SZFPN v Minister for Immigration
[2005] FMCA 1279
•22 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFPN v MINISTER FOR IMMIGRATION | [2005] FMCA 1279 |
| MIGRATION – Application for review of a decision of the Refugee Review Tribunal – jurisdiction of the Court – whether the Tribunal correctly addressed the question of whether the applicant faced past and future persecution – whether the Tribunal failed to apply the real chance test – whether the Tribunal failed to consider issues of state protection – whether the Tribunal used adverse critical information against the applicant before and during the Tribunal hearing – whether the Tribunal’s reasoning could be characterised as irrational or illogical – whether the Tribunal provided adequate and proper reasons for its decision – whether the Tribunal failed to consider all of the applicant’s claims – no jurisdictional error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.430, 474, 483, 483A |
SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601
SZAWW & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 479
SZCYW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 878
S1781 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 1038
Chen Shi Hai v Minister for Immigration & Multicultural & Indigenous Affairs (2000) 201 CLR 293
Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74
Minister for Immigration & Multicultural & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration & Multicultural & Indigenous Affairs v W64/01A [2003] FCAFC 12
Minister for Immigration & Multicultural & Indigenous Affairs v Khawar (2002) 210 CLR 1
Australian Broadcasting Television v Bond (1990) 170 CLR 321
NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235
Epeabaka v Minister for Immigration (1999) 84 FCR 411
Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 Re Minister for Immigration and Multicultural Affairs: Ex parte S20/2002 (2003) 198 ALR 59
Minister for Immigration Multicultural and Indigenous Affairs v Rajamanikkam (2002) 190 ALR 402
Public Service Board of NSW v Osmond (1986) 159 CLR 656; 63 ALR 559 Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 NAFT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 254
| Applicant: | SZFPN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 236 of 2005 |
| Judgment of: | Pascoe CFM |
| Hearing date: | 31 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 22 September 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Ms Morgan |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That the Refugee Review Tribunal be joined as a party to these proceedings.
That the application be dismissed.
That the applicant pay the respondent’s costs fixed in the sum of $6000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 236 OF 2005
| SZFPN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
In this matter the applicant seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 14 March 1996. By that decision the Tribunal found that the applicant was not entitled to a protection visa. The Tribunal’s decision resulted from an application to review a decision of a delegate of the respondent made on 11 October 1994, refusing the applicant’s application for a protection visa.
In accordance with the recent decision of the High Court in SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24, I join the Tribunal as a party to these proceedings.
Relevant background
The applicant is a citizen of Fiji and is of Indian ethnicity. He arrived in Australia on 15 August 1993 on a visitor visa. His most recent Temporary Entry Permit expired on 15 February 1994.
The applicant sought protection as a refugee by lodging an application on 17 February 1994 with the then Department of Immigration and Ethnic Affairs (“the Department”). In his application to the Department the applicant claimed to be a refugee on the basis of his Indian ethnicity and political opinion as a supporter of the Fiji Labour Party (FLP).
On 31 October 1994 the applicant sought review of the delegate’s decision by the Tribunal.
On 2 February 1996 the applicant attended a Tribunal hearing with the assistance of his migration agent and a Hindi interpreter.
The applicant was previously a party to the Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601 class action in the High Court of Australia. That proceeding, insofar as it concerned the applicant, was remitted to the Federal Court of Australia by order of Gaudron J made on 25 November 2002. That application was subsequently dismissed by Emmett J on 20 February 2004.
