SZGLQ v Minister for Immigration
[2008] FMCA 666
•30 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGLQ & ORS v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 666 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – application for Protection (Class XA) visa – whether proper consideration of claims – whether corroborating evidence of the applicant’s wife properly considered – whether Tribunal’s failure to enquire of the wife in regard to certain incidents denied to the applicant corroboration of his claims – whether Tribunal has a general duty to enquire – whether breach of s.425 of the Act – procedural fairness – merits review not function of judicial review – ‘Wednesbury unreasonableness’ – alleged misconduct by original migration agent –actual and apprehended bias – whether proper caution given in assessment of credibility based on inconsistencies –whether want of logic in assessment of claims –whether real chance test misapplied – assessment and weight of country information. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 424, 424A, 425, 474 |
| Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA; (2001) 206 CLR 323 Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592 WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 Abebe v Commonwealth (1999) 197 CLR 510 Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 NADR v Minister of Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 SZHPD v Minister for Immigration & Citizenship [2007] FCA 157 Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 Re Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425 SAAK v Minister for Immigration & Multicultural Affairs [2002] FCAFC 86 SZAKF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1719 NAVQ vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 3 SCAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 182 Re Minister for Immigrations & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74 SZICV v Minister for Immigration & Citizenship [2007] FCAFC 39 Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 Attorney General for the State of NSW v Quin (1990) 170 CLR 1 NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77 Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52 NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328 Chan Yee Kim v Minister for Immigration & Ethnic Affairs (1989) 109 CLR 379 SZGHS v Minister for Immigration & Citizenship [2007] FCA 1572 NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 (FC) Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361 Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 | ||
| First Applicant: | SZGLQ | |
| Second Applicant: | SZGLR |
| Third Applicant: | SZGLS |
| First Respondent: | MINISTER FOR IMMIGRATION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1287 of 2007 |
| Judgment of: | Orchiston FM |
| Hearing dates: | 12 February & 14 March 2008 |
| Date of Last Submission: | 14 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 30 May 2008 |
REPRESENTATION
| Solicitors for the Applicant: | Silva Solicitors |
| Counsel for the Respondent: | Mr G. Kennett |
| Solicitors for the Respondent: | Australian Government Solicitors |
ORDERS
The application filed on 23 April 2007 and the amended application filed on 19 July 2007 are dismissed.
The Applicant pay the First Respondent’s costs to be taxed by the Federal Court Registry.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1287 of 2007
| SZGLQ |
First Applicant
| SZGLR |
Second Applicant
| SZGLS |
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The application
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth), as amended, (the Act) seeking review of the decision of the Refugee Review Tribunal (the Tribunal) handed down on 27 March 2007 which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant Protection (Class XA) visas to the applicants.
Background
The first applicant (the applicant) was born on 10 February 1961.
The second applicant (the applicant’s wife) was born on 1 May 1969.
The third applicant, the applicants’ daughter (the child) was born on
30 December 1981.
The applicants claim to be nationals of Fiji, of Fijian Indian ethnicity, and of Hindu faith.
The applicant first arrived in Australia on 14 December 1988 on a Fijian passport issued in his own name. The applicants have travelled to and from Fiji on a number of occasions since this time.
The applicants lodged an application for protection visas on 3 January 1990 on the basis that the applicant was persecuted in Fiji during and after the 1987 military coup because of his political opinion as a supporter of the Fiji Labor Party and his Hindu religion.
Only the applicant made specific claims under the Refugee Convention (see Legislative framework). His wife and child relied on their membership of his family.
I accept that the first respondent accurately summarises the history of their application for refugee status as follows:
·The Applicants… applied for what was then termed refugee status on 3 January 1990. The Applicant father… was the principal applicant in that application and the other Applicants (his wife and daughter) were included as family members.[1] A delegate of the Minister refused that application on 10 December 1991 and the Applicant applied for review by the Refugee Status Review Committee. The application was transferred to the Tribunal when it commenced operations in July 1993.
·In a decision dated 28 June 1995, the Tribunal affirmed the delegate’s conclusions in relation to the Applicants, and varied the delegate’s decision so that it would have effect as a decision to refuse a protection visa (“the 1995 decision”).[2]
·A new protection visa application was lodged on 1 August 1995, again including all members of the family but listing the applicant wife as the primary visa applicant.[3] The Applicant wife made claims to be a refugee,[4] while the Applicant applied as a member of the family unit.[5] This application was refused by a delegate on 24 October 1995,[6] a decision affirmed by the Tribunal in a decision dated 22 October 1996 (“the 1996 decision”).[7] The Tribunal was constituted by the same member as had made the 1995 decision. It is apparent from the Tribunal’s reasons that it did not regard this second application as adding anything to the claims advanced by the Applicant in the earlier proceeding.[8]
·It is understood that the 1996 decision was the subject of an application to the High Court (forming part of the so-called Muin and Lie class action), which was discontinued in 2004. That issue does not need to be pursued.
·The Applicant filed an Application in this Court on 2 June 2005, for orders setting aside the 1995 decision.[9] An Appeal from the judgment of this Court [to the Federal Court] was successful, and on 1 November 2006 orders were made setting that decision aside [and remitting the matter to the RRT to be determined according to law].
·The Tribunal held a further hearing,[10] considered further material (including statements by the Applicant) and handed down a new decision, again affirming the refusal of a visa, on 13 March 2007 (“the 2007 decision”).
[1] See the Annexure to the Affidavit of the Applicant filed 17 January 2008.
[2] RD 80.
[3] RD 96.
[4] RD 107.
[5] RD 121.
[6] RD 158.
[7] RD 189.
[8] RD 193.
[9] RD 196 [1].
[10] RD 241.
