SZDXZ v Minister for Immigration

[2007] FMCA 1689

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDXZ & ORS v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1689

MIGRATION – Review of decision of the Refugee Review Tribunal – no failure to take into account a relevant consideration – failure to mention a piece of evidence does not constitute jurisdictional error – no requirement to invite applicants to comment about information not specifically about the applicants nor about any other specific person – no failure to accord the applicants procedural fairness at general law – no jurisdictional error – application dismissed.

Migration Act 1958, ss.430, 424A, 422B

Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597
Coal and Allied Operations Pty Ltd v Australian Industrial Relations commission and Ors [2000] HCA 47; (2000) 203 CLR 194
SZGKX v Minister for Immigration and Citizenship [2007] FCA 461
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10
WAEE v Minister for Immigration and Multicultural Affairs (2003) 75 ALD 630; [2003] FCAFC 184
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244
VQAB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 104
MZWBW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94
Singh v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1113
MZXGP v Minister for Immigration and Multicultural Affairs [2006] FCA 1314
Mayadeen v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1522
Karras v Minister for Immigration and Multicultural Affairs (1998) 56 ALD 167
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27
QAAC v Refugee Review Tribunal [2005] FCAFC 92
Minister for Immigration and Multicultural Affairsv NAMW (2004) 140 FCR 572
WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131
Kioa v West (1985) 159 CLR 550
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Re Ruddock; Ex Parte Applicant S154/2002 (2003) 201 ALR 437
Abebe v Commonwealth of Australia (1999) 197 CLR 510

Applicant: SZDXZ & ORS

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3697 of 2006

Judgment of: Nicholls FM

Hearing date: 7 May 2007

Date of Last Submission: 7 May 2007

Delivered at: Sydney

Delivered on: 12 October 2007

REPRESENTATION

Appearance for the Applicant: Mr N Dobbie

Solicitors for the Applicant: Parish Patience Immigration Lawyers

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application made to this Court on 12 December 2006 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3697 of 2006

SZDXZ & ORS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. I have before me an application made under the Migration Act 1958 (Cth) (“the Act”) filed in this Court on 12 December 2006 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), dated 2 November 2006, which affirmed the decision of a delegate of the respondent Minister to refuse to grant protection visas to the applicants.

Background

1. The applicants before the Court are husband (SZDXZ) (“the applicant husband”), wife (SZDYA) (“the applicant wife”) and son, who is a minor, (SZDXT) (“the applicant son”), and are all nationals of Fiji. Another son (SZDYB) was also an applicant for a protection visa before the Tribunal but is not included in the application before the Court now.  The applicant husband and the applicant wife arrived in Australia on 5 May 1999 and applied for protection visas on 15 July 1999.  A delegate of the respondent Minister refused to grant protection visas to the applicants on 20 October 1999.  The applicants sought review of this decision with the Tribunal, which affirmed the delegate’s decision on 14 March 2000.  The applicants sought review of the Tribunal’s decision in the Federal Magistrates Court.  On 7 July 2006, the matter was remitted by the Court to the Tribunal to be determined according to law.  The relevant orders of the Court are reproduced in the Court Book (“CB”) filed by the Minister in these proceedings at CB 130.

2. The Tribunal (by this time differently constituted) invited the applicants, by letter dated 28 August 2006 sent to their adviser, who was the authorised recipient for correspondence, to comment on information which the Tribunal said may be relevant to its decision (CB 148 to CB 151).  Further, the applicants were invited to a hearing before the Tribunal scheduled for 17 October 2006.  The applicant husband and applicant wife appeared before the Tribunal.  The Tribunal’s account of what occurred at the hearing is set out in its decision record (CB 182 to CB 197).  The report of the hearing is at CB 186.2 to CB 189.7.

The applicants’ claims to protection

1. The applicants’ claims to protection before the Tribunal arose by reason of their claims to be of the Hindu religion and Indo-Fijian ethnicity in Fiji, and the harm that they feared given the instability existing in Fiji, in particular, as it was said to impact on those of Indo-Fijian ethnicity, and the Hindu religion.  They claim to fear harm from “local Fijians” in relation to a dispute over land.  The applicant wife also claimed to fear sexual assault given the claimed vulnerability of Indo-Fijian women in Fiji.

The Tribunal

1. The Tribunal found:

   1)It had independent evidence before it that Fiji had seen instability in the past and that Indo-Fijians had been targeted for harm by ethnic Fijians, and that the applicants had departed Fiji at a time of considerable instability and violence.

   2)It accepted that the applicants (based on a letter from local police) may again be targeted by local Fijians who were agitating for the return of certain land.

   3)In light of this, it accepted that the applicants may have to relocate to Suva to distance themselves from these local individuals, and that, in all the particular circumstances of the applicants, it would be reasonable for them to do so.

   4)It accepted independent information that the situation in Fiji generally, and in Suva in particular, in terms of ethnic relations, had improved considerably and noted the enhanced professionalism of police in providing protection to Fijian citizens on a non-discriminatory basis.

   5)In light of this, that any fear of harm in these circumstances would not be well-founded.

   6)In relation to the claim of persecution for reason of religion, there was no evidence that the applicants could not practice their religion safely in Fiji.

   7)In relation to the applicant wife’s claims (in particular, noting the applicants’ evidence and the evidence of a letter from local police), that it would be reasonable in the particular circumstances of her case to relocate and that this would remove her from the local people who had threatened her in the past.

   8)It noted independent evidence that indicated that sexual violence perpetrated against women remained a problem throughout Fiji but that adequate protection would be afforded the applicant wife and that her fear of harm was not therefore well-founded.

   9)In any event, the applicants would be able to access protection from the authorities in Fiji, even in relation to harm from the individuals who had harassed them in the past, or from others in Fijian society.

   In all, therefore, the Tribunal affirmed the decision under review.

2. The application, drafted with the assistance of solicitors, puts forward three particularised grounds:

   “1. The Tribunal failed to take into account a relevant consideration.

   2. The Tribunal failed to comply with s424A of the Act.

   3.  The Tribunal failed to accord the Applicants natural justice.”

3. At the hearing before the Court Mr N Dobbie appeared for the applicants, and Mr G Johnson of Counsel appeared for the first respondent.  Before the Court, the applicants comprised the applicant husband, the applicant wife and their second son (the applicant son).  Their first son, who had been part of the application before the Tribunal, appears to have been granted residence in Australia on a separate basis and, in any event, is not part of the application before this Court.  The applicant husband agreed to be the “litigation guardian” for his son.