The legislative framework
The Federal Magistrates Court shares concurrent jurisdiction with the Federal Court under s.483A of the Migration Act 1958 (Cth) (“the Act”) which was inserted by Schedule 3, Part 1, Item 16 of the Jurisdiction of the Federal Magistrates Service Legislation Amendment Act 2001 (Cth). It applies, by virtue of Schedule 3, Part 2, Item 18 of that Act with respect to applications brought under s.477 of the Act made after its commencement. It commenced on 2 October 2001. It is clear that the present application was commenced after that date. Although Schedule 3, Part 2, Item 18 refers to applications brought under s.477, which in turn refers to “privative clause decisions”, the provision has been held to confer jurisdiction even if the decision is not a privative clause decision. In this regard, I note the decision of SZAWW & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 479 at [6]-[7] where Driver FM said:
An issue of jurisdiction was also raised for the applicants, as a friend of the Court. The issue is whether the Court has any jurisdiction under the Migration Act to review a decision that is not a “privative clause” decision. The issue arises from the language of item 18, Part 2 of schedule 3 to the Jurisdiction of the Federal Magistrates Service Legislation Amendment Act 2001 (Cth) (“Jurisdiction of the Federal Magistrates Service Legislation Amendment Act”), when read with s.477 of the Migration Act. The proposition is that the Court’s jurisdiction might be limited to the review of privative clause decisions, not decisions which are not privative clause decisions.
I ruled that I had jurisdiction in either case. This is on the basis that the Federal Magistrates Court has the same jurisdiction as the Federal Court in relation to a “matter” arising under the Migration Act: s.483A. The original jurisdiction of the Federal Court includes jurisdiction in respect to any “matter” in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth: s.39B of the Judiciary Act. Accordingly, the jurisdiction of this Court is in relation to the same “matter”. This Court’s jurisdiction, like the Federal Court’s jurisdiction, is in relation to matters arising under the Migration Act, not decisions made under the Migration Act. It makes no difference whether the decision being reviewed is or is not a privative clause decision. A “matter” is an inter partes dispute. Generally, the dispute in migration proceedings will be whether or not the decision subject to challenge is a privative clause decision. This Court, like the Federal Court, has jurisdiction to deal with that “matter”. To the extent that the particular item of the Jurisdiction of the Federal Magistrates Service Legislation Amendment Act has any impact, that impact appears to be limited to the commencement date of the jurisdiction in respect of privative clause decisions to which s.477 applies. I do not rule out the possibility that the commencement date of the Court’s jurisdiction could be different in the case of a decision to which s.477 of the Migration Act does not apply, pursuant to s.2 of the Jurisdiction of the Federal Magistrates Service Legislation Amendment Act.
In other cases dealing with similar issues, the Minister has conceded that Part 8 of the Migration Act enacted upon commencement of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) (“the new Part 8”) does not apply. This is because of the application of the Migration Legislation Amendment (Judicial Review) Act, Schedule 1, Part 2, Item 8(2). A concession to this effect was made in SZAWW (supra) before Driver FM. Driver FM followed and applied the concession made in SZAWW in SZCYW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 878 at [29], per Driver FM. In S1781 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 1038, Smith FM said at [5]:
This position appears to have been taken by the Minister in many proceedings and, although I am not confident that it is based on a proper interpretation of clause 8, I accept the concession.
In cases such as the present, the Minister has generally taken the view that where judicial review proceedings have been brought, prior to the commencement of the Migration Legislation Amendment (Judicial Review) Act, and new proceedings are subsequently brought after its commencement, Item 8(2)(b)(ii) is not satisfied, as the first proceedings amounted to an application for judicial review within the definition of that item, and therefore, it does not cause the new Part 8 to apply. Having regard to the decisions of this Court I am of the view that the new Part 8 does not apply. Therefore, this is not a “privative clause decision” for the purposes of s.474 of the Act, nor does the time limit apply under s.477. The respondent’s notice of objection to competency filed on 3 February 2005 is therefore not pressed and the applicant’s only available avenue for judicial review is under s.39B of the Judiciary Act 1903 (Cth) as it is the Court’s primary source of jurisdiction to hear applications for judicial review.