On 10 December 1991 the delegate refused to grant the applicants’ protection visas on the basis that they were not persons to whom Australia had protection obligations under the Refugees Convention.
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 (the Convention).
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 particular 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 the persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceedings
On 2 January 2007, the Tribunal sent a letter to the applicant’s solicitor inviting the applicants to appear before it on 19 February 2007 to give oral evidence and present arguments. The applicant and his wife gave evidence at the hearing. Their adviser also attended and made submissions on their behalf.
The applicants’ claims and evidence (Court Book (CB))
I accept that the first respondent accurately summarises the applicants’ claims and evidence, as follows:
Briefly, the Applicant claimed (and the Tribunal accepted) that he was of Indian ethnicity and a Hindu. He claimed to have a well founded fear of persecution on those grounds and because he was a member or supporter of the Fiji Labour Party. The Applicant claimed, among other things, that he had been injured in a riot at the time of the 1987 coup,[11] to have suffered damage to his house and car,[12] to have had a home-based business destroyed,[13] to have been retrenched in 1988 because of his race,[14] and to have been teased and harassed by ethnic Fijians.[15] He also claimed that his wife and daughter had been mistreated and his wife’s jewellery stolen.[16]
The wife’s claims and evidence (CB 278)
[11] RD 270.
[12] RD 270, 273.
[13] RD 273, 274-275.
[14] RD 273, 274.
[15] RD 273.
[16] RD 273, 274, 275.
The applicant’s wife gave evidence that:
·she and the child were molested by soldiers who became very violent because of the applicant being an active supporter of the Labour Party and because they were Indians. They also stole her necklace
·thereafter, the family could not leave the house, stones were continually thrown at their house by Fijians who told them to go back to India
·her explanation for why they remained in Fiji after these incidents until December 1988, was that they had to mind their house which had been damaged and they were hoping things would improve and that at times they had hidden with a neighbour.
The Tribunal’s findings and reasons (CB 289–294)
The applicant claimed (and the Tribunal accepted) that he was of Indian ethnicity and a Hindu. In relation to the applicant’s claims of past harm, the Tribunal:
a)did not accept his claim of retrenchment, as it considered that this claim had not been raised until the Tribunal hearing in November 1994 and the various versions of events provided by the applicant were not consistent;
b)did not accept his claim, which was raised for the first time at the 2007 Tribunal hearing, that his house had been partially destroyed by fire before the 1987 coup on the basis that such an event would have been “a dramatic and highly memorable incident for him, and would have been clearly significant for his claim to fear harm at the hands of the ethnic Fijians”;
c)did not accept his account of having been assaulted in 1987 by soldiers, who, he claimed, also molested his wife and daughter, as it considered that this claim “showed signs of embellishment over the course of his various submissions and statements at various stages since his original protection visa application;
d)accepted that the applicant had suffered a broken jaw in a riot, but, on the basis of what it considered were inconsistencies in other parts of his claims, did not accept that his house had been stoned, nor that he had been prevented from worshipping, nor that he had been intimidated;
e)was not satisfied that the applicant had ever been a member or strong supporter or that he had any political profile in Fiji as someone whose political opinion favoured the Labor Party. On the basis of its lack of satisfaction with the accuracy of his claims, and his inconsistent evidence on the matter, the Tribunal did not accept that he had given a credible account of his relationship with the Party;
f)rejected the applicant’s evidence that he and his family were prevented from worshipping as Hindus in Fiji, and on the basis of country information, was not satisfied that they would be so prevented from observing Hindu religious and cultural practices if they were to return to Fiji;
g)in light of the applicant’s delay in leaving Fiji and in applying for protection, did not consider that he had had a genuine fear of persecution when he came to Australia.
For these reasons, the Tribunal found that there was not a real chance the applicants would suffer serious harm from their stated or perceived persecution in Fiji. The Tribunal was therefore not satisfied that the applicants had a well-founded fear of persecution if they were to return to Fiji for reasons of real or imputed political opinion, ethnicity, religion, or for any other Convention reason, now or in the foreseeable future.
The proceedings before this Court
The applicants filed the application in this Court on 23 April 2007 setting out 6 grounds of review of the Tribunal’s decision. The applicants filed an amended application on 19 July 2007 setting out
5 grounds of review.
The applicant, by affidavit of 1 June 2007, provided to the Court a transcript of the Tribunal hearing of 19 February 2007.
Mr Silva appeared at the hearing on 12 February 2008 and 14 March 2008 on behalf of the applicants. Mr Kennett of counsel appeared for the first respondent.
Grounds of the application
Mr Silva confirmed at the hearing that only the amended application was relied upon by the applicants (Court transcript, 12 February 2008, p 3).
Grounds of the amended application
The grounds of the amended application are:
(1)The Tribunal made jurisdictional error in the way it dealt with (a) the evidence given by the applicant wife before the Tribunal and (b) the appearance by the applicant wife to give evidence before the Tribunal as stated below.
Particulars
(i)At CB 289.6-290.2 (Page 23.6- 24.2) - The Tribunal failed to consider the corroborating evidence given by the Applicant’s wife in relation to what happened when the army visited his home and specifically in relation to the attempted sexual assault and serious harassment of the baby daughter, before rejecting the Applicant’s evidence.
(ii)The Tribunal also failed to inquire from the wife about several other incidents the husband alleged which the Tribunal found to be not true. The Tribunal is obliged to inquire where particular circumstances require such inquiry.
(iii)Repeat what is stated in (ii) above. Further in this sense the Tribunal also contravened s425 in that the invitation is an empty shell or hollow gesture.
(iv)The applicants were denied procedural fairness as the wife was not given the opportunity to give evidence to corroborate various claims made by the husband.
