in using the word “speculative”, in light of having accepted the Applicant’s claim as a reasonable possibility, the Tribunal was failing to make a prediction about the future which it is otherwise obliged to do.
The Oxford English Dictionary, unabridged 2nd edition, defines “speculative” as, inter alia, “mere conjecture”, and “plausible” as, inter alia, “having an appearance or show of truth, reasonableness, or worth; apparently acceptable or trustworthy”. The Applicant submits that it is difficult to see the logic between the use of these 2 adjectives as supporting consistent conclusions of the same facts.
The Applicant submitted, that the Tribunal was intending to use “speculative”, in accordance with the High Court in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 and cited in Wu Shan Liang where Deane, Gaudron and McHugh JJ said, at 277, the following:
“that…unless the chance is so low as to be regarded as speculative – say less than 1%”
The High Court in Wu Shan Liang stated that the word “speculative” in the context that it appears is what is relevant in considering whether or not it is intended to be descriptive of a real chance or the probative force of the matter before the delegate.
The Applicant referred to Wu Shan Liang in relation to the use of the word “speculative” in which the High Court, at 277, says:
“The word ‘speculative’…need not amount to a denial of the delegate’s function of assessment of future chances of persecution. Rather, the word might equally have been used to refer to the probative force of the material before the delegate.”
In Guo the majority stated, at 572, the following:
“If, by speculation, his Honour meant making a finding as to whether or not an event might or might not occur in the future, no criticism could be made of his use of the term.”
Their Honours went on to say that, if the term was used in its dictionary meaning of conjecture or surmise, then conjecture or surmise had no part to play in determining whether a fear is well founded. Their Honours, at 572, said:
“A fear of persecution is not well founded if it is merely assumed or if it is mere speculation.”
The Applicant contends that, in describing the Applicant’s claim as “speculative”, the Tribunal was not referring to the probative force of the Applicant’s claim and therefore did not consider and evaluate the Applicant’s claim as it was required to do.
The Applicant relied on Dixon J in Avon Downes Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360, as supporting her contention that, in using the word “speculative”, the Tribunal had failed to undertake the task required of it, namely to consider and provide reasons as to whether or not there was a real chance of the persecution claimed occurring in the foreseeable future.
The Applicant submitted that the Tribunal committed jurisdictional error by failing to ask the question required of it by law, in that it dismissed the Applicant’s claims that she faced persecution from the Associates because these claims were “speculative”, whereas the Tribunal had to engage in speculations as part of its statutory task.
The First Respondent submits that in using the word “plausible”, in respect of the possibility of the Applicant being subjected to threats, the Tribunal is intending to use the word in context to mean not superficially unreasonable and that its use in context is, therefore, consistent with the use of “speculative” as indicating not more than 1% chance of persecution.
The First Respondent submits that the language used by the Tribunal, in the context, is a looseness of language that ought to be overlooked on the basis that the reasons of an administrative decision maker are meant to inform and not be scrutinised by overzealous judicial review by seeking to “discern whether some inadequacy may be gleaned” (Wu Shan Liang at 272). Nor is a court to be concerned with unhappy phrasing of the reasons of the administrative decision maker. The reasons for a decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error. Further, a common sense and realistic approach should be taken to understanding the reasons as a whole to see what it was that a tribunal was saying. (Wu Shan Liang at 272).
The Tribunal’s use of the word “speculative”, in the context, is intended to reflect the probative degree of satisfaction found by the Tribunal in respect of the Applicant’s claim of a fear of threats by the Associates because she may, if questioned by the authorities, disclose information that may place them in a “precarious position”.
In describing the Applicant’s claim that she may be subjected to threats by the Associates because of the Associates fear she may disclose information to authorities that may place the associates in a precarious position, as “plausible”, the Tribunal is using “plausible” in the sense of not superficially unreasonable, as contended by the First Respondent.
Having found the claim referred to above, to be “speculative”, the Tribunal immediately concludes, “Therefore, the Tribunal is not satisfied that there is a real chance of this occurring in the reasonably foreseeable future.” That is the correct test and the Tribunal has applied it to the factual findings made by it.
It is an unfortunate and loose use of language by the Tribunal, however, a fair and beneficial reading of the reasons for the decision lead me to be satisfied that the Tribunal has considered the claim and decided it, in accordance with its statutory duty.
Accordingly, this ground is rejected.
Ground 3, the Tribunal erred in that it applied the wrong test in considering whether or not there was a real chance that the Applicant’s claim of fear that husband might return to Fiji.