The grounds of review
The applicant relies upon his amended application filed 8 February 2005. In his amended application the applicant put forward the following grounds of review:
i)The Tribunal did not correctly address the question of whether the applicant faced a real chance of persecution by reason of his perceived persecution because of an inequitable distribution of opportunities amongst indigenous Fijians of Indian ethnicity (Dranichikov). The States Department Report and Profile states:
“ethnic and communal differences, however, do cause significant social tension in Fiji, In some cases, this tension results in the harassment and intimidation of ethnic Indians by ethnic Fijians. The police are sometimes either unable or unwilling to prevent harassment… In adequate police protection contributes to the frequency and seriousness of incidents”. (Pushpa Kumari Kamini and others v Immigration and Naturalization Service No. 98-70768) – United States Court of Appeals For the Ninth Circuit and Chen Shi Hai v MIMIA [2000] HCA 19)
ii)The Tribunal having determined that “He may encounter some detriment on account of his ethnicity” failed to apply the “real chance test” adequately as prescribed in the High Court case of Chan v Minister for Immigration and Ethnic Affairs (1989). In the Chan case the High Court held that a “real chance” is one that is not remote or insubstantial or a far fetched possibility. A person can have a well founded fear of persecution for his minority ethnicity even though the possibility of the persecution occurring is well below 50%;
iii)The Tribunal further failed to consider an important element of the persecution test advanced by His Honour Justice Kirby in numerous High Court decisions i.e the non-availability of state protection to the applicant by Government Authorities (Khawar);
Particulars
iv)The Tribunal used critical adverse information obtained after the delegate’s decision which was neither provided to the Applicant before the hearing nor put to the applicant during the hearing- MUIN;
v)The Tribunal misapplied the test or alternatively misinformed the Applicant about the test;
vi)The Tribunal member’s reasoning was of a kind that could be labelled irrational or so illogical as to indicate a failure to perform the review function at all. See Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex parte Applicant S20/2002 [2003] HCA 30;
vii)The Tribunal member failed to give proper and adequate reasons which he was required by the Act to do, and, therefore the Tribunal failed to exercise its jurisdiction; and
viii)The RRT erred in failing to consider all claims and issues put forward by the applicant.
Whether the Tribunal failed to correctly address the applicant’s fear of persecution
It was contended by the applicant that the Tribunal failed to correctly address the question of whether he faced persecution by reason of his perception of persecution because of an inequitable distribution of opportunities amongst indigenous Fijians of Indian ethnicity. The applicant appears to cite some independent country information, although the source is not known, and it is unclear if this information was before the Tribunal. In his written submissions to the Tribunal and at the hearing the applicant’s claims related primarily to his race as a Fiji Indian and his political opinion as a supporter of the FLP.
The Tribunal asked the applicant for details relating to his experiences in Fiji prior to him leaving for Australia. In relation to his education the applicant claimed that he left high school in 1985 without completing his studies. The Tribunal noted that in the applicant’s written submissions to the Department the applicant stated that he subsequently did a welding course at the Fiji National Training College for approximately three months. The applicant told the Tribunal that he had not been able to obtain a university education because Fiji Indians were required to hold higher entry marks than indigenous Fijians. The applicant stated that this had always been the situation, even before the coups. The Tribunal put to the applicant that this process did not in fact differentiate among students on the basis of race, but affected all students. The applicant responded by saying that Fiji Indians were mostly affected by this process.
The Tribunal had evidence before it that after his attendance at the Fiji National Training College the applicant had two jobs. The Tribunal was told that his first job was as a machinist with a company called Burns Philp from January 1990 to July 1990. The applicant told the Tribunal he was informed by his employer that his work performance was below a reasonable standard and he subsequently lost his job ostensibly for that reason. However, the applicant believed that the underlying reason for his dismissal was because of his ethnicity and because three quarters of the company’s employees were indigenous Fijian and his manager was half indigenous Fijian and half Fiji Indian. The Tribunal put to the applicant that perhaps he may have lost his job, not because of his race, but because his performance was below a reasonable standard. The applicant responded by saying that he did not know the real reason. The applicant claimed to have been employed by Can Makers Limited Air Con from August 1992 to July 1993 and by his own decision he terminated his position and the following month left Fiji.