(2)The Tribunal made jurisdictional error in the way it dealt with the alleged inconsistency between the information provided in the initial Protection Visa Application and that provided later by the applicant.
Particulars
(i)The Tribunal found inconsistencies even where none existed. Most of the claims could be linked to what was stated in the initial PVA application. But the Tribunal found otherwise.
(ii)In contravention of s425 which section foresees evidence being given at a tribunal hearing the Tribunal held that later evidence given at both hearings is either embellishment or per se evidence of recent invention. There is no purpose in the hearing if all what an applicant say is treated as recent invention in a hearing.
(iii)The Tribunal failed to consider the impact of an incompetent and unscrupulous migration agent on the initial protection visa application. This is critical and it could have explained some of the alleged inconsistencies. Refer transcript pages 34-35.
(iv)The Tribunal failed to appreciate that the submission of 8/8/91, 7/01/92 (attached to the RRT application) and 21/12/03 were all exclusively focussed on country situation in Fiji and did not deal with the applicant’s individual claims and therefore they can not be evidence of applicant inventing things later.
(v)On the basis of inconsistencies with information provided in the initial PVA, or on the basis of the delay in raising such claims, the Tribunal failed to direct itself - as it was obliged to - as to the caution required to be exercised before rejecting an applicant's claims for such reasons. There is a need for the Tribunal to exercise care in relying on an inconsistency between the first application and later evidence as the foundation for an adverse credit finding is recognised by the authorities and by text writers. It also reflects modern research concerning the proper approach to the assessment of credit by courts. The Tribunal at made several findings against the applicants based simply on delay without instructing itself as to the caution required before making such findings.
(3)The Tribunal made jurisdictional error as it rejected some of the applicant’s claims because it was not satisfied with some other aspects of his case. The Tribunal’s rejection of those claims were affected by "gross error, manifest illogicality and unreasoned perversity" as illustrated below.
Particulars
The Tribunal stated starting at page 24.2 (CB290.2) of its decision that:
The Applicant claims to have suffered a broken jaw when he was attacked in a riot at his workplace at the time of the 1987 coup. In contrast to his other claims of harm, this claim has been advanced consistently from the time of his original application for protection and I accept it as true. However, as noted I am not satisfied that the Applicant was ever retrenched from his work, that his house was partially burned before the 1987 coup or that he and his family suffered serious harm when soldiers came to their house a week after the coup. Given that these are key aspects of the harm he claims he and his family suffered in Fiji I am not satisfied as to the credibility of his other claims to have suffered harm. Specifically, I am not satisfied that ethnic Fijians stoned his house regularly or continually, that the Applicant and his wife were hindered or prevented from worshipping as Hindus, that their temple was burned down, that they were intimidated so that they could not leave their house or that they were subjected to threats.
The Tribunal accepted that the applicant suffered broken jaw because it was stated in the initial PVA application. The Tribunal rejected some of the applicants’ claims because they were not stated in the initial PVA application. Based on this rejection the Tribunal rejected some further claims but these further claims were also stated in the initial PVA application.
(4)The Tribunal made jurisdictional error as it failed to bring an impartial mind when it dealt with the Applicants’ claims. It thus caused apprehension of bias in a way that a reasonable observer, knowing the relevant facts, might conclude that the decision-maker might have been affected by pre-judgment or prejudice against the applicant.
Particulars
(i)The Tribunal’s approach overall shows that it was determined to find whatever it can against the applicants in spite of applicants providing thorough and detailed explanation on various matters.
(ii)The alleged weaknesses and inconsistencies in the appellant's evidence, relied upon by the Tribunal, were objectively insignificant, superficial and erroneous.
(iii)There was an element of misrepresentation/ misconstruction of various pieces of evidence.
(iv)Restate all the particulars stated under grounds 1, 2 & 3 as further basis for apprehension of bias.
(5)The Tribunal made jurisdictional error as it misapplied the real chance test in determining that the applicants did not have a `well founded fear of persecution' because of a future coup.
Particulars
(i)The Tribunal was willing to accept that the applicant husband was persecuted after a coup CB 292.8 (page 26.8) but said that there is no real chance it will happen in the future. The Tribunal failed to consider the history of past coups in assessing whether there was a possibility not far fetched and not insubstantial that such a coup could occur. It was not open to the Tribunal to make a finding that a coup will not occur in the reasonably foreseeable future. The Tribunal appears to have required a probability rather than possibility of a coup when considering the real chance of a further coup.
The Tribunal stated at CB 293.6 (page 27.6) that:
On the information before the Tribunal I am not satisfied there is any reason to believe that another coup involving the overthrow of the present interim government and violence against the Fiji Indian Community will occur in Fiji in the foreseeable future. While I accept that this may be a concern for the Applicant, and for other Fiji Indians, I am not satisfied that the fears he has expressed about this have a basis in objective fact or that they are more than simple speculation.
(ii)The Tribunal failed to take into consideration a critical piece of country information provided by the Applicant about threat to Bainimarama which adds an important aspect of uncertainty and the possibility of a further coup. The Tribunal stated at CB 293.6 (page 27.6) of its decision that:
The only substantiation of the Applicant’s claims in this area is a document downloaded from an internet blog which contains comment from a number of contributors about the political situation in Fiji and Commodore Bainimarama’s policies. As put to the advisor at the second Tribunal hearing, the contributors of these opinions are anonymous and there is no way of determining their qualifications or the knowledge they bring to bear on the subject. In these circumstances I am unable to attach any evidentiary weight to this document. Other independent country information indicates that the Great Council of Chiefs has, in fact, altered its earlier position of opposition to the coup and the interim government, and that the Methodist and Catholic churches have expressed their support.