The Applicant submits that the Tribunal applied the wrong test in considering whether the husband might return to Fiji. The relevant parts of the decision are as follows:
“The Tribunal acknowledges that whilst it is possible that her husband would return to Fiji if she were to return, given the fact that he is currently in a “strong” relationship and the fact that he and the applicant have had very little contact, the Tribunal cannot be satisfied that the husband would return to Fiji if she were to return. The Tribunal is satisfied that the applicant’s fear in this regard is based on mere speculation that her husband would return.
In light of the above finding, the Tribunal cannot be satisfied that there is a real chance of domestic violence occurring in the case of this applicant in the reasonably foreseeable future. Clearly the occurrence of domestic violence is contingent upon the applicant being with her husband. The fact is, they are not together and it is speculative that they would be a married couple in the future.”
The Applicant submitted that a fear of persecution can be well founded even though the chances of it occurring are very slim (Chan at 429). The Applicant submits that it is only after that test is applied that the question of satisfaction arises.
The Applicant submits that the appropriate question for the Tribunal was, whether or not there was a real chance of her husband returning, rather, than, whether or not the Tribunal was satisfied whether the husband would return. The Applicant submitted that the Tribunal, therefore, imposed the wrong test of well founded fear regarding the possibility of the husband returning and the prospect of persecution occurring.
The Applicant submitted that the Tribunal’s finding that it could not be satisfied that the husband would not return to Fiji led the Tribunal to conclude that the Applicant’s fear is “mere speculation”.
The Applicant submits that the Tribunal was required to consider whether her fear is well founded by considering whether there is a real chance the persecution would occur.
Whilst the Applicant expressed her fear as one that her husband may return to Fiji if she were to return, plainly, the harm she fears is of domestic violence occurring in that event. In considering whether or not her fear is well founded, the Tribunal must consider whether or not there is a real chance of the harm feared occurring in the reasonably foreseeable future.
The First Respondent submits that the Tribunal’s decision read fairly as a whole, makes it plain that the Tribunal understood the task required of it and properly identified its tasks.
The First Respondent submits that in using the word “mere speculation” in relation to the likelihood of the return of the husband to Fiji, the Tribunal was conveying the notion that there was no foundation of substance for the Applicant’s fears and therefore the realisation of those fears was unlikely.
The First Respondent submits that on a fair reading of the context, the conclusion by the Tribunal that it was “mere speculation” that the husband would return to Fiji, if the Applicant returned, was use of the word in the sense of it being unlikely. In other words, because the Tribunal found that it was unlikely that the husband would return to Fiji, the Tribunal found there was not a real chance of domestic violence in the reasonably foreseeable future.
It is clear from the paragraph quoted in paragraph 68 above, that the Tribunal considered whether or not there was a real chance that the Applicant would suffer domestic violence in the reasonably foreseeable future. That is the relevant test in considering whether or not the Applicant has a well founded fear.
The Tribunal identified the factual basis that led it to conclude that the husband was not likely to return to Fiji if the Applicant were to return. Namely, that the Applicant herself had identified the husband’s new relationship as “strong” and that she had not seen the husband since he had left for America in 2001, although she had recent contact with him in relation to financial assistance which he had agreed to provide for her.
It is sufficiently clear in the context of the use by the Tribunal of the words, “the Tribunal cannot be satisfied that the husband would return to Fiji if she were to return”, that the Tribunal was not applying a test of being “satisfied”. Rather that it was making findings of fact to which it applied the correct test of whether or not there was a real chance in the reasonably foreseeable future of the harm feared by the Applicant occurring.
Ultimately, the Tribunal was not satisfied that there was a real chance of Convention related harm occurring to the Applicant in the reasonably foreseeable future.
I refer to the authorities elsewhere, in these reasons for judgement, in relation to reviewing the reasons and decision of the Tribunal. Again, on a beneficial construction, the Tribunal has been loose with its language. However, its reasons are not to be scrutinised “with an eye keenly tuned to error”. (Applicant WAEE at [46]).
A fair reading of its decision makes it clear that the Tribunal considered the Applicant’s claim of fear of domestic violence by her husband if she was to return to Fiji, made findings in respect of that claim, applied the correct test in considering whether or not the Applicant’s fear was well founded, and concluded that there was not a real chance of domestic violence occurring to the Applicant in the reasonably foreseeable future. Moreover, the Tribunal decided, on the basis of the evidence as a whole, that it could not be satisfied that there is a real chance of Convention related harm occurring to the Applicant in the reasonably foreseeable future.
Those findings were open to the Tribunal on the material before it.
Accordingly, this ground is rejected.
Conclusion
Having found jurisdictional error (see paragraphs 48 and 49 above), the proceeding is remitted to the Tribunal for determination according to law.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S Riddle
Date: 12 September 2005
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