4. The Court has before it written submissions from both parties and the affidavit of Robert Liu, a solicitor in the employ of the applicants’ solicitors, affirmed 2 March 2007, annexing a transcript (“T”) of the hearing before the Tribunal.

Ground One – failure to take into account a relevant consideration

1. The applicants’ first ground, that the Tribunal failed to take into account a relevant consideration, is particularised with reference to what is said to be the Tribunal’s failure to take into account a letter dated 23 October 2006 from the Divisional Police Commander Southern (Fiji) (reproduced at CB 176).  Following the hearing before the Tribunal, the applicants’ representatives sent a number of documents to the Tribunal which included this letter. 

2. The applicants’ representative’s submission is dated 30 October 2006, and is reproduced at CB 173. It states, relevantly:

   “3.  Original copy of the letter dated 23 October 2006 from the Divisional Police Commander – Southern – Fiji [“the Southern police letter”] confirming that the applicant is likely to face similar problems with the indigenous Fijian even if he relocates from Nadi.”

3. To avoid confusion, it is necessary to note that the applicants’ advisers made a number of submissions to the Tribunal, providing letters and documents in support of the applicants’ claims. Prior to the submissions referred to above, the advisers had written to the Tribunal by letter dated 17 October 2006 (CB 165):

   “We refer to our client’s application for review presently before the RRT.

   Please find enclosed a facsimile of a letter from the Nadi Police Station, Fiji [“the Nadi police letter”], stating that during 1998 and 1999 [the applicant husband] had informed the police on several occasions of personal threats made to him and life-threatening calls to himself and his family.  The letter confirms that [the applicant husband] informed the police that the calls demanded he depart his land and also threatened the sexual assault of his wife.  We note that the police made investigations but no individual was arrested, which led to [the applicant husband] and his family feeling insecure in Nadi.

   We note that the police were of the opinion that the threats may continue, should [the applicant husband] return to Nadi again.

   It is submitted that a letter from the Nadi Police Station confirms the truth of the applicant’s claims.  The issue is therefore whether or not there is effective protection for the applicant and his family.  In the circumstances, given that the police have been unable to arrest the perpetrators, there is not adequate state protection.  We note that, in a Fijian context, the police service continues to be under-resourced and the policing standards brought into line with international standards…”

   A copy of the actual letter is not included in the Court Book, although its terms are reproduced in the Tribunal’s decision record under the general heading of “Claims and Evidence” in the paragraph commencing “The letter from the Nadi Police Stations is dated 12 September 2006 and states” (CB 188.8).

4. The facts relevant to understanding the contents of this complaint are:

   1)17 October 2006 – letter from the applicants’ advisers making reference to the Nadi police letter (sent via facsimile: CB 165).

   2)17 October 2006 – the Tribunal hearing (CB 185.4).

   3)23 October 2006 – the date of the Southern police letter (CB 172).

   4)30 October 2006 – covering letter from applicants’ advisers (CB 169) enclosing three letters in support of the applicants’ claims, including the Southern police letter.

5. It is clear therefore that when setting out the applicants’ “Claims and Evidence” at CB 188.5, the Tribunal recorded the adviser’s earlier letter of 17 October 2006 and then the Nadi police letter.

6. The Tribunal noted in its decision record that at the hearing it had stated that it had “accepted the validity of the police letter tendered (in context, this plainly is a reference to the earlier police letter) and asked why they could not relocate to Suva and live safely there” (CB 189.4). 

7. The applicants and their representative sought time to make further submissions “with respect to the reasonableness of relocation” (CB 189.7).  The transcript of the hearing reveals that the issue of relocation was discussed at the hearing (see T 7 from question 39 to T 9.2) and confirms the Tribunal’s account of what occurred at the hearing in this regard.  I note also at T 23.5 the issue of making further submissions in relation to the issue of relocation.

8. Following the hearing, the applicants’ advisers wrote to the Tribunal by letter dated 30 October 2006 enclosing:

   1)A letter from the applicant husband asserting his active membership in Fiji and Australia of relevant Hindu organisations (CB 170).

   2)A letter from the President of a Hindu organisation in Fiji (CB 171).

   3)The Southern police letter (CB 172).

9. When setting out the claims and evidence before it in its decision record the Tribunal relevantly noted (at CB 189.8) that “the applicant” wrote to it “on 31 October 2006” (where the date on the letter is 27 October 2006, the reference is plainly to the date of the adviser’s covering letter) and the letter from the President of the Hindu organisation.  There is however no specific mention of the Southern police letter.

10. In its findings and reasons the Tribunal accepted that Indo-Fijians had been targeted in the past, that the applicants “may again be targeted by local Fijians” who were agitating for the return of land “and in light of the [plainly, in context, the Nadi police letter],” it accepted that the applicants “may well have to relocate to Suva to distance themselves from these local individuals” (CB 195).  However, it found that the applicant husband’s claim that these individuals, who had a dispute over land, would pursue the applicants to Suva after some seven years, was “far-fetched,” and that in all the applicants’ circumstances, it would be reasonable for the applicants to relocate to Suva.

11. The applicants contend that the Tribunal’s failure to take into account the Southern police letter is a failure to take into account a relevant consideration and an aspect of the applicant’s claims.  Mr Dobbie submitted that this letter was a piece of evidence but that it was also an integer of the applicants’ claims. 

12. The submission in support was that the applicants had claimed to fear harm from local persons in their home area of Nadi and that they had submitted the earlier Nadi police letter which supported their claims to fear harm. Further, that in a covering letter, the applicants’ advisers submitted that in the circumstances, there was not adequate state protection available to the applicants. The Tribunal noted this in its decision record (at CB 188). At the hearing the Tribunal stated (at CB 189.4) that “it accepted the validity of the police letter tendered and asked why they felt they could not relocate to Suva and live safely there.” Following this, the applicants sought time to make further submissions “with respect to the reasonableness of relocation” (CB 189.7).

13. Mr Dobbie referred to the subsequent submission by the advisers which enclosed three letters which he said were relevant to this issue, including the Southern police letter, which specifically made reference to the situation in Suva and asserted that the police could not “assure” that the applicant would “receive sufficient protection for his or his family’s lives upon returning to Fiji” (“be it Suva or any other district in Fiji”).