This is an internet news report dated 30 December 2006 from a website called titled and it appears at CB231:
Fiji warriors threaten to kill Bainimarama.
Ground 1 of the amended application.
Particular (i)
Particular (i) of this amended ground states that the Tribunal failed to consider corroborating evidence given by the wife about the visit of the army to their house and attempted assaults by soldiers and serious harassment of the child before rejecting the applicant's evidence as untruthful.
The applicant’s written submissions on this matter, set out at paragraphs (9)-(14), include the transcript of the wife's evidence at the Tribunal hearing and extracts from WAEE v Minister for Immigration & Indigenous Affairs [2003] FCAFC 184 at [46]-[47].
In its Findings and Reasons, the Tribunal set out why it rejected the applicant’s claims on this matter, principally because the claims of assault were not included in the original application for a protection visa but were subsequently embellished by the applicant, in stages, over time (CB 289-290). The Tribunal then concluded:
Given the applicant's failure to mention the harm in his original application for protection, and his progressive elaboration of aspects of it right up to the time of the second Tribunal hearing, I am not satisfied that he and his family did suffer the harm he claims, and I reject the evidence concerning it [emphasis added].
In its summary of the Claims and Evidence, the Tribunal specifically referred to the evidence given by the wife at the Tribunal hearing on the alleged visit by the soldiers to the house and their alleged assault on herself and the child (at CB 278).
Whilst the Tribunal did not specifically refer to this evidence of the wife in the above quoted passage from its Findings and Reasons, I do not consider that its failure to do so, permits an inference to be drawn that the evidence was not, in fact, considered by the Tribunal. Rather, I consider that it may reasonably be inferred that the reference by the Tribunal to rejecting "the evidence concerning it" includes the evidence of the wife, as earlier referred to by the Tribunal.
In any event, I do not consider that the Tribunal was obliged to go further and specifically refer to the evidence of the wife in its Findings and Reasons, or to make specific separate findings on her evidence on this matter. As the Full Federal Court in WAEE at [46] observed:
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 reason. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. 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 (cf Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA; (2001) 206 CLR 323 at [87]-[97]) 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…
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
Applying the above reasoning to the present case, I consider that the Tribunal identified in its decision the evidence of the wife on the issue, but that it was unnecessary to make a particular finding on the matter on the basis that it was subsumed in findings of greater generality, in particular as to the Tribunal’s rejection of the credibility of the claims advanced by the applicant. At its highest, the wife’s evidence corroborated the evidence of the applicant concerning the harassment of the family by soldiers in 1987 in the context of the Tribunal rejecting the applicant’s claims.
As relevantly observed by the High Court in this regard in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 where the Tribunal is of the opinion that an applicant’s credibility has been impugned it can reject the corroborating evidence:
It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness: per Gleeson CJ at [12].
And:
In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration : per McHugh and Gummow JJ at [49].
Contrary to the applicant’s assertion, I am satisfied therefore that a fair reading of the Tribunal’s decision demonstrates that the Tribunal did not fail to consider the evidence given by the wife on these matters before rejecting the applicant's evidence as untruthful. Rather, the Tribunal provided proper and adequate reasons for its decision in this regard.
Particulars (ii), (iii) and (iv)
Particulars (ii), (iii) and (iv) state that the Tribunal was obliged to inquire from the wife about several other incidents alleged by the applicant and which the Tribunal found not to be true. Failure to do so, according to the applicant, contravened s.425 of the Act and the applicants were denied procedural fairness by the wife not being given the opportunity to give that evidence.
In this regard the applicant submitted (at paragraphs 25-28 of its written submissions) that, in the light of the High Court decision in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592, in particular at [33] and [47], that:
where...there are specific aspects of an applicant’s account, that the tribunal considers may be important to the decision and may be open to doubt, the tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted. This equally applies to applicant wife who appear as corroborating witness in the sense it could have checked the truthfulness.
The Tribunal did not identify the critical issue upon which its decision turned in order that the applicant wife might present evidence about it. We submit that it is mandatory for the Tribunal to question the applicant wife on matters affecting the applicant’s credibility and, in particular, to question him about extensive claims of past persecution. However, that, examination of the transcript showed that, in the course of the hearing, the Tribunal barely addressed that critical question. As a result, the applicant wife was denied the opportunity properly to put her full evidence.
In Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 (‘S20’) the High Court held (Gleeson CJ at [12] and McHugh and Gummow JJ at [49]) that if the Tribunal is convinced that an applicant’s credibility is severely discredited it can reject the corroborating evidence. However no Court has found that the Tribunal is entitled not to hear corroborating evidence of extensive claims of persecution and then hold them to be fabricated. Even if it was entitled to reject the witness’s evidence on that issue it was only entitled to do that after hearing her evidence on that issue. Further the applicant’s evidence was rejected based on delay and there was no instance in which the applicant was found to be lying unambiguously.
All the above demonstrates that the Tribunal’s dealing with the applicant wife’s evidence and how it dealt with her appearance resulted in constructive failure by the Tribunal to exercise jurisdiction.
The applicant also submitted that, given that common law procedural fairness principles apply to this case (as the relevant Tribunal review application was made on 7 January 1992), the wife would have had a legitimate expectation that since the applicant had given detailed evidence on these matters, the Tribunal would ask her if there were any issues of concern.
The applicant referred to WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171, where the Full Court, at [33] stated that:
The Tribunal must give the appellant an opportunity to appear before it and give evidence: s.425 of the Act. If an appellant seeks to give evidence, the Tribunal is under a duty to raise plainly and unambiguously the critical issues on which his or her application might depend so that he or she may have an opportunity of being heard on them.
In considering these submissions, I note that the Tribunal member commenced the examination of the wife by asking her:
What evidence did you want to give? (Tribunal transcript, p 49).
The wife then answered questions raised by the Tribunal on various matters (pp 49-52) which, in summary, concerned the alleged assault on herself and the child, the alleged stone throwing and other harassment, her involvement and her husband's involvement in the Labor Party, and whether there were any other reasons for the harassment or attacks.
The Tribunal then asked the wife:
Is there anything more you want to say? (at p 52)
to which she responded with a further statement.
The Tribunal (at p 52) then asked the applicant’s wife about the delay in leaving Fiji, to which she replied, and the Tribunal then asked her a further question in response to her answer.
The Tribunal then asked her adviser, (Mr. Tony Silva), whether he thought there were any questions which the Tribunal needed to put to the wife, to which the adviser replied:
I don't think I wish you to ask any more further questions (at pp 52-53).
I am satisfied, having read the relevant passage from the Tribunal transcript that, contrary to the assertions in the particulars, the applicant’s wife was given sufficient opportunity by the Tribunal to give evidence to corroborate various claims made by the applicant.
At no stage did the Tribunal seek to prevent her from giving evidence nor did it attempt to foreclose her whilst she was giving that evidence. It also specifically invited her, and very tellingly her adviser also, whether she wished to provide any other evidence or be asked any more questions. In these circumstances, I do not consider that any legitimate expectation the wife may have had that she be provided with an opportunity to give evidence on these matters was denied to her.
In the applicant’s oral submissions (Court transcript, 12 February 2008, pp 9-13), the applicant referred to a number of matters about which it submits the Tribunal failed to inquire from the wife and which the Tribunal found to be untrue.
The first matter concerns the applicants’ delay in leaving Fiji.
I consider, having read the relevant part of the Tribunal transcript, (at p 52), that this matter was in fact raised directly by the Tribunal with the wife. In this regard, it was a matter for the Tribunal as to how it phrased the questions put to her, but it was clear from the question asked that the Tribunal was concerned to know why the applicants had stayed in Fiji for a year and a half after the 1987 coup. It was also clear from the Tribunal's follow-up question that the Tribunal had doubts about the explanation she offered in her response. I do not consider that the Tribunal had to go further and advise her of the answer earlier given by the applicant to the Tribunal and then ask her to respond to that answer. I further consider that she was given sufficient opportunity to provide as much information as she wished on the matter.
The applicant further refers to the matter of the Tribunal’s alleged "lack of interest" in the evidence of the applicant’s wife. The transcript of the hearing provides no indication other than that the Tribunal acted with all due courtesy to the applicant’s wife. I further see no lack of interest simply because the Tribunal provided her with an opportunity to answer questions in her own way, with various follow-up questions, and without subjecting her to a drawn out examination or intensive cross-examination.
Furthermore, as relevantly identified above, both the wife and her adviser were specifically asked, respectively, by the Tribunal whether she wished to provide any other evidence or be asked any more questions.
The applicant also referred to other claimed incidents of violence, where it asserted that the Tribunal did not want any detail from the wife, though she was alleged to be present at the time. In this regard, the Tribunal transcript indicates that after a discussion between the Tribunal member on the incident involving the alleged assault on her and her child, the Tribunal asked, (at p 50):
So what else happened apart from this incident?
In reply the wife referred to stone throwing and harassment. The Tribunal asked her various follow-up questions on her answers and also asked her more general questions which gave her ample opportunity to explain the situation in Fiji at the relevant time, namely:
Why were they doing this to you? (p 50)
Well why did those people attack you? (p 51)
In posing both specific and general questions to the wife, I consider that the Tribunal conducted a fair and proper inquiry of that witness. As stated above, I do not consider that the Tribunal had to go further and advise her of the answers earlier given by the applicant to the Tribunal and then ask her to respond to those answers.
The applicant further argued in this regard that the Tribunal had “a duty to enquire” (Court transcript p 12). I do not accept this submission.
It is well settled that although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 at 288), the relevant facts of an individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the decision-maker to establish the relevant facts.
The Tribunal is not required to make the applicant’s case for him or her: Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169-70; SZBEL at [40]; Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [57] and [1]; WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [73]. As stated by the Full Federal Court in Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76]:
In an inquisitorial process, it was for the respondent to put whatever evidence or argument he wished to the decision-maker to enable her to reach the requisite state of satisfaction.
As also observed by the High Court in Abebe v Commonwealth (1999) 197 CLR 510 at [187]:
It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
Furthermore, whilst the Tribunal has the power under s.424(2) to “get any information that it considers relevant” and to “invite a person to give additional information”, these powers are permissive not prescriptive: Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20].
In this case, it was open to the wife, as well as the applicant and their adviser, to put forward whatever evidence they thought appropriate to support their claims. It was clearly open to the wife, if she so chose, to provide or tender corroborative evidence to the Tribunal on some or all of the past claimed events. The wife was not denied the opportunity to give that evidence. Given this, I accept the submission by the first respondent that:
having chosen (for whatever reason) not to tender corroborative evidence, the applicant cannot now complain that the Tribunal did not seek it.
In regard to the alleged breach of s.425 of the Act, I consider that the transcript of the hearing demonstrates that the Tribunal clearly identified to the applicant the critical or determinative issues upon which the decision was likely to turn: SZBEL at [35]-[36]. It is further evident that the Tribunal gave the applicant sufficient opportunity to give evidence and make submissions on each of the determinative issues.
I do not consider that it was incumbent on the Tribunal to go further and identify each of these determinative issues to the wife, given that she made no independent claims in her own right, but relied on her membership of the applicant’s family. As recognised above by the applicant in its submissions, her evidence was given in a corroborative capacity.
I am satisfied therefore that the Tribunal complied with its statutory obligations pursuant to s.425(1) in accordance with the principles set out in SZBEL at [33]-[48] before reaching its conclusion in relation to the decision of the delegate under review. In these circumstances, I consider that the Tribunal accorded the applicant procedural fairness as required of it pursuant to s.425(1) of the Act.
Overall, contrary to the applicant’s submission, I am satisfied that there was no constructive failure by the Tribunal to exercise jurisdiction in the way in which it dealt with the wife’s evidence and her appearance before it.
Accordingly, for the reasons stated above, Ground 1 of the amended application is rejected.
Ground 2 of the amended application.
The applicant asserts that the Tribunal fell into jurisdictional error in the way in which it dealt with the alleged inconsistency between the information provided in the initial protection visa application and the information later provided by the applicant.
The applicant’s written submissions on this ground are set out at paragraphs (30)-(70). The applicant submits that:
The complaint here is that the main reason that the Tribunal rejected the applicant’s claims was due to its conclusion that those claims were not stated in the initial PVA application. However a look at the initial PVA application shows that those claims were made. We submit respectfully that the Tribunal found inconsistencies where none existed. The Tribunal took matters into account which did not exist. Most of the claims could be linked to what was stated in the initial PVA application. But the Tribunal found otherwise (at paragraphs (30)-(31))
and that:
This PVA application contradicts many of the bases of the finding of the Tribunal. The Tribunal found that the applicant failed to mention several incidents in the initial PVA, but the actual PVA shows that those incidents were referred to (at paragraph (35)).
The applicant identified the following seven specific matters upon which evidence was given at the Tribunal hearing in support of these submissions:
Alleged partial burning of the house
The first matter concerns the claimed partial burning of the house owned by the father of the applicant and in which the applicant resided with his family (the applicant's house) prior to the 1987 coup.
The applicant’s written submissions on this matter are set out at paragraphs (36)-(37). In support, the applicant quoted from the Tribunal decision (emphasis in bold added by the applicant):
The Applicant claimed at the first Tribunal hearing that he had not suffered any harm in Fiji before the 1987 coup and, as put to him in the Tribunal’s letter of 27 February 2007, he did not mention having suffered any such harm in his application for protection, his review application or any other document submitted by him to the Department or the Tribunal before the second Tribunal hearing. At the second Tribunal hearing, however, he claimed that his house was partially burned in 1986 or 1987, before the coup, and that another attempt was made to burn it following the coup.
Once more, the partial destruction by fire of the Applicant’s house before the coup, had it occurred, would have been a dramatic and highly memorable incident for him, and would have been clearly significant for his claim to fear harm at the hands of ethnic Fijians. Having considered his response to the Tribunal’s letter on this point I am not satisfied that he has provided a satisfactory explanation for his failure to mention it before the second Tribunal hearing. I am not satisfied that he was alluding to this incident in his submission of 26 February 2004 where it is clear enough that he is claiming that his father’s house was burned at some point following the 1987 coup. I am not satisfied that his house was, in fact, partially destroyed by fire before the coup as he claims and I reject his evidence concerning it.
The applicant then referred to page 34 of the original protection visa application (PVA) (which is Attachment “A” to the affidavit of the applicant, filed 23 April 2007) where, in answer to Q. 78 which asked:
Have you or any member of your close family (father, mother, brother, sister, wife, husband, son or daughter) ever suffered confiscation or destruction of property in your home country,
the applicant ticked the box ‘Yes’ and stated as follows:
Our Residential premises and cars were damaged and destroyed partly (CB 270).
I consider that it was open to the Tribunal to conclude that a general reference by the applicant in the PVA to his residential premises and cars being “damaged and destroyed partly” with no further particulars as to when or how the damage occurred, or its nature or extent, does not suffice to constitute a specific claim about his house having been partially burnt down.
I also note in this regard various passages in the transcript of the Tribunal hearing where the matter of whether the applicant had suffered any harm prior to the 1987 coup, or whether his house had been burnt, was put to him and he appeared to confirm, and certainly did not dispute, that he had not raised these matters prior to the present Tribunal hearing:
[Tribunal] Yes, but at the first Tribunal hearing you were asked whether you suffered any harm before the [1987] coup and you said no, you hadn't.
[Applicant] It was my first time in the Tribunal and I was a bit scared and there were quite a few things which I left out and I forget quite a few things. I was very stressed. (Tribunal transcript, p29)
and:
[Tribunal] When you asked for protection in Australia at first in your first application back in 2000 there was no mention at all of your father's house, the house where you were living being partly burned down. Why is that?
[Applicant] I had told everything to my agent but he just said, give me a piece of paper and said can you sign it and I don't know what he put and what he didn't put (p 31).
Furthermore, the evidence of the applicant’s wife to the Tribunal concerning damage to the house was equally lacking in specificity:
All the house was destroyed, [the applicant] was trying to fix that … (at p 52).
In these circumstances, I consider that it was open to the Tribunal to conclude that this specific claim concerning the “burning” of the applicant's house had not been articulated previously, and accordingly it was entitled to draw an adverse inference as to credibility of the applicant on this matter.
The applicant’s submission in this context concerning the alleged misconduct by the applicant’s original migration agent, is dealt with below.
Alleged assault by soldiers
The second matter concerns the alleged assault by soldiers. The applicant’s written submissions on this matter are set out at paragraphs (38)-(39). In support, the applicant quoted from the Tribunal decision (emphasis in bold added by the applicant):
As put to the Applicant at the second Tribunal hearing and in writing, his claims concerning the incident when soldiers came to his house a week after the 1987 coup show signs of embellishment over the course of his various submissions and statements to the Department and the Tribunal since his application for protection in 1990
In his application for protection the Applicant claims simply that soldiers came to the house searching for guns and ammunition, that they found nothing and that they then went away. This account, with its absence of any reference whatsoever to harm, remained unchanged for four years, until the first Tribunal hearing in 1994, when the Applicant claimed that the soldiers stole his wife’s jewellery and sexually molested her. Claims that the soldiers damaged items in his house were added in his statutory declaration of 20 December 2006. Claims that soldiers found and destroyed posters and banners in his workshop, beat the Applicant and tortured his infant daughter were added in his statutory declaration of 17 February 2007 and then repeated by him at the second Tribunal hearing.
Such serious harm inflicted by soldiers, had it occurred, could reasonably be expected to have been of great importance in the Applicant’s life and to be central to his claim to be a refugee in Australia. At the second Tribunal hearing he cited this harm as a major factor in his decision to leave Fiji. I have, again, considered his claim that he was badly served by an incompetent and unscrupulous agent when he first applied for protection but I am not satisfied that this explains why such obviously central information would have been omitted from his application for protection had he ever mentioned it to his agent. Nor am I satisfied as to the plausibility of the claim that the agent counselled him against mentioning this harm because it might land him in trouble if he were to return to Fiji. Given the Applicant’s failure to mention the harm in his original application for protection, and his progressive elaboration of aspects of it right up to the time of the second Tribunal hearing, I am not satisfied that he and his family did suffer the harm he claims, and I reject his evidence concerning it.
The applicant then referred to page 35 of the PVA, where in answer to Question 79, which asked:
Have you read the United Nations Convention definition of a refugee, please provide a comprehensive statement of your reasons for your claim for refuge status in Australia,
the applicant wrote (emphasis in bold added by the applicant):
After the Fiji military Coup of 1987, we still decided to remain in the country but as times passed we found that Indians had a very grim future. This was especially in part where I was staying.
As mentioned in the application, I was staying with my family in Suva and every next day the situation in the society, and in every walks of life became worse. The Fijians incited by the opposition Parliamentarians threw stones, damaged the cars in the public, snatch the gold jewelleries from women’s body in the broad daylight.
Several times my wife became the target of violence and terrorism. We could not go to work during the day as there was always danger from these terrorist at home.
Whilst the applicant has referred to the answer given to question 79 above, I note however that the applicant ticked the "no" box in response to question 69 in the PVA, which asked:
Have you or any member of your close family (father, mother, brother, sister, wife, husband, son or daughter) ever suffered torture, mental or physical mistreatment.
I also note that, in the applicant's written statement later in the PVA, he made reference to some general incidents of violence, for instance, "several hundred Indians were bashed and physically mal-treated" but made no mention of any alleged assault by soldiers.
The Tribunal (at CB 289-90) noted the manner in which it considered the details of the incident in which soldiers allegedly came to his house had become embellished over time. In the view of the Tribunal, the applicant originally claimed that the soldiers had only searched for guns and ammunition and then went away. The applicant made no reference to assault or other physical harm. Subsequently, and through a series of stages over a period of years as summarised by the Tribunal, the applicant claimed that the soldiers had damaged items in the house and had mistreated members of the family.
The Tribunal considered, but did not accept, the explanation put forward by the applicant that the reason the information was not disclosed earlier lay with his "incompetent and unscrupulous agent":
I have, again, considered [the applicant's] claim that he was badly served by an incompetent and unscrupulous agent when he first applied for protection but I am not satisfied that this explains why such obviously central information would have been omitted from his application for protection had he ever mentioned it to his agent. Nor am I satisfied as to the plausibility of the claim that the agent counselled him against mentioning this harm because it might land him in trouble if he were to return to Fiji (CB 290).
I consider that the Tribunal properly considered all relevant matters concerning the applicant’s claims about the alleged personal harm.
I accept that it was open to it to reach its conclusion that:
Given the Applicant's failure to mention the harm in his original application for protection, and his progressive elaboration of aspects of it right up to the time of the second Tribunal hearing, I am not satisfied that he and his family did suffer the harm he claims, and I reject his evidence concerning it.
Merely because the applicant disagrees with the Tribunal’s adverse finding of credibility does not amount to an error of law. The Tribunal’s finding in this regard is a finding of fact par excellence and not open to review by this Court: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). It is not the function of this Court to engage in impermissible merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]). Moreover, there is no error of law, let alone jurisdictional error in the Tribunal making a wrong finding of fact: Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 560 [137].
Alleged hindrance of worship
The third matter concerns the alleged hindrance of worship. The applicant’s written submissions on this matter are set out at paragraphs (40)-(42). In support, the applicant quoted from the Tribunal decision (emphasis in bold added by the applicant):
The Applicant claims to have suffered a broken jaw when he was attacked in a riot at his workplace at the time of the 1987 coup. In contrast to his other claims of harm, this claim has been advanced consistently from the time of his original application for protection and I accept it as true. However, as noted I am not satisfied that the Applicant was ever retrenched from his work, that his house was partially burned before the 1987 coup or that he and his family suffered serious harm when soldiers came to their house a week after the coup. Given that these are key aspects of the harm he claims he and his family suffered in Fiji I am not satisfied as to the credibility of his other claims to have suffered harm. Specifically, I am not satisfied that ethnic Fijians stoned his house regularly or continually, that the Applicant and his wife were hindered or prevented from worshipping as Hindus, that their temple was burned down, that they were intimidated so that they could not leave their house or that they were subjected to threats.
The applicant then referred to page 28 of the PVA where, in answer to Q. 72, which asked
Have you or any member of your close family (father, mother, brother, sister, wife, husband, son or daughter) ever suffered as a result of practising your religion or have you ever been prevented from practising your religion?
the applicant ticked the box ‘Yes’ and stated as follows:
In general whole of Indian community suffered.
I note that the Tribunal acknowledged the claim by the applicant that the whole of the Fiji Indian community was prevented from practising their religion (CB 270). However the Tribunal rejected the applicant's personal claims regarding his family being hindered in worship, on the basis of its finding that the applicant lacked credibility in regard to all of his claims:
Specifically, I am not satisfied that … the Applicant and his wife were hindered or prevented from worshiping as Hindus…(CB 290).
As stated above, the Tribunal’s finding as to the credibility of the applicant, and the conclusions reached on the basis of such a finding, are matters for the Tribunal alone to determine. As the Full Federal Court observed in NADR v Minister of Immigration & Multicultural &Indigenous Affairs [2003] FCAFC 167 at [9]:
The finding of facts, including the making of findings of credibility, was uniquely within the jurisdiction of the Tribunal and not within the jurisdiction of the Court. It would have been in contravention of Minister for Immigration &Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 for the Court to have engaged in merits review.
I am satisfied that the Tribunal’s findings regarding the matter of hindrance in worshipping were open to it on the evidence before it and, contrary to the applicant’s assertion, did not involve any misreading by the Tribunal of the visa application.
Alleged retrenchment
The fourth matter concerns the alleged harsh treatment by the Tribunal in regard to the applicant's claim of retrenchment. The applicant’s written submissions on this matter are set out at (43)-(52). In support, the applicant referred to the following passage from the Tribunal decision (emphasis in bold added by the applicant):
I have considered the Applicant’s claims that he became confused over dates and that his first migration agent did not incorporate into his protection visa application all the information given to him. However, I am not satisfied that these claims satisfactorily explain the marked inconsistencies over the dates or the Applicant’s failure to make any prior reference to such an obviously important and relevant incident in his application for protection or at any of the other opportunities available to him before the first Tribunal hearing. I am not satisfied that the Applicant was, in fact, retrenched and I reject his evidence on this issue.
The applicant argued that the conclusion reached by the Tribunal, concerning what it described as “marked inconsistencies” in the dates provided by the applicant, was an exaggeration on the part of the Tribunal, namely that:
The Applicant claimed in PVA that he was employed up to 1988. No month is indicated therefore the implication is that if retrenchment occurred it must have been in 1988. He claimed in the first Tribunal hearing he was retrenched in July 1988: CB 288.8. He claimed in December 2006 that he was retrenched in
The applicant also referred to a passage from the transcript of the Tribunal hearing, before conceding that the matter of retrenchment had not been raised prior to the first Tribunal hearing:
The Tribunal referred to absence of reference to retrenchment in the PVA or any opportunities before the First Tribunal hearing. It is accepted that there was no reference to retrenchment in the PVA. However first tribunal hearing was the first time the Applicant had a direct say about his claims (at paragraph 48).
However, according to the applicant’s written submissions:
In fact on the first available opportunity after the PVA, that was at the first hearing the Applicant came out with the claim about retrenchment. This was done not in any rehearsed manner but came out spontaneously about the retrenchment (at paragraph 52).
In considering these submissions, I note that the Tribunal stated that it was not satisfied as to the accuracy of the applicant’s claim that he had been retrenched by his employer for reasons of his Indian ethnicity and his support for the Fiji Labor Party since there was no mention of the matter by him until the first Tribunal hearing.
Further, at the present Tribunal hearing, the applicant gave conflicting answers about when the retrenchment occurred (CB 288-289). In this regard, the applicant claimed at the first Tribunal hearing that he had been retrenched in July 1988. However under questioning at the present Tribunal hearing, the applicant first stated that he had been retrenched in December 1988, just before coming to Australia (Tribunal transcript, p 23) then changed the date to July 1987 (p 25) then to July or August 1988 (p 25) and finally to July or August 1987 (pp 25-26).
In these circumstances, I am satisfied that it was open to the Tribunal to regard this series of conflicting answers as detracting from the plausibility of the applicant’s claim and to constitute a reasonable basis upon which the Tribunal concluded that:
I am not satisfied that the Applicant was, in fact, retrenched and I reject his evidence on this issue.
Delay in departure from Fiji
The fifth matter concerns the Tribunal’s decision in regard to the applicant's departure from Fiji. It is not disputed that the applicant and his wife obtained their Fiji passports during 1987; that the coup occurred in mid 1987; but that the applicant and his family did not depart Fiji until the end of 1988.
The applicant’s written submissions on this matter are set out at paragraph (53), as follows:
The Tribunal simply held against the applicant on the basis that there has been a lengthy delay. The Applicant provided details of repeated and sustained effort by him in Fiji to obtain a visa to Australia and other countries. He finally got into Australia after getting a transit visa through Australia. Further the Tribunal without exploring the Applicant’s relatives’ situation in Fiji said that they should have been able to take the applicant soon after the coup. No further reason given for its finding on this issue.
In considering this submission, I note that the Tribunal stated that:
I have considered the various reasons offered by the Applicant at the hearing [for the delay in departing Fiji]… but I am not satisfied that these provide a satisfactory explanation for his lengthy delay in departing Fiji if he was genuinely fearful, as a result of the 1987 coup, that he and his wife and child would be subject to serious harm (CB 290).
I consider that it was open to the Tribunal to find the various explanations offered by the applicant and his wife concerning the delay, not to be convincing and to draw the adverse inference that the applicant was not genuinely fