SZGGE v Minister for Immigration - [2007] FMCA 963

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGGE v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 963

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal was biased in the making of its decision – whether the Refugee Review Tribunal failed to consider the Applicant’s membership of a particular social group.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A; 424A(1); 424A(3)(a); 474; pt.8 div.2

Re Refugee Review Tribunal; Ex parte H [2001] HCA 28
NADH of 2001 & Others v Minister for Immigrationand Multicultural and Indigenous Affairs 214 ALR 264
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
SZBNQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1033
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389

Applicant:

SZGGE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG3078 of 2006

Judgment of:

Emmett FM

Hearing date:

7 June 2007

Date of last submission:

7 June 2007

Delivered at:

Sydney

Delivered on:

22 June 2007

REPRESENTATION

Solicitors for the Applicant:

Mr A. Silva

Counsel for the Respondent:

Mr J. Mitchell

Solicitors for the Respondent:

Ms T. Quinn, DLA Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3078 of 2006

SZGGE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated

8 September 2006 and handed down on 26 September 2006.
The Applicant was born on 20 December 1983 and claims to be from Fiji and of Indian ethnicity and Hindu faith (“the Applicant”).
On 9 September 2004, the Applicant arrived in Australia having legally departed from Nadi Airport on a passport issued in her own name and a visa issued on 10 June 2004.
On 12 October 2004, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
In her protection visa application, the Applicant claimed that she feared persecution by indigenous Fijians and her brother. As accurately summarised by the First Respondent the Applicant claimed:
“she held generalised fears for her physical safety and mental health as an Indo-Fijian woman who had no family support in Fiji. She did not claim incidents of past persecution other than that there was a history of family conflict and violence”
She claimed she feared she would be raped or attacked and that she and other members of her family had been subject to various threats. She claimed she had general fears for her physical safety and mental health due to being a woman without family support and her ethnicity. She claimed the authorities were unhelpful to people of Indian ethnicity.
On 14 October 2004, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 18 November 2004, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal. In this application for review the Applicant appointed a migration agent as her representative. The Applicant provided with her application for review a fourteen page statement setting out her claims. The Refugee Review Tribunal summarised these claims in the record of its decision handed down on 11 March 2005.
On 5 January 2005, the Applicant attended a hearing before the Refugee Review Tribunal and gave oral evidence.
On 11 March 2005, the Refugee Review Tribunal affirmed the decision of the Delegate not to grant the Applicant a protection visa. The Refugee Review Tribunal handed down this decision 1 April 2005.
The Applicant filed an application in this Court seeking judicial review of the Refugee Review Tribunal decision handed down on 1 April 2005. On 19 April 2006, the matter was remitted by consent to the Refugee Review Tribunal for determination according to law.
On 8 September 2006, a differently constituted Refugee Review Tribunal (“the Tribunal”) affirmed the decision of the Delegate not to grant a protection (Class XA) visa.
On 23 October 2006, the Applicant filed an application in this Court for judicial review of the Tribunal Decision of 8 September 2006.