14. The submission was that the Tribunal made no reference to this letter in its decision record, even though it made reference to the other two letters which had been enclosed with the post-hearing submission (CB 189.8).  Further, he submitted that in coming to its finding that it was reasonable for the applicants to relocate to Suva, the Tribunal, in its analysis (“Findings and Reasons”) made specific reference to the first police letter concerning the situation in Nadi, but made no reference whatsoever to the “second” police letter in finding that the applicants could reasonably relocate to Suva.

15. Mr Dobbie relied on the following authorities in support of this ground:

    1)Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 (Bhardwaj)

    a)per Callinan J at [163]:

    “… If one thing is abundantly clear, it is that the Tribunal must, if an application has properly been made as it was here, review the Minister’s decision.  This means that the Tribunal must exercise the jurisdiction of reviewing the Minister’s decision: that is to say, it must make a decision on the application and any documents properly submitted by the applicant, with, as part of, or relevant to it.  To fail, or  refuse to receive and consider such a document, and to make a decision without regard to it, is a failure to exercise jurisdiction.  This is more than a failure to give a party a hearing.  It is to proceed on a false basis, that such a document simply does not exist or has not been communicated to the Tribunal.  The Tribunal would in these circumstances no more be exercising its jurisdiction than a court would be deciding a case in favour of a defendant without looking at the plaintiff’s initiating document and pleading, or even knowing that they had been filed in the registry of the court.” [Emphasis in original; references omitted] 

    (The document in question was an application for adjournment which was not brought to the Tribunal’s attention.)

    b)per Gaudron and Gummow JJ (at [42]):

    “[42] The function of the Tribunal was to conduct a review of the delegate’s decision in accordance with the Act. In particular, the Tribunal was required to give Mr Bhardwaj an opportunity to attend the hearing, to give evidence and put argument. And it is implicit from the terms of s.368(1) detailing the matters to be recorded in the written statement embodying a decision that the Tribunal was to reach a decision only after considering the evidence and the argument advanced against the cancellation of Mr Bhardwaj’s visa.

    [43] The failure of the Tribunal to give Mr Bhardwaj a reasonable opportunity to present evidence and argument had the consequence that it did not reach a decision after considering evidence and argument against the cancellation of his visa. That being so, it follows that the Tribunal did not conduct a review as required by the Act and the September decision was, thus, not a ‘decision on review’ for the purposes of ss.367 and 368 of the Act.”

    2)Coal and Allied Operations Pty Ltd v Australian Industrial Relations commission and Ors [2000] HCA 47; (2000) 203 CLR 194 (“Coal and Allied Operations”) per Gleeson CJ, Gaudron and Hayne JJ at [28]:

    “A decision under that sub-section [s.170MW(3)(b) of the Workplace Relations Act 1996] would involve appealable error if, for example, regard was had to irrelevant material, relevant material was disregarded, or, although there was some factual material by reference to which the decision-maker might be satisfied, he or she mistook those facts.”

    3)SZGKX v Minister for Immigration and Citizenship [2007] FCA 461 (“SZGKX”), a matter on appeal from this Court.  In that case, the Court, per Conti J, saw the relevant issue as (at [23]):

    “However, the issue remains as to the adequacy or otherwise of the consideration afforded to the specific evidentiary material.”

    The evidence in question was a newspaper article that supported the applicant’s claims to have been assaulted in circumstances deriving from his claimed profile. 

    At [24]:

    “Counsel for the appellants referred me to NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [212], where Madgwick J found as follows, and with which I expressed substantial agreement:

    There was no independent requirement on the delegate so to check.  Nevertheless, given the potential importance of the letter and the delegate’s fleeting, uncritical references to it in his reasons, in my view the inference should be drawn that the delegate did not actually consider what significance and weight it deserved.  A decision-maker cannot be said to "have regard" to all of the information to hand, when he or she is under a statutory obligation to do so, without at least really and genuinely giving it consideration. As Sackville J noticed in Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152 at [58], a "decision-maker may be aware of information without paying any attention to it or giving it any consideration". In my opinion, it would be very surprising if the delegate had genuinely paid attention to the letter and given it genuine consideration – had in Black CJ’s phrase in Tickner v Chapman (1995) 57 FCR 451 at 462 engaged in "an active intellectual process" in relation to the letter – yet remained silent about such consideration in the reasons he gave. I am satisfied he did not do so.’”

    At [26]:

    “For reasons apparent from what I have already pointed out or else determined, I have reached the view, after giving the issues arising at the instance of the appellants and the Minister much thought, that there is sufficient basis for the operation here of those principles adversely to the Minister’s case, in the sense of failure to deal with a matter of relevance sufficiently or adequately in the particular circumstances of this case.”

    At [32]:

    “In my opinion, however, the omission to take into account relevant material corroborating the appellant’s claims of politically motivated attacks reflected an extent of confinement in the requisite width of approach required in the light of those facts and circumstances, such as to evince constructive error.  Put another way, the Tribunal was not entitled in the circumstances to withhold from closer consideration and evaluation material which may well have given rise to conclusions favourable to the appellant husband’s claim.”

1. Mr Dobbie’s submission was that His Honour in SZGKX was referring to material corroborating the applicant’s claims (in that case the relevant material was a newspaper article) and drew the analogy that in the case before the Court now, the relevant material, the Southern police letter, similarly supported the applicants’ claims in two respects:

   1)That as at the time of the Tribunal’s decision there was ongoing interest in the applicant husband as from those who had previously sought to harm him.  (The local indigenous Fijians in Nadi.)

   2)That he could not be assured of sufficient protection if he were to return anywhere to Fiji. 

2. He emphasised that these were both matters that could have given rise to conclusions favourable to the applicants’ claims.  He relied on the authority of SZGKX that the Tribunal was therefore not entitled to overlook this document.  He submitted that, with reference to Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, per McHugh, Gummow and Hayne JJ at 351 ([82]), a failure to take into account a relevant consideration is a jurisdictional error. The relevant considerations in the case before the Court now were the two issues addressed in the letter, namely the ongoing interest of those seeking to harm the applicant and his family, and the inadequacy of police protection anywhere in Fiji (including in the context of relocation to Suva).

3. Mr Johnson put the Minister’s position as being that the Southern police letter was nothing more than an “item of evidence” which was contrary to the Tribunal’s findings of fact.  He described it as “not a terribly weighty document” and that it was not surprising that the Tribunal did not expressly deal with it. 

4. Mr Johnson’s submission was that in considering the applicants’ claims to have been targeted by local Fijians who were agitating for the return of their land, the Tribunal made two separate findings.  The first was that it was “far-fetched that those in the past who had a dispute over the land occupied by the brother of the applicant husband may now wish to pursue the applicants to Suva after some seven years” (CB 195.9).  The second was that the Tribunal also found that the applicants could reasonably relocate to Suva where effective protection would be available.

5. He further submitted that the Tribunal dealt with the applicants’ fear of persecution for reason of their religion and found that they would be free to pray safely at any other Hindu temples in Suva or wherever they may wish to relocate, and that further, it dealt with the specific claims of the applicant wife that she was subject to sexual threats.  Mr Johnson submitted that, ultimately, in light of the independent evidence available to it, the Tribunal found that should the applicants face harm at the hands of individuals who had harassed them in the past, or from others in Fijian society, they would be able to access protection from Fijian authorities and such protection would not be denied them on a selective or discriminatory basis for a Refugees Convention reason (CB 196.9).

6. He emphasised that the Southern police letter makes reference to the applicant’s family’s “problem with the indigenous Fijians” but does not qualify what the alleged problems are, let alone what they could be, in circumstances where such problems were said to pursue them to Suva.  His submission was that the Tribunal was not obliged in the circumstances to expressly deal with the letter.

7. Mr Johnson’s submission was that the Tribunal was not required to “expressly grapple” with the letter.  He noted what was quoted as paragraph [24] of SZGKX from NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [212], per Madgwick J:

   “There was no independent requirement on the delegate so to check.  Nevertheless, given the potential importance of the letter and the delegate’s fleeting, uncritical references to it in his reasons, in my view the inference should be drawn that the delegate did not actually consider what significance and weight it deserved.”

8. In the context of the applicants’ reliance now on what is said to be the Tribunal’s failure to refer to the Southern police letter in its decision record, Mr Johnson submitted that s.430 of the Act, which deals with the Tribunal’s obligation to prepare a written statement of its decision, and what to set out in that decision, does not require the Tribunal to refer to evidence contrary to its findings. See Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407, per McHugh J. In particular:

   “[64] …In Addo [Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 1740 at [24] and [31]] the Court said:

   Section 430(1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made. Accordingly, there was no failure to comply with s 430(1) of the Act.

   …

   It is not necessary, in order to comply with s 430(1), for the tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made.

   [65]  In my opinion, this passage correctly sets out the effect of s 430(1)(c) and (d).  However, the obligation to set out ‘the reasons for the decision’ (s 430(1)(b)) will often require the tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings.  Whenever rejection of evidence is one of the reasons for the decision, the tribunal must set that out as one of its reasons.  But that said, it is not necessary for the tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal.”

9. Further to the above, while there may be cases where the Court can conclude on the balance of probabilities that some material before the Tribunal was overlooked or not examined at all, there are many other cases where it is simply not known whether a particular piece of evidence was examined at all, and in these latter circumstances, the applicant does not discharge his onus before the Court.  Mr Johnson emphasised that the conclusion that a Tribunal has not even looked at a particular document (that is, a particular piece of evidence) is not one to be lightly drawn. 

10. With reference to the evidence before the Court now, the submission was that it is clear that the Tribunal did receive the post-hearing letter from the advisers of 31 October 2006 to which the Southern police letter was attached.  That the Tribunal received the adviser’s letter can be inferred from the Tribunal’s reference in its decision record to the applicant having written (“on 31 October 2006” (CB 189.8), the dated receipt of the adviser’s letter and the three letters enclosed)) to it.  The Tribunal’s summary of what was in that letter is clearly a summary of what was in the first of the enclosures – that is, the applicants’ claims to have been a strong supporter and active member of a local religious organisation (CB 189.8 and CB 174).  The Tribunal also noted that the applicant “had forwarded a letter from the president of a Hindu organisation in Fiji.”  Again, this reference to the subject matter was clearly a reference to the second enclosed letter (CB 189.9 and CB 175). 

11. Mr Johnson’s submission was that the third enclosed letter (the Southern police letter) could not be seen as an integer of the applicants’ claims, but was a piece of evidence, at most, in support of their claim to fear harm from local people who would pursue the applicant husband and his family to Suva, and that they could not, therefore, reasonably relocate there.  In other words, the claim, being the fear of harm from local people in Nadi, was a claim pressed by the applicant husband at the hearing before the Tribunal in circumstances where he said that he could not safely relocate to Suva because such people would pursue him there.  The letter was evidence that went to that claim. 

12. His submission was that the letter did not raise some claim, or an integer of claim, which was not considered by the Tribunal.  The Tribunal considered and rejected the claim that those local individuals from whom the applicant feared harm in the past would continue to pursue the applicants to Suva after some seven years, and also found that, given independent country information, which it preferred, they would be able to access protection from the Fijian authorities in Suva.  Nor did the letter itself raise any new claim, or integer of a claim.

13. In relation to the authorities raised by the applicant, I agree with Mr Johnson that Bhardwaj was, unlike the present case, concerned with a failure by the relevant decision maker to exercise relevant jurisdiction in a manner that was required pursuant to the relevant legislation as it stood at the time.  I agree with Mr Johnson that Bhardwaj was not concerned with the issue before the Court now, that is, the distinction between evidence and a claim or an integer of a claim.  It was concerned with the failure to give Mr Bhardwaj a reasonable opportunity to present evidence and argument in circumstances where an application for an adjournment was not brought to the attention of the relevant decision maker to enable the exercise of jurisdiction to grant, or refuse, the adjournment (Bhardwaj at [164]). Further, Coal and AlliedOperations is plainly a case dealing with s.170MW(3)(b) of the Workplace Relations Act 1996.  I agree with Mr Johnson, it is not concerned with the issue at hand.

14. Ultimately, I did not understand Mr Dobbie to challenge the respondent’s position that the Tribunal was not obliged to refer to every item of evidence that was before it.  In addition to what is set out above the respondent also relied on authorities for this proposition including NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [14], WAEE v Minister for Immigration and Multicultural Affairs (2003) 75 ALD 630; [2003] FCAFC 184 (“WAEE”) at [46], Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 593. In any event, I would follow the authorities relied on by the respondent in this regard and find against the applicant on this particular issue.

15. Rather, the complaint was that the letter in question was more than a piece of evidence; it was an integer of a claim such that it was a “relevant consideration,” and the failure to take into account a relevant consideration was jurisdictional error. 

16. The respondent agreed that a failure to take into account a relevant consideration where the suggested “relevant consideration” is an integer required by the legislation to be taken into account, can be jurisdictional error, but distinguished this from a failure to mention or grapple with evidence.  This submission was with reference to Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-41 and Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 (“Paul”) at [79] where Allsop J held:

    "Whatever may be the outer boundaries of relevant and irrelevant considerations at the point of jurisdiction … they do not, in my view, encompass a failure expressly to mention or grapple with part of the competing body of evidence before the Tribunal relevant to a finding made, in circumstances where the elements or integers of the claim for asylum are addressed.”

    Further, in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42], Allsop J again distinguished between a failure to take into account a relevant consideration, or a failure to consider a claim on the one hand, and a failure to consider evidence on the other, and found the latter not to be jurisdictional error.

17. Mr Johnson also submitted that the judgment in SZGKX does not refer to VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104 (“VQAB”) at [25] and [31], which supports the distinction between a failure to take into account a relevant consideration in the sense of a failure to consider a claim, or an integer of a claim on the one hand, and the failure to consider evidence or mention evidence, on the other, and that VQAB points to WAEE at [46]-[47] to that effect.

18. In VQAB (at [25]) the Court also concluded that the failure to make a finding regarding a claim in relation to a passport could not amount to jurisdictional error because there was no claim that being refused a passport amounted to persecution. The claim that the applicant in that case had been refused a passport was merely a piece of evidence to bolster the claim of persecution by reason of the appellant’s political opinion. The Court referred to Allsop J in Paul (at [79]) in which a distinction was drawn between an element or an integer of a claim and a mere piece of evidence. Then at [31] of VQAB:

    “The first ground is singularly uninformative.  The primary judge dealt with the complaint that the Tribunal had not addressed the passport claim correctly, and to the extent that this ground seeks to agitate that point, it is without merit.  In addition to Paul, and the cases cited therein, regard should be had to Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244, Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46]-[47], VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 447, Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 509, and Applicant M31 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 533.”

19. Mr Johnson also relied on MZWBW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94:

    “[26]  In Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 Allsop J said that Minister for Immigration and Multicultural and Indigenous Affairs vYusuf (2001) 206 CLR 231:

    ‘does not stand for the proposition that a relevant consideration has not been taken into account and the decision-maker thereby has failed to embark on or complete his or her jurisdictional task merely because some piece of evidence which the court thinks is relevant in the evidential or probative sense can be seen not to have been weighed or discussed. ‘Relevant’ for this purpose means that the decision-maker is bound by the statute or by law to take this into account.’

    This passage was approved by Cooper and Finkelstein JJ in Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268 at [29].

    [27]  In WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46] a Full Court said:

    ‘It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons.... Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact ... and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason.’”

20. Further, in support of the distinction, Mr Johnson referred to:

    1)Jacobson J in Singh v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1113 (at [22]-[35] and [39]-[42]),

    2)MZXGP v Minister for Immigration and Multicultural Affairs [2006] FCA 1314, per Middleton J at [14]:

    “Failure to deal with a particular piece of evidence is neither a failure to take into account a relevant consideration, nor a failure to deal with a relevant claim.”

    3)Mayadeen v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1522, per Heerey J for the proposition that any failure to deal with the letter in question “would amount to no more than a defect in the fact finding process” and not a jurisdictional error.

21. I cannot see that the Southern police letter (CB 176) can be said to be more than a piece of evidence in support of the claim that the “family’s problem” with local indigenous Fijians would not stop in Nadi and would follow them elsewhere in Fiji and they could not rely on police protection anywhere in Fiji.  The letter makes no new claim, nor does it add an integer to any existing claim.  It is a letter from the local police commander that goes to support the applicants’ claims as already expressed by the applicant husband at the hearing before the Tribunal.  The letter was sent after the hearing specifically, as the adviser’s covering letter states, to confirm what was put to the Tribunal.  The adviser’s letter makes this plain (CB 173.5):

    “3.  Original copy of the letter dated 23 October 2006 from the Divisional Police Commander – Southern – Fiji confirming that the applicant is likely to face similar problems with the indigenous Fijians even if he relocates from Nadi.”

22. If the letter could be characterised as a claim or an integer of a claim then the failure to specifcally mention the letter in the Tribunal’s decision record would give rise to the requirement to consider whether in all the circumstances the Tribunal failed to deal with a claim, or part of a claim, such that it may lead to jurisdictional error on its part.  But in my view, for the reasons set out in greater detail above, the letter does not rise above a piece of evidence in support of a claim already put by the applicants. 

23. I accept Mr Johnson’s submission, given the weight of authority, that the Tribunal was not bound to refer to all of the evidence before it, nor to grapple with any particular evidence that was contrary to the findings that it made.  Nor, noting Mr Johnson’s reference to Karras v Minister for Immigration and Multicultural Affairs (1998) 56 ALD 167 at 173 (“the omission to refer to a particular matter or piece of evidence does not require any concluson that it has been overlooked”), can it be said, on balance, that the Tribunal inadvertently overlooked this piece of evidence.

24. In this latter regard, it is important to note the circumstances surrounding the provision of this letter to the Tribunal.  Both the Tribunal’s account of what occurred at the hearing (CB 89), and the transcript of the hearing provided by the applicants show that the Tribunal told the applicants (the applicant husband and the appliacnt wife) at the hearing that it accepted the validity of the Nadi police letter (CB 165, CB 188.8 and CB 195.8).  In light of the letter the Tribunal accepted that the applicants “may well have to relocate to Suva.”  At the hearing, it posed the question of the applicants’ relocating to Suva and living safely there.  The applicant husband provided a number of reasons as to why the family could not relocate and, relevantly, the applicant husband stated that those who had threatened harm in the past might “trace them” to Suva and threaten them again.

25. The Tribunal raised the issue of police protection in Suva and raised the question as to why those who had harmed them in the past (given the reasons as they were stated arose from a dispute about land) would maintain an interest in them.  A reading of the transcript (T 22) shows that it was the applicants’ adviser who noted that the Tribunal had raised the issue of relocation and advised that he would seek further instructions from the applicants to address this issue (see also T 23).  The Tribunal agreed to the adviser having a further period of time to obtain instructions to provide anything further to the Tribunal on the reasonableness of relocation to Suva (see CB 23.9).  The applicants’ adviser asked for two weeks within which to provide anything further to the Tribunal, and the Tribunal readily agreed (T 24.8):

    “TRIBUNAL

    Q130.  Yes.  That’s O.K.  It’s better to get a good solution than a hurried solution.”

1. What the adviser subsequently submitted under cover of the letter dated 30 October 2006 (noted as being received on 31 October 2006) (CB 69) was, of course, already referred to above.  In its decision record the Tribunal makes reference to the two other letters and not to the third letter.  Clearly, the Tribunal did receive the covering letter from the advisers.  Its specific reference to the two enclosed letters is, in my view, sufficient to show that the Southern police letter was before the Tribunal. 

2. In resolving the issue under consideration it is important to note the different subject matter in each of the letters.  The first two letters provided at this time were not related to the issue in respect of which the Tribunal had agreed to wait for further material.  That is, the issue of the reasonableness of relocation to Suva, and the adequacy of protection available.

3. The first letter (CB 174) relates to the applicant husband’s active membership of a Hindu society in New South Wales and Fiji.  It makes no reference whatsoever to the issue of the reasonableness of relocation to Suva, and the adequacy of protection there.  The second letter (CB 175) was from the President of a Hindu association in Nadi and makes reference to the applicant husband’s active participation in the affairs of the association in Nadi and the difficulties that association had with negotiations over the use of land in that area. 

4. Again, there is nothing relevant to the issue of relocation to Suva or the adequacy of protection there.  In my view, it is not surprising therefore that the Tribunal made specific reference to those two letters in its decision record.  Neither letter was addressed to the issue in relation to which the Tribunal had agreed to provide additional time to the applicants.  But both letters raised additional aspects and dimensions (integers) of the applicants’ general claims.  That is, their active participation in Hindu affairs in Nadi, and the difficulties experienced by the Hindu association, in which the applicant husband and wife “were active,” in a similar dispute about land usage in Nadi. 

5. In these circumstances, the omission to specifically note the Southern police letter can be explained in that nothing new by way of a claim, or an integer of a claim, was raised in it.  In its recitation of the applicants’ claims and evidence it was necessary therefore for the Tribunal to specifically note the new aspect of the applicants’ claims raised in those two letters.

6. When it came to its findings and reasons the Tribunal did not explicitly refer to any of the three letters.  It did not need to do so.  The obligation on it (as referred to above) in setting out its reasons for its decision was to “give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence” (Durairajasingham at [67]).

7. The important issue, however, is that the Tribunal directly dealt with the applicants’ claims and dealt with the issue of whether it was reasonable for the applicants to relocate to Suva.  In this regard, having accepted that the applicants may well have had to relocate to Suva, the Tribunal made very clear findings that it was “far-fetched” that those who had a dispute, in the past, over land occupied by the brother of the applicant husband, might now want to pursue the applicants to Suva after some seven years.

8. The Tribunal considered a range of circumstances relating to the applicants and found that it would be reasonable for them to relocate to Suva, and found that, in any event, they would be able to access protection from Fijian authorities in Suva.  Without specific reference to the letter, the Tribunal dealt with all of the issues raised in the Southern police letter.  In all the circumstances, the Tribunal found that the applicant husband’s “family’s problem” (in the context of the applicants’ claims this could only mean the dispute over land with local indigenous Fijians in Nadi) would not go beyond Nadi.  Further, the applicant husband’s “problem with the indigenous Fijians” would not follow him to Suva, and that, in any event, independent information available to it, which the Tribunal accepted, revealed that the applicants would find sufficient protection from the police in Suva.

9. I should also just note that I accept Mr Johnson’s submissions in relation to SZGKX and as to whether I should follow that case in light of the weight of authority emphasising the distinction between not mentioning a piece of evidence in a decision record, and the failure to take into account a claim, or an integer of a claim.  I note further that SZGKX was, with respect, confined to the circumstances arising in that case ([31]):

   “The present claim to refugee status bears a somewhat contextual uniqueness.”

   And [32]:

   “It can scarcely be gainsaid that both the Tribunal member and the Federal Magistrate below did give close consideration to the significance or otherwise to be accorded to the facts and circumstances of the case. In my opinion, however, the omission to take into account relevant material corroborating the appellant’s claims of politically motivated attacks reflected an extent of confinement in the requisite width of approach required in the light of those facts and circumstances, such as to evince constructive error. Put another way, the Tribunal was not entitled in the circumstances to withhold from closer consideration and evaluation material which may well have given rise to conclusions favourable to the appellant husband’s claim.”

10. In the case before the Court now, I cannot see that any such “contextual uniqueness” arises from the applicants’ claims.  That the applicants feared harm in Suva from persons involved in a land dispute with the applicant husband’s brother seven years earlier in Nadi, that such persons would pursue the applicants seven years later to Nadi for no apparent reason other than the proferred difference between indigenous Fijians and Indo-Fijians, and that police protection would not be available in Suva in these circumstances were clearly articulated by the Tribunal to be the relevant circumstances in which pursuit of the applicants to Suva was “far-fetched” and protection in any event would be available.  With respect, this does not amount to the “contextual uniqueness” facing the Court in SZGKX.  In all, therefore, this ground, bearing the weight of authority in mind, is not made out.

Ground Two – failure to comply with s.424A of the Act

1. The applicants’ second ground is that the Tribunal failed to comply with its obligations pursuant to s.424A of the Act in that it found, as part of the reason for its decision, that the applicants would be able to receive effective state protection because the commander of the Fijian police force was an Australian. Further, that this was information about a person, and not information provided by the applicants to the Tribunal, or adopted by them before the Tribunal, such that the exceptions contained in s.424A(3) of the Act would operate to relieve the Tribunal of its obligation pursuant to s.424A(1) of the Act.

2. Mr Dobbie submitted that the Tribunal’s reliance on this information was “not a mere passing observation by the Tribunal.”  Mr Dobbie referred to the transcript of the hearing before the Tribunal, and in particular, to “question 54” (see T 9) and “question 67” (see T 12), where the Tribunal made three references to the Commissioner for Police in Fiji being an Australian and that, as such, the capacity of the Fiji Police to respond to crime had been strengthened.  Mr Dobbie submitted that this was clearly relevant to the Tribunal’s finding and was a part of the reason for the Tribunal’s decision that, “the police, under an Australian commander, have had their professionalism considerably enhanced and are providing assistance and protection to Fijian citizens on a non-discriminatory basis” (CB 196.3).  The fact that an Australian commander was now involved with the Fiji Police was a factor in the Tribunal’s finding that effective protection would be available to the applicants. 

3. Mr Dobbie relied on what was said by the Full Court in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 (“SZEEU”), per Moore J at 222 ([9]), per Weinberg J at 251-252 ([153]-[154]), and per Allsop J at 257 ([193]) and 259 ([199]), that is, that the Tribunal’s failure to put this information to the applicants in writing and invite their comments was jurisdictional error.

4. Mr Johnson submitted that while the particulars in the application refer to the Tribunal not having provided an opportunity to the applicants to comment upon information to the effect that the commander of the Fijian Police forces was an Australian and that under his command the Fijian Police Force had its professionalism increased, the applicants’ submissions confine the argument to the information that the Commander of the Fijian Police Force (“Mr David Hughes”), is an Australian.

5. Mr Johnson’s submissions specifically in relation to this issue are:

   1)That the transcript of the hearing cannot be used as a substitute for the Tribunal’s reasons and, in a submission with which I agree, that it is not uncommon for the Tribunal to discuss matters during a hearing which ultimately form no part of the reason for decision.

   2)That a separate and independent basis, in any event, exists to support the Tribunal’s affirmation of the delegate’s decision. That is, a basis separate to the finding that effective protection from a police force commanded by an Australian, would ensure adequate protection to the applicants. Mr Johnson did not concede that the Tribunal had breached its obligations pursuant to s.424A of the Act, but submitted that in any event the fact that the Fiji Police Force had an Australian commander was not a part of the separate and independent basis on which the Tribunal found that the applicants did not have a real chance of persecution were they to return to Fiji.

   3)The applicant husband, the applicant wife and their family, claimed to fear harm from local indigenous Fijians in Nadi who in the past had engaged in a dispute over the land owned by the applicant husband’s brother.  The Tribunal found that in relation to this claim, even if the Tribunal were to accept that they may be targeted by these local Fijians if they were to return to Nadi, they would be able to safely relocate to Suva and that it would be reasonable for them to do so in all the circumstances.  The Tribunal found that it was “far-fetched” that those in the past who had a dispute over the land occupied by the applicant husband’s brother might now wish to pursue the applicants to Suva after some seven years had passed.

6. I agree with Mr Johnson that this is a separate and independent basis for the Tribunal’s dealing with the applicants’ claim to fear harm from local indigenous Fijians in Nadi. Further, I also agree that the applicant wife’s claims that she had been subjected to sexual threats, and that she feared sexual violence against her as a woman, were similarly dealt with without regard to the Fijian Police Force having an Australian commander (see CB 196.3 to CB 196.8).

7. But in any event, I do not agree with Mr Dobbie’s submission that the Tribunal’s reference to the Police having an Australian commander was information not caught by the exception in s.424A(3)(a) and therefore information which came within the obligation set out in s.424A(1). While it is clear that the Tribunal made reference to the name of the police commander in its discussions with the applicants at the hearing, in my view the Tribunal’s finding, as derived from its analysis and reasoning, was that the Fijian Police “have had their professionalism considerably enhanced” and that this had occurred under an Australian commander (CB 196.3).

8. The Tribunal addressed the applicants’ claims as Indo-Fijians. It was the information from independent evidence before it that indicated that ethnic relations in Fiji in general had improved considerably in recent years, and that the police had had their professionalism considerably enhanced and were providing assistance and protection to Fijian citizens on a non-discriminatory basis, that was the basis for the Tribunal’s reasoning. In the circumstances of the Tribunal’s reasoning, and to the extent that this can also be informed by the discussion at the hearing, it was not that a particular person (Mr Hughes) was the commander of the Fiji Police, but that the Fiji Police had an Australian commander that was significant. This distinction was plainly emphasised by the Tribunal itself in its “Findings and Reasons” with the reference to “an Australian commander,” not to a particular person as being the commander. In terms of s.424A(3)(a) of the Act, this is not information about the applicant (naturally) or “another person.” It is information just about a class of persons of which … the other person was a member.” It therefore falls within the exception in s.424A(3)(a) from the obligations in s.424A(1) of the Act.

9. I should also just note (with reference to Mr Dobbie’s submission – see [61] above) that since the hearing of this matter, the High Court has handed down its judgment in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (“SZBYR”).  The High Court did not consider whether the assumption made by the parties in that case as to the correctness of the Full Federal Court decisions in SZEEU  and in Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 (“Al Shamry”) were correct (see SZBYR at [16]). But I do not see, with respect, what the High Court subsequently said (particularly at [18] to [19]) is of assistance in the present case. The circumstances of that case involved inconsistencies in the information provided to the Minister’s Department and information arising from the hearing before the Tribunal. This is not the situation before the Court in this matter.

10. In all, however, this ground does not succeed. The information relied upon by the Tribunal as a part of the reason for its decision, and in relation to one part of the applicants’ claims, was that independent evidence indicated that ethnic relations in Fiji had improved and that the police had had their professionalism considerably enhanced under an Australian commander, and were providing assistance and protection to Fijian citizens on a non-discriminatory basis. I do not see such information as falling outside the exception contained in s.424A(3)(a) of the Act, and there is no obligation to invite the applicants to comment on country information not specifically about the applicant, or indeed, another person (see QAAC v Refugee Review Tribunal [2005] FCAFC 92 at [20]-[30], Minister for Immigration and Multicultural Affairsv NAMW (2004) 140 FCR 572 at [68]-[71] and [138], and WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131 at [27]). Further, and in any event, the Tribunal’s decision to affirm the delegate’s decision under review is, in my view, independently sustained by its very clear finding that those from whom the applicants feared harm would not pursue them to Suva were they to relocate there, that they were able to relocate to Suva in all the circumstances, and that it would be reasonable for them to do so. This ground does not succeed.

Ground Three – failure to accord natural justice

1. The applicants’ third ground in the application before the Court states that the Tribunal failed to accord them natural justice with reference to two particulars, the second of which, Mr Dobbie submitted, the applicant did not press.  What the applicants pressed was that, even in the event that it could be said that the Tribunal did take into account the Southern police letter, the Tribunal had an obligation to put to the applicants that it was going to reject the content of that letter and give them an opportunity to respond.

2. The parties agreed that this is not a matter to which s.422B of the Act applies which would have the consequence of making the matters set out in Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule (absent bias).

3. Mr Dobbie submitted (with reference to Kioa v West (1985) 159 CLR 550, per Mason J at 585, and Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 (“Applicant VEAL”) per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ at 95) that the Tribunal, in accordance with its obligations pursuant to procedural fairness at general law, should have put to the applicants that it was going to reject the contents of the Southern police letter and given them an opportunity to respond.

4. He submitted that the contents of the “first” letter from the police (the Nadi police letter) had been accepted by the Tribunal (the Tribunal told the applicants this at the hearing).  In the circumstances the applicants would have had an expectation that the contents of the “second” letter (the Southern police letter) would also have been accepted.  Mr Dobbie’s submission was that the Tribunal’s rejection of the contents of that letter, therefore, should have been put to the applicants to give them an opportunity to comment.

5. Mr Johnson submitted that the Tribunal had no such obligation.  He submitted that in the case before the Court now it was for the applicants to put forward any such material as they wanted the Tribunal to take into account, and it was for the Tribunal to be satisfied, or not, on what was put before it.

6. I agree with Mr Dobbie that the Tribunal was obliged to adopt fair procedures in considering the application for review.  In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 (“SZBEL”), the High Court (with reference to Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576) said (at [32]):

   “In Alphaone the Full Court rightly said:

   ‘It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to given the opportunity of being heard.  That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material. [emphasis added]’”

7. In the circumstances of this case, however, I cannot see that the applicants were denied such an opportunity, or that the Tribunal failed in its obligations in this regard.  A plain reading of the transcript of the hearing provided by the applicants, and the Tribunal’s own record of what occurred at the hearing, reveal that the Tribunal raised and discussed each of the determinative issues in the disposition of the applicants’ claims:

   1)T 8.7: the issue as to why those local persons from whom the applicants feared harm would come all the way to Suva to look for them and that police protection was, in any event, available (also at T 8.9).

   2)T 9: the improvements in policing capacities in Fiji, the reform of the police service, and avenues of complaint available to those aggrieved by police action.

   3)T 10.3: the Tribunal emphasised to the applicants that the test that it was required to apply was a real chance of persecution.

   4)T 11.2: the level of protection that can be expected in the context of claims of harm from ethnic Fijians based on the applicants’ Indo-Fijian ethnicity.

   5)T 15 to T 16: the Tribunal noted that it would need to address whether the applicants would not get protection in Suva because of their Indo-Fijian ethnicity, or in the case of the applicant wife, because she was a woman, or because of their religion, and put to the applicants that:

   “What I have to think in terms of this is whether there is a real chance that you will suffer serious harm if you go back.” (T 16.3)

   And further:

   “That it may well mean that you have to relocate to Suva, but I have to then find, if I was to find for you, I’d have to decide that you wouldn’t get protection in Suva because of your race or religion or because you were a woman.  And all I’m saying to you at present is that the evidence is that it isn’t perfect but there’s certainly a much better situation that it was when you left Fiji.” (Errors in original)

   6)T 16.5: the applicants were invited to comment on what the Tribunal had said.

   7)T 22 (towards the end of the hearing): it was the applicants’ adviser also present at the hearing, who raised the issue of “adequate protection.”  

   8)T 23.4: the Tribunal confirmed that it had no problem with the “first” police letter, and that it accepted “that relocation would probably in the light of that be necessary.”  It was at that point that the adviser sought to obtain instructions as to “whether relocation [was] a feasible option for them.”  The Tribunal readily agreed to the applicants’ adviser being given time to do this.

1. The issues that were determinative in the affirming of the decision under review were that relocation to Suva was available to the applicants in circumstances where it was “far-fetched” that those who had threatened harm in the past would, seven years later, seek to pursue the applicants to Suva, and that it was reasonable in all the circumstances for the applicants to so relocate.  Separately and further, that adequate protection would be available to them from the authorities in Suva.  In relation specifically to the applicant wife who was subjected to sexual threats and feared violence as a woman, the Tribunal similarly found that relocation to Suva was reasonable, and that any fears that she had with regard to being a victim of sexual assault and being denied the protection of the authorities were not well-founded.

2. All these issues were raised with the applicants at the hearing by the Tribunal.  It is important to note that the Southern police letter was provided by the applicants themselves (through their adviser) in response to the Tribunal having identified relocation to Suva as one of the issues that it considered was relevant to the determination of the applicants’ application.  I agree with Mr Johnson that the Tribunal was not further obliged to give a running commentary on this particular piece of evidence or to tell the applicants its view of this particular evidence in advance of any final decision being made (see SZBEL at [47]-[48], Re Ruddock; Ex Parte Applicant S154/2002 (2003) 201 ALR 437 at [54] and [57]-[58], Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 576, Kioa at 587 and 588, and Alphaone at 592).

3. I do not see the relevant authorities as providing for a never ending loop of opportunities to applicants to comment on the adverse view of evidence provided by applicants themselves.  I should note that to the extent that Mr Dobbie, in submissions, relied on Applicant VEAL and to the High Court’s reference to the Tribunal in that case giving no weight to a letter relevant to the applicant’s claims, this situation can be plainly distinguished from what is before the Court now.  The letter in Applicant VEAL was a “dob-in” letter, that is, a letter from a third party, the existence of which was not known to the applicants.  In relation to procedural fairness at general law, the High Court took the view that because this letter was from a third person and was credible, relevant and significant, it had to be put to the applicant for comment.  This circumstance does not apply in this case.  It was the applicants themselves who had put the letter to the Tribunal in the full knowledge that the issue of relocation to Suva, and separately, the issue of the availability of police protection in Suva, were issues relevant and critical to the Tribunal’s consideration.

4. In all, therefore, I cannot see that the Tribunal failed in its procedural fairness obligations at general law in relation to the issue of, and to information about, the availability and reasonableness of relocation to Suva, and the availability of effective protection there.  This ground is also not made out.

Conclusion

1. In all, the grounds put forward by the applicants, with the assistance of legal advice, do not reveal jurisdictional error in the Tribunal’s decision.  Accordingly, this application is dismissed.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  A Douglas-Baker

Date:  12 October 2007