In relation to his claims of discrimination the applicant claimed that the Fijian Indian community suffered discrimination in Fiji and that this included employment. The Tribunal put to the applicant independent country information which acknowledged that while there was evidence of some positive discrimination in favour of indigenous Fijians within the public sector, Fiji Indians traditionally dominated the private sector. The Tribunal accepted that racist views were expressed in the private sector from time to time, and it found that Fiji Indians were facing institutionalised racial discrimination within that sector. The Tribunal also had regard to an article submitted by the applicant.
The applicant told the Tribunal that in 1986 he joined the FLP but ceased political involvement after May 1987. The applicant stated that his family were harassed and intimidated by members of the Taukei Movement during 1987 and 1988. His father was also a staunch FLP supporter and on one occasion was questioned at an army barrack. The applicant claimed to have been violently attacked by members of the Taukei Movement after the May 1987 coup and as a result he sustained a permanent injury to his collarbone. The applicant claimed that he had been questioned by army officers on several occasions after the coup. Apart from his parents and siblings residing in Australia the applicant claimed that if he returned to Fiji he would have difficulties in re-settling as he had no family support there. The applicant also claimed that he feared further death threats. However, at the hearing the Tribunal put to him that, according to his evidence, there had been no attempt to act on these threats. He told the Tribunal that he had reported the threats to the police but they did not take any ‘real action’ rather on each occasion they assured him they were ‘working on it’. The Tribunal noted that there were no further claims advanced with respect to his fears of returning to Fiji. The Tribunal offered to the applicant some time to discuss the issues raised with him during the hearing with his representative. I note that a deadline of 23 February 1996 was agreed between him and the Tribunal for any further comments he wished to make. I note that no further submissions were provided by the date of the Tribunal decision.
After considering all of the evidence and the applicant’s claims the Tribunal found that the applicant was a member of the FLP prior to the military coup of May 1987 and that his political activities (apart from voting for the FLP in 1992) had ceased. In relation to the applicant’s claims regarding the assault in the streets of Suva the Tribunal found that although the applicant provided no medical evidence of his injured collarbone, it accepted reports that there were many incidents of violence against Fiji Indians in similar circumstances during this period, and accepted that he was injured in the circumstances described.
Before the Tribunal proceeded to consider the applicant’s claim to fear discrimination in Fiji because of his race, and whether they amounted to persecution it noted the issues that had been canvassed in the 1992 UNCHR Handbook. The Tribunal also had regard to Chan’s case (supra). The Tribunal found that it was the applicant’s failure to complete his secondary schooling which prevented his entry to university. The Tribunal, having regard to Chan’s case, found that although denial of access to education may constitute persecution if imposed for a Convention reason, restricted access to higher education was not of itself normally regarded as amounting to persecution. The Tribunal found that this will occur only in circumstances where substantial prejudice arises from the denial of access to normally available educational facilities. The Tribunal found that the applicant was able to gain entry to the Fiji National Training College and obtain two jobs and that on this basis no substantial prejudice arose from his inability to gain entry to university. The Tribunal found that it was plausible that the applicant lost his first job because of his race but noted the applicant’s uncertainty as to why he in fact lost that job. The Tribunal accepted that while a denial of access to employment may well amount to persecution it found that the applicant had not been denied employment and noted there was no evidence to support his claim. The Tribunal found that while there was some discrimination against Fiji Indians in the public service there was not a policy of denial of access to employment for Fiji Indians in Fiji today. The Tribunal found that while there was an occurrence of discrimination against Fiji Indians, it did not consider that the political, education and employment bias in favour of indigenous Fijians amounted to persecution of them, as defined in Chan’s case.
The Tribunal accepted that there were local incidents from time to time arising from racial tension in Fiji. In relation to access to state protection, the Tribunal noted that the evidence satisfied it that the applicant could seek adequate state protection if the applicant required it, and that the state would not discriminate against him for a Convention reason in its response. The Tribunal found that the government in Fiji was taking steps to provide protection to all Fiji citizens, regardless of race.
The Tribunal found on the basis of the applicant’s evidence, the chance of persecution was remote. The Tribunal found that a series of death threats may, in some circumstances, amount to systematic harassment, and therefore persecution. The Tribunal noted that if the threats complained of by the applicant were carried out then that would amount to persecution. The Tribunal found it significant that the applicant did not make any mention of the death threats in his initial application for refugee status nor his written submissions to the Tribunal, only raising them in oral evidence before the Tribunal. The Tribunal found that threats may not in fact have occurred and noted the fact that he remained living in the same residence for four years after the threats began, even when it became apparent to him that the police were taking no action. This indicated to the Tribunal that the applicant did not assess the threats as so serious that he had to flee in order to avoid being killed. The Tribunal found that the applicant’s assessment appears to have been realistic, given that, according to his evidence, no attempt was made by the caller to act on the threats and the fact that the calls stopped a year before the applicant left Fiji, leading the Tribunal to conclude that the caller had lost interest in harming the applicant. The Tribunal found that even if the calls recurred, based on the evidence, state protection would be available to him. Finally, the Tribunal found that while there may be discrimination directed at the applicant from time to time because of his race or his past political opinion, on the evidence the Tribunal had before there was no real chance that he faced persecution for a Convention reason if he returned to Fiji.
The Full Federal Court in WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74 said at [17]-[18] that:
The principal criterion for the grant of a protection visa under the Act is that the applicant have a well-founded fear of persecution for reason of race, religion, nationality, membership of a particular social group or political opinion. A fear of persecution is a well-founded fear if it is shown by the nature of past events, and/or the prospect that such events may occur in future, that there is a risk that the applicant may suffer persecution if returned to the country of nationality. The risk so described is one that is real and not fanciful. It is not a requirement that the risk be measurable as to degree of likelihood or probability. (See: Chan Yee Kin v Minister For Immigration and Ethnic Affairs (1989) 169 CLR 379 per McHugh J at 417).
The role of the Tribunal in conducting a review under the Act is to assess whether the material presented indicates that there is a real possibility that if the applicant were returned to the country of nationality events involving the applicant may occur which would constitute persecution of the applicant. If so, the Tribunal will be satisfied that the applicant qualifies for the grant of a visa and, pursuant to s 65(1) of the Act, must grant the visa applied for, subject, of course, to the qualifications now contained in 36(3)-(7) and subdivisions AK and AL of Division 3 of Part 2 of the Act. If the material does not show that such a risk exists the visa must be refused.
It is apparent from reading the decision of the Tribunal and in particular its assessment of the applicant’s claims as to persecution that the Tribunal plainly addressed and considered each of the applicant’s claims. I see no departure from the ‘well founded’ and ‘real chance’ test as discussed in Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 as contended by the applicant. The Tribunal had before it independent country information to assist it with its assessment of whether the applicant faced persecution. Moreover, it considered both the applicant’s oral and written evidence. That evidence, together with the independent country information constituted the basis upon which the Tribunal to reach its findings. They were findings of fact which were reasonably open to it. Accordingly, this ground must fail.
Whether the Tribunal failed to apply the real chance test
It was contended by the applicant that the Tribunal having determined that the he may encounter some detriment on account of his ethnicity failed to apply the correct real chance test as set out in Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379.
On my reading of the Tribunal decision it made considerable reference to Chan. According to the High Court in Minister for Immigration & Multicultural & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 their Honours held at [278] that the effect of Chan was to essentially engage in a process of looking to the future. In Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 the High Court confirmed what the it had said in Wu Shang Liang, namely:
Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. In the present case, for example, the Tribunal correctly relied on what it found had happened to Mr Guo and others to make a finding that he was not "differentially at risk for a Convention reason." Without making findings about the policies of the Chinese authorities and the past relationship of Mr Guo with those authorities, the Tribunal would have had no rational basis from which it could assess whether there was a real chance that he might be persecuted for a Convention reason if he were returned to the PRC.
In Minister for Immigration & Multicultural & Indigenous Affairs v W64/01A [2003] FCAFC 12, I note the comments of French J at [37]-[39]:
The Tribunal, in assessing claims and evidence before it, is required to undertake a process of "looking to the future" which is the "essence of the Chan test" - Wu at 278. Chan was acknowledged in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 as establishing that a person can have a well-founded fear of persecution even though the probability of persecution occurring is well below fifty per cent. But the joint judgment in that case went on to caution:
"... to use the real chance test as a substitute for the Convention term "well-founded fear" is to invite error." ( p 572)
The application of that test may require findings that an event might or might not occur in the future but does not require the decision-maker to engage in conjecture or surmise (at p 572). The future-looking process accepted in Wu was elaborated in Guo where it was said that:
"... unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future." (p 575)
In most cases that process will require findings of past events as the bases for inferences about what will happen in the future. The Tribunal is entitled to weigh material before it and to make findings before it engages in any consideration of whether or not a fear of persecution on a Convention ground is well-founded. If the findings are sufficiently strong, the Tribunal may not be bound to consider the possibility that they are inaccurate. The examination of past events does not require definitive findings as to their occurrence for:
"... in determining whether there is a real chance that an event will occur or will occur for a particular reason, the degree of probability that similar events have or have not occurred or have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future." (p 576)
The question to be addressed by the Tribunal is whether an applicant has "a well-founded fear of persecution for a Convention reason having regard to possible past occurrences and possible future events" - WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 at [38].
38 Where the Tribunal finds that a past event has not occurred but cannot exclude the possibility that it did, that possibility may provide a basis for finding a well-founded fear of persecution in the future - Guo at 576; Abebe v The Commonwealth (1999) 197 CLR 510 at 544-545 (Gleeson CJ and McHugh J); Rajalingam at 236. If the Tribunal has no real doubt that its findings as to past events are correct, it is not bound to consider the possibility that those findings are wrong - Rajalingam at 238. Depending on the importance of the asserted past event a failure to consider the possibility that it occurred could constitute a failure to undertake the "reasonable speculation" necessary to determine whether there is a substantial basis for the claimed fear of persecution - Rajalingam at 240. Relevantly for the present case Sackville J observed, at 241:
"... the RRT's reasons may show that no consideration was given to the possibility (albeit not a likelihood) that such persecution had occurred, a possibility left open by the RRT's findings."
It is, however, impermissible, as Kenny J said in her judgment in Rajalingham at 257, to attribute to the Tribunal the Court's doubts about the Tribunal's factual findings.
39 The requirement to assess the probability or "degree of possibility" of past events was reasserted by North and Madgwick JJ in Kalala v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 212, while allowing that:
"... it would be only sensible to allow some considerable scope for reasonable variation of individual approaches on the part of decision-makers."
Having regard to the authorities listed above I am satisfied that the Tribunal did not fail to state or apply the principles laid down in Chan’s case. In other words it plainly looked to the future. In particular I note the test was correctly applied and set out on pages 56 to 59 of the Tribunal decision. Accordingly, as this ground fails to disclose error it must be dismissed.
Whether the Tribunal considered the issue of State protection
It was contended by the applicant that the Tribunal did not consider the issue of state protection. In its reasons after considering evidence the Tribunal expressly found that there was effective state protection in Fiji. The applicant relied upon the decision of Minister for Immigration & Multicultural & Indigenous Affairs v Khawar (2002) 210 CLR 1. That decision does not assist the applicant’s case. Accordingly, this ground lacks substance and must be refused.
Whether the Tribunal used critical adverse information obtained
It was contended by the applicant that the Tribunal used critical adverse information obtained after the delegate’s decision which was neither provided to the applicant before the hearing nor put to the applicant during the hearing. The applicant fails to identify the critical adverse information he says was used against him and was not put to him during the Tribunal hearing. On 2 June 1995 the Tribunal wrote to the applicant and provided him with copies of the relevant country reports. I note also that on 4 July 1995 the Tribunal sent a letter to the applicant indicating that further country information had come to its attention. The letter enclosed a complete copy of that report for the benefit of the applicant. It is apparent from the Tribunal’s decision that it put to the applicant country information at the hearing. The applicant has not provided evidence of the transcript of the hearing and thus fails to make good this ground. In obtaining the country information the Tribunal was acting within its powers. Accordingly, as there is no reversible error this ground must fail.
Whether the Tribunal misapplied the test or alternatively misinformed the applicant about the test
This ground is without particularity and is incomprehensible.
Whether the Tribunal’s reasoning was irrational or illogical
It was contended by the applicant that the Tribunal’s reasoning was so irrational or illogical as to indicate a failure to perform the review function at all. The applicant has not precisely demonstrated how the Tribunal’s reasoning shows some want or rationality or logic. Want of logic does not of itself constitute an error of law (Australian Broadcasting Television v Bond (1990) 170 CLR 321 at [356], per Mason CJ; NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 at [30]; Epeabaka v Minister for Immigration (1999) 84 FCR 411). However, in Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 Gummow J said at [145] that the power of review would be enlivened where “the satisfaction of the decision maker was based on findings or inferences of fact which were not supported by some probative material or logical grounds”. There is further support for Gummow J’s views in that illogicality can constitute jurisdictional error (Re Minister for Immigration and Multicultural Affairs: Ex parte S20/2002 (2003) 198 ALR 59 at [34]-[37], [138] and Minister for Immigration and Multicultural and Indigenous Affairs v Rajamanikkam (2002) 190 ALR 402 at [25], [100]). However, I am not satisfied that the Tribunal’s reasoning was irrational or illogical. It is apparent the findings of the Tribunal were appropriately reached and were properly based on the evidence it had before it. Accordingly, this ground fails.
Whether the Tribunal failed to provide adequate and proper reasons
It was contended by the applicant that the Tribunal failed to provide adequate and proper reasons in accordance with the Act. I do not support this contention. I am satisfied that the Tribunal gave adequate and proper reasons and its findings were reached on the evidence it had before it. Further, the High Court has held that there is no general right at common law to reasons for decision (Public Service Board of NSW v Osmond (1986) 159 CLR 656; 63 ALR 559). However, the Tribunal was required by virtue of s.430 of the Act to provide reasons for its decision and I am satisfied that the Tribunal has discharged its obligations under the Act. The Tribunal set out its decision and the reasons therefore. I am satisfied that the Tribunal set out proper findings on the material questions of fact and made clear reference to all evidence before it. Even if there was a finding that the Tribunal failed to comply with s.430 of the Act there is a line of authority that indicates that a failure to comply with s.430 of the Act does not necessarily constitute jurisdictional error (Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611; Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323; NAFT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 254 at [7]). Accordingly, this ground is refused.
Whether the Tribunal failed to consider all claims or issues of the applicant
It was contended by the applicant that the Tribunal erred in failing to consider all of his claims and issues. The applicant has not drawn the Court’s attention to the precise claims that the Tribunal allegedly failed to consider. Accordingly, I am not satisfied that the applicant has made good this ground. On my reading of the decision it becomes apparent that the Tribunal considered both the applicant’s oral and written claims. Accordingly, in the absence of evidence this ground must be refused.
Conclusions
I can see no jurisdictional error or error of law in the Tribunal decision. Nor can I see any other error in the Tribunal’s reasoning in relation to this matter, let alone jurisdictional error. Accordingly, as the applicant has failed to demonstrate jurisdictional error the application is dismissed. I note that even if the applicant had disclosed a jurisdictional error or error of law the delay in bringing this action would in any event lead the Court to refuse the applicant relief (SZDSJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 160, Smith FM at [14]-[17], per Smith FM).
For the above reasons, I am satisfied that the orders are appropriate.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Pascoe CFM
Legal Associate: Peter Smith
Date:
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