Legislative framework

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

The Tribunal proceeding

On 8 June 2006, the Tribunal wrote to the Applicant inviting her to provide any further written submissions that she wished to be considered by the Tribunal that had not previously been provided to the earlier constituted Refugee Review Tribunal.
On 15 June 2006, the Applicant’s representative wrote to the Tribunal confirming that the Applicant wished to rely on her previous claims and materials previously provided to the earlier constituted Refugee Review Tribunal in support of those claims.
On 4 July 2006, the Tribunal invited the Applicant to come to a hearing on 7 August 2006.
The Tribunal noted that it had before it the Department’s file, including the application for a protection visa and the Delegate’s decision record, as well as the file of the Refugee Review Tribunal and other materials available to it from a range of sources.
On 7 August 2006, the Applicant attended the Tribunal hearing and gave oral evidence as well as providing further documents, including written submissions and a copy of her passport. The Applicant’s sister and the Applicant’s representative also gave evidence at that hearing.
On 11 August 2006, the Tribunal wrote to the Applicant, pursuant to s.424A of the Act, identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the Applicant to comment upon it.
The Tribunal found the Applicant not to be a credible witness.
The decision of the Tribunal is accurately summarised by counsel for the First Respondent in his written submissions as follows:
“3.3 The Tribunal affirmed the decision under review. It made the following relevant findings:
(a) It accepted that the Applicant was of Indo Fijian ethnicity and was a citizen of Fiji.
(b) It accepted that the Applicant’s family had been in violent disagreements subsequent to the death of the Applicant’s father and that the Applicant’s brother threatened to have his sister assaulted unless his mother gave him his share of his father’s estate.
(c) It did not accept the Applicant’s claims, recorded in her application for review, to have been persecuted by indigenous Fijians in the past. It rejected these claims on the following grounds:
(i) Those claims relating to past persecution at the hands of indigenous affairs had not been made in her application for protection visa. The Applicant’s explanations for this discrepancy were not accepted.
(ii) She had not made earlier applications for a protection visa on her numerous visits to Australia between 1999 to 2004. This was the period when she claimed to have been persecuted.
(iii) She claimed that an attack on the family home occurred in 1987, when she was three or four years old. Notwithstanding that she was only three or four years of age, she had a vivid recollection of Fijians forcefully entering the house, assaulting her brother, her sister and herself and threatening her with sexual assault. This claim was found to be unreliable.
(iv) She made other claims regarding past persecution of members of her family in 1987. Again, the Applicant was three or four years old when those incidents were claimed to have occurred. This claim was “wholly implausible”
(d) It accepted that the Applicant held fears for her safety. However it found these fears were not objectively well-founded. Based on country information the Tribunal found that there was no basis for the Applicant’s fears of persecution by reason of religion. In respect to the Applicant’s ethnicity based claims the Tribunal found that law and order had been restored in Fiji, that the judicial system was fair and impartial and that the police force was more efficient and responsive since the 1987 coup and offered community protection to a reasonable standard. The police and government authorities were willing and had the capacity to respond to threats of harm. The Tribunal did not accept that the young women of Indo Fijian ethnicity and Hindu religion would be targeted for harm by indigenous Fijians or that the police would withhold protection from such women.”

The proceeding before this Court

The Applicant was represented before this Court by her solicitor, Mr Silva. By consent the Applicant was given leave to file in Court and rely upon a further amended application. The grounds of the further amended application are set out as follows:
“Ground 1
The Tribunal made jurisdictional error in that it did not deal with the Applicant’s case in a bona fide manner. Thus the Tribunal was biased as it prejudged the Applicant’s case.
Particulars
The Tribunal’s rejection of the extensive claims of persecution without giving reasons for most of them and giving seriously flawed reasons for some of them shows that it had a closed mind.
The Applicant is bitter that during the hearing the Tribunal did not ask the Applicant about the truth of at least some of the substantial claims. The Tribunal also did not ask her sister who gave evidence about those extensive claims either.
Ground 2
The Tribunal made jurisdictional error in that the way it went about conducting the review in combination with its reasons which might have caused a reasonable lay observer to apprehend conclude that the tribunal was biased.
Particulars
Same as under Ground 1
Ground 3
The Tribunal made jurisdictional error in that it made findings of fabrication which was not open on the evidence
Particulars
The details provided by the Applicant in her Protection Visa Application accords well with what she provided to the Tribunal later. In her protection visa application the Applicant referred to two sources of harm one is her brother and the other native Fijians.
Though the Applicant did not refer to specific incidents of harm from native Fijians she referred to threats from them. This is not a case of the Applicant later referring to a different Convention reason or not referring to the particular source of threat at all which came to be her main claim later. The Tribunal could only have rejected the detailed claims if it has found that the Applicant has been lying.
Ground 4
4(a) The Tribunal failed to consider whether the Applicant would be persecuted for membership of a particular social group consisting of “Young Indo-Fijian women living alone in Fiji”.
Particulars
At page CB 142 the first Tribunal considered the above particular social group and this Tribunal should have also considered that because it was aware of what the first tribunal did.
4(b) The Tribunal made jurisdictional error as it failed to deal with the claim the applicant put to the Tribunal and dealt with the claim on a different basis.
Particulars
The Tribunal stated Applicants claim as follows in its Findings and Reasons:
The applicant claims to fear persecution from members of the indigenous community in Fiji because of she is a young woman of Indo Fijian ethnicity and because of her Hindu religion.
However her claim is:
She is a young woman of Indo Fijian ethnicity and because of her Hindu religion and living alone”

Grounds 1 and 2 – Bias and apprehended bias

In support of this ground the Applicant read an affidavit affirmed on 31 May 2007 which an annexed a copy of a transcript of the hearing before the Tribunal.
The Applicant’s solicitor contended that the Tribunal demonstrated bias in three respects:
i)The Tribunal’s rejection of the extensive claims of persecution made by the Applicant without giving reasons for most of them;
ii)The Tribunal failed to ask the Applicant about the substantial claims made by her at the hearing;
iii)The Tribunal failed to ask the Applicant’s sister about matters in respect which she could give evidence in support of the Applicant.
In relation to (i) above, the Applicant’s solicitor referred the Court to the Findings and Reasons section of the Tribunal’s decision where the Tribunal comprehensively rejected each of the claims made by the Applicant. The Applicant’s solicitor submitted that those adverse findings were unreasoned and not based on evidence before the Tribunal.
A fair reading of the Tribunal’s decision makes clear that the Tribunal identified with particularity:
a)The information given by the Applicant to the Department in support of her protection visa application;
b)The written claims made by the Applicant before the earlier constituted Refugee Review Tribunal;
c)The oral evidence given by the Applicant at the hearing on 5 January 2005 of the earlier constituted Refugee Review Tribunal;
d)A post-hearing submission dated 10 February 2005 following the earlier constituted Refugee Review Tribunal hearing together with a statutory declaration completed by the Applicant’s sister; and
e)The oral evidence of the Applicant’s sister, the Applicant and her advisor.
The Tribunal also set out in its decision its letter dated, 11 August 2006, sent pursuant to s.424A of the Act in which it set out various inconsistencies in information provided by the Applicant in her long statement provided to the earlier constituted Refugee Review Tribunal and the content of her protection visa application. In that letter, the Tribunal also noted that the Applicant’s sister gave evidence at the hearing before the Tribunal on 9 August 2006; that she assisted the Applicant to complete her application for a protection visa; and, that she did not understand the importance of setting out details of her claim. The Tribunal noted that the information was relevant for the following reason:
“The information is relevant because the Tribunal may consider that the failure to mention all or some of these incidents when you made your application for a protection visa indicates that you have fabricated these incidents to support your claim for refugee status following the refusal to grant the protection visa.”
The Tribunal noted the response of the Applicant’s advisor, dated 23 August 2006, and noted that it reiterated the lengthy statement of the Applicant, dated 18 November 2004 provided to the earlier constituted Refugee Review Tribunal. The letter also provided reasons why that material had not been given by the Applicant in support of her protection visa application.
The Tribunal also noted that the letter of response, dated 23 August 2006, suggested that the Tribunal’s use of language in explaining why the information was relevant showed that it had prejudged the issue of the Applicant’s credibility and reached a conclusion that the claims had been fabricated.
The Tribunal’s decision then went on to identify and summarise the independent country information to which it had regard.
The Tribunal summarised the Applicant’s claims as follows:
“The applicant claims to fear persecution from members of the indigenous community in Fiji because of she is a young woman of Indo Fijian ethnicity and because of her Hindu religion. She claims that she has been seriously mistreated in the past and that if she returns she will suffer harm at the hands of members of the indigenous community. She further claims that the police and state authorities will not provide her with protection against such harm.”
The Tribunal noted that it was required to “determine whether the applicant has a well founded fear and if so whether what she fears amounts to persecution for a Convention related reason…to consider all the evidence, make findings on material questions of fact and then to give reasons for [the Tribunal’s] decision.”
The Tribunal accepted that the Applicant is a citizen of Fiji, that she is a young woman of Indo Fijian ethnicity, that she is a Hindu and was born in Fiji and grew up in or near the village of Raiwaiqa Suva. The Tribunal accepted that the Applicant’s parents and two siblings came to Australia 1987/1988 and overstayed their visas.
The Tribunal accepted that, following the Applicant’s father’s death in 1989, the Applicant, her mother, her sister and brother returned to live in Fiji when the Applicant was about 5 or 6 years old. The Tribunal accepted that about 13 years ago the Applicant’s elder sister married and settled in Australia. The Tribunal accepted that the Applicant’s brother and other family members have been involved in violent disagreements and disputes following the Applicant’s father’s death resulting in the failure of the Applicant’s brother to provide any family support or protection to the Applicant if she were to return to Fiji.
The Tribunal then went on to consider the Applicant’s claims of mistreatment under a heading “Claims of Mistreatment”. The first paragraph stated “I have set out below a series of findings in relation to claims of mistreatment made in the statement of 18 November 2004. I have based my findings on a number of reasons.”
The transcript disclosed that, at the outset of the hearing, the Tribunal member stated that her job was to consider the application for review and that in doing so the Tribunal was “not bound by the reason of the previous member or the conclusions that he drew from the information and evidence. But I am able to use all the information that has been given to the Tribunal from the time that you made the application for review. And that includes any evidence that was given at the previous hearing, and any evidence that you might give me today or that your sister might give me, or any submission that your advisor gives me which I note he has.” The Applicant responded that she was “perfectly ok” with that.
The Tribunal also said to the Applicant “you outlined to the last Tribunal things that have happened to you and that you are concerned about. If I were to say to you now what you fear about returning to Fiji what would you say to me?” The Applicant answered, “I would say to you I fear for my life. I fear of my race and religion. I have a fear I will be persecuted because I am a woman who is at risk. I am a woman who is vulnerable to the society. I am a woman who is alone, single, with no family support whatsoever.”

In the circumstances, the Tribunal was entitled to proceed on the understanding that there was no departure by the Applicant from the claims made by her in her statement dated 18 November 2004.
The Tribunal expressed the reasons for its rejection of the Applicant’s claims, as follows:
a)The Applicant lodged an application for a protection visa on 12 October 2004 setting out her claims for refugee status. Following the refusal of her application by the Delegate the Applicant submitted a statement of some 14 pages setting out a series of incidents involving “threats of violence, actual violence, threats of rape and actual sexual assault and desecration of religious sites by unidentified indigenous Fijians.” The Tribunal noted that these claims were set out in detail and found that the Applicant appeared to have no difficulty in recalling these incidents with some clarity. The Tribunal then went on to note that these incidents had not been mentioned or referred to either in detail or in summary form in the application for a protection visa. The Tribunal noted that it had “considered carefully” the reasons given by the Applicant and her sister for the failure to include some or all of those claims however, the Tribunal did not accept the explanation that the Applicant and her sister were unfamiliar with the requirements and thought that the Applicant would be called for an interview. In making that finding, the Tribunal noted that the Applicant had not explained why she was under the impression that she would not be called for an interview. The Tribunal noted that it did accept that the Applicant was distressed due to her mother’s death at the time of the application for a protection visa. However, the Tribunal did not regard this factor as an explanation sufficient to explain her failure to provide at least some of the information given later to the Tribunal even in a general or summary form.
b)In particular, the Tribunal noted that “this is not a situation where a bare outline of claims has been already given and greater detail provided with a later application for review or where minor incidents or details have been omitted from the application for a protection visa.” The Tribunal noted that the reasons given in the protection visa application were related to family circumstances and a general fear of the indigenous community and her brother in Fiji. Because none of the serious incidents referred to in the statement of 18 November 2004 were mentioned by the Applicant in the first protection visa application, having regard to the Applicant and her sister’s evidence in respect of those issues, the Tribunal found that the Applicant’s claims of serious mistreatment in that statement to have been “fabricated” and that the Applicant’s evidence is “totally unreliable on material questions of fact”.
c)The Tribunal noted that it was supported in its rejection of the Applicant’s claims in her statement dated 18 November 2004 because the Applicant had visited her sister in Australia on a number of occasions between 1999 and 2004 and did not seek a protection visa during any of those visits. The Tribunal rejected the Applicant’s explanation that she was concerned only with her mother and did not wish to apply for protection because she could have been restricted from visiting her mother in Fiji whilst waiting for a determination.
d)The Tribunal found that, in the context of the serious nature and extent of her claims, the Applicant’s conduct in continuing to attend university at Fiji between visits to Australia and the Delegate’s decision, was not conduct consistent with a genuine fear of persecution arising from the incidents of mistreatment as claimed.
The Tribunal went on to deal with each of the claims specifically predicating its referral to those claims in the following terms:
“In relation to its specific claims of mistreatment set out in her statement I find her evidence unreliable and make the following findings for the reasons set out above and for reasons as explicitly indicated.”
Thereafter, the Tribunal set out the Applicant’s claims with some particularity and its rejection of each of those claims. It is the Tribunal’s rejection of each of those claims that the Applicant’s solicitor contends was made in a manner that indicated prejudgment.
I reject that contention. The Tribunal’s rejection of the Applicant’s claims was reasoned and was open to the Tribunal on the evidence and material before it. It was preceded by a detailed analysis of the Applicant’s claims and the evidence before it which included its reasons why it rejected the applicant’s claims. These are dealt with below.
The Tribunal referred specifically to the Applicant’s response to the s.424A letter and the suggestion that the Tribunal had prejudged the issue of her credibility. The Tribunal explained why it rejected the Applicant’s explanation of her failure to mention the claims in her protection visa application, being her lack of advice. The Tribunal noted in particular that professional advice would be as to “the law and practise relating to the determination of applications for protection visas and also assistance in making submissions, drafting statements and collecting reliable evidence.” The Tribunal particularly noticed that during that process issues are often refined and identified. However, the Tribunal noted that in the matter before it there was an absence of any mention of the specific claims of serious Convention based mistreatment that were referred to in the Applicant’s statements. It noted that those claims were only made following a refusal by the Delegate of the Applicant’s application for a protection visa.
The Tribunal also noted the complaint by the Applicant in her letter dated 7 August 2006 of the short duration of her hearing before the Tribunal and that she was not questioned at length about her specific claims. The Tribunal noted that it had explained to her what occurred at a remittal. The Tribunal also noted that the Applicant had indicated in writing prior to the hearing and at the hearing there was nothing further she wished to put to the Tribunal other than the matters discussed at the hearing.
I note that the transcript discloses that following exchanges between the Tribunal and the Applicant:
“Q. You outlined to the last tribunal things that have happened to you and that you were concerned about. If I was to say to you now what you fear about returning to Fiji, what would you say to me?
A. I would say to you I fear for my life. I fear of my race and religion. I have a fear that I will be persecuted because I am a woman who is at risk. I am a woman that is vulnerable to the society. I am a woman who is alone, single, with no family support whatsoever.”
The transcript also discloses that the Applicant was asked on two occasions if there was anything else she wished to say to the Tribunal.
The transcript also discloses that the Applicant’s advisor was asked whether or not there was anything further he wished to add to his earlier submissions that he gave to the earlier constituted Refugee Review Tribunal. The transcript then discloses that the advisor gave a lengthy answer.
The transcript also discloses that the advisor expressed concern about the credibility findings made by the earlier constituted Refugee Review Tribunal and that he did not wish to leave the hearing said “with a view that the damage done in the first hearing would linger on and on.” The Tribunal then stated in response to this concern “And I intend to listen to the tapes myself I listened to the evidence that was given. I don’t actually pay much attention to the actual conclusions the other member has drawn. Do you understand what I am saying?” The advisor answered “Certainly”.
The Tribunal went on to say “So I listen to what someone has said, and if there’s something – sometimes I don’t agree with the way that people have, you know, looked at the evidence. So I will certainly give it my very best attention, because I do understand the difficult position that the applicant is in.”
The Tribunal noted in its decision that the advisor and the Applicant may have misunderstood the law and practise relating to procedural fairness requirements applicable to the Tribunal. The Tribunal also made clear it did not regard the Applicant’s advisor as being implicated in its finding of a fabrication of the Applicant’s claims. The Tribunal noted in particular:
“The advisor also makes certain submissions on credibility and states that if a decision is made “on a whim” based on negative inferences drawn from the demeanour of an applicant that such a process is highly unfair. I have not made any findings based either on a whim or on the applicant’s demeanour in this matter. I have set out the reasons for my decision as I am obliged to do by the legislation and judicial authority.”
The Tribunal then went on to consider whether or not the Applicant’s fear was well-founded. The Tribunal accepted that the Applicant may have a subjective fear of returning to Fiji for reasons of lack of family support. The Tribunal found that the Applicant’s fear arose from “her situation as a young woman without immediate family support and protection and a perception that she is at risk generally from members of the indigenous Fijian community.”
The Tribunal then had regard to independent country information before it and found that there is a high level of tolerance for different religions practised in Fiji and that there was no evidence that any religious group in Fiji faced harm or discrimination by reason of religion. The Tribunal also noted the independent country information indicated that ethnicity was generally related to religion and that most Hindus in Fiji are of Indo Fijian background.
The Tribunal accepted that Indo Fijian persons were targeted around the time of the coup in May 2000 and that there was insufficient police protection available to Indo Fijians during that period.
However, the Tribunal found that since that time law and order has been restored, two elections have taken place and that the judicial system has continued to operate in a fair and impartial manner.
Whilst the Tribunal noted that there was evidence that some criminal conduct had increased in recent years, it found that the government did not condone or tolerate criminal conduct and had demonstrated a willingness and capacity to respond to the increase in criminal activity. The Tribunal noted that independent country information indicated that offenders are charged and convicted of sexual offences and punished accordingly. In particular, the Tribunal found that there was “no information which suggests and I do not accept that young women of Indo Fijian ethnicity and Hindu religion are targeted for harm by indigenous Fijians. There is no evidence and I do not accept that the police withhold protection from young women of Indo Fijian ethnicity and Hindu religion.”
The Tribunal noted the Applicant’s concern that as a young Indo Fijian women she was at risk of sexual assault in Fiji, however, the Tribunal did not accept that her fear was well-founded.
Accordingly, the Tribunal concluded that it did not accept that the Applicant had suffered any serious harm in the past in Fiji for a Convention related reason and did not accept that the Applicant “faces a real chance of persecution if she returned to Fiji for reasons of her Indo Fijian ethnicity, her Hindu religion or as a young woman of Indo Fijian ethnicity/Hindu religion or as a young woman or any other Convention reason.”
The findings of fact made by the Tribunal in the consideration of whether the Applicant’s fear was well-founded, were open to it on the evidence and material before it and for which it gave reasons.
There is nothing on the face of the decision that would suggest that the Tribunal approached its task other than with a mind open to persuasion (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27]-[32]; NADH of 2001 & Others v Minister for Immigrationand Multicultural and Indigenous Affairs 214 ALR 264 at [115]).
In relation to (ii) in paragraph 30 above, similarly, a perusal of the transcript of the hearing made clear that there was every opportunity given to the Applicant to say whatever she wished in support of her claim. The questions generally appeared to be open ended and invited explanatory answers.
The Tribunal put to the Applicant the content of the independent information to which it had regard in a way that enabled the Applicant to respond to those concerns. The Tribunal informed the Applicant that no country can provide absolute protection and that “all that a country can do is provide a reasonable level of protection so that’s in accordance with national standards.”
The Applicant disclosed that it was her lack of family support that caused her particular concern and that she is just a young single girl who may be considered “fresh meat”. The Applicant expressed concern that after being raped her life would be ruined.
In the course of his submissions, the Applicant’s solicitor referred the Court to various quotes from various pieces of independent country information that demonstrated that violence was still current in Fiji, that there was a police shortage, that there had been attacks on Hindu temples, that Indo Fijians had been subject to burglary and there was targeted violence and rapes. He also referred to independent country information that the Indo Fijians were subject to burglary because they were likely to keep money and jewellery on their premises.
That is all independent country information to which the Tribunal had regard and from which it made its findings. The information to which the Tribunal has regard in weighing its evidence and in the findings it made arising from that evidence is a matter solely for the Tribunal. Authorities have made it clear that, pursuant to s.424A(3)(a), independent country information is excluded from the obligations of s.424A(1), and it is a matter for the Tribunal in relation to the weight that it attaches to that material and the use that it makes of it. Further, the Tribunal is not bound by the rules of evidence in conducting its review and may obtain information it considers relevant. NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] (“NAHI”); QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [26]; SZBNQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1033 at [16].
In NAHI at [11] the Full Court of the Federal Court stated:
“It is not…an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review.”
There is nothing to suggest the Applicant was precluded from saying anything at the hearing that she wished. Her request to have her sister appear as a witness on her behalf was granted and the sister was able to give evidence. As was the Applicant’s advisor allowed to make submissions in support of the applicant.
In relation to (iii) above, the Applicant complains that the Tribunal failed to ask the sister sufficient questions at the hearing thereby indicating bias. The Tribunal noted that it considered the evidence of the Applicant’s sister but, because it found that the Applicant’s evidence was “wholly unreliable” on material aspects of her claim, it did not accept that the sister’s evidence corroborated those claims.
The Applicant’s solicitor contended that the Tribunal should have asked particular questions of the sister. He stated that the Tribunal should not have stated to the sister at the beginning of her evidence “can you just give me an outline of what evidence you propose to give.” The Applicant’s solicitor submitted that to ask that question was too confronting for the sister in the circumstances.
However, the sister’s response to that question does not indicate that she found the question “too confronting”. The response was “I think in the initial application at the last hearing there was a question raised by the member saying that the initial application why wasn’t the information given that was given later on in the submission.” The Tribunal member said “And you wanted to give evidence about that?” The answer being “yes”.
Those responses from the sister do not suggest that she felt intimidated or was not understanding why she had been called or what the Tribunal expected of her.
The Tribunal went on to question the sister about the early background and, in particular, asked what happened when the Applicant applied for a protection visa.
The Tribunal noted that the sister had said that she had wanted to give evidence about some issues that upon which the earlier constituted Refugee Review Tribunal had commented. The Tribunal then explored the sister’s role in the preparation of the Applicant’s protection visa application.
As referred to above in these Reasons, the Tribunal did not accept the sister’s explanation as satisfactorily explaining why the Applicant had not mentioned these claims either in a general or summary way in her protection visa application where her subsequent allegations of mistreatment were so serious. As stated above in these Reasons, that was a finding of fact open to the Tribunal on the evidence and material before it and for which it gave reasons.
There is nothing on the face on the way in which the Tribunal questioned the Applicant’s sister, including its failure to ask further questions that would suggest prejudgment by the Tribunal such that the Tribunal was approaching its decision other than with a mind open to persuasion.
Accordingly, grounds 1 and 2 are rejected.

Ground 3

The Applicant’s solicitor contended that the Tribunal’s finding of the Applicant’s fabrication was not open to the Tribunal on the evidence. These Reasons have addressed that finding above in paragraphs 43 to 46. Such a finding was open to the Tribunal on the evidence and material before it and for which it gave reasons.
This ground otherwise cavils with findings of fact made by the Tribunal thereby inviting merits review of the Tribunal’s decision. This Court cannot undertake that exercise (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).
Accordingly, ground 3 is rejected.

Ground 4

The Applicant’s solicitor contended that the Tribunal failed to consider whether the Applicant would be persecuted by reason of her membership of a particular social group being young Indo Fijian women living alone in Fiji. The Applicant’s solicitor also contends that the Tribunal erred in identifying the Applicant’s claim as fear of persecution from members of the indigenous community in Fiji because she is a young woman of Indo Fijian ethnicity and because of her Hindu religion. The Applicant’s solicitor contended that critical to the Applicant’s claim was her characteristic of living alone.
A fair reading of the Tribunal’s decision makes it clear that the Tribunal considered whether the Applicant had a well-founded fear of returning to Fiji for “reasons of lack of family support in Fiji.” The Tribunal considered her claim of a fear in the context of “her situation as a young woman without immediate family support and protection and a perception that she is at risk generally from members of the indigenous Fijian community.”
The Tribunal found that the Applicant is a “young, well educated woman who expects to share in a small estate left to her by her mother.” The Tribunal also noted that the Applicant’s sister gave evidence that she had provided financial assistance to the Applicant and her mother in the past and, accordingly, found that this assistance would be available in the future. The Tribunal found that the Applicant is well educated and there would be no reason why could not seek and obtain employment on her return to Fiji. The Tribunal found that she would be able to seek rented accommodation in Fiji if she was not able to live with friends or more distant relatives. The Tribunal noted that the Applicant did not wish to return to Fiji and live on her own without family support and accepted that the Applicant would prefer to live with her elder sister who could provide emotional and financial support in Australia.

The Tribunal then went on to make its findings in relation to whether or not the Applicant’s claim of a fear of persecution was well-founded.
It is clear from the language used by the Tribunal in its decision that it understood the claim made by the Applicant and that it considered the Applicant’s claim of a fear of returning to Fiji in the context of her being a young woman living alone without family support.
In relation to the Applicant’s claim of consideration of persecution of a particular social group of young Indo Fijian women living alone in Fiji, the Tribunal again had regard to the independent country information before it in relation to young women of Indo Fijian ethnicity and Hindu religion.
The Tribunal also identified independent country information indicating that, in the past, crimes of domestic violence and sexual assault has not been treated as serious offences.
However as referred to above in these Reasons, the Tribunal found that young women of Indo Fijian ethnicity and Hindu religion are not targeted for harm by indigenous Fijians.
The Tribunal considered specifically protection of young women Indo Fijian ethnicity and Hindu religion.
A fair reading of the Tribunal’s decision makes it clear that, in its rejection of the Applicant’s fear being well-founded, the Tribunal recognised that the Applicant perceived herself as a young Indo Fijian woman at risk of sexual assault in Fiji. Implicit in that recognition and in the context of the Tribunal’s decision was recognition by the Tribunal if the Applicant was to return to Fiji she may be living on her own without family support.
There was no evidence before the Tribunal to suggest that young Indo Fijian women living alone were a particular social group. As counsel for the First Respondent contended, women with similar characteristics may have similar fears. However, that does not make them a particular social group at risk of persecution by reason of those fears (Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394).
Accordingly, ground 4 is rejected

Conclusion

The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court, commenced by way of application filed on 23 October 2006, is dismissed with costs.

I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 20 June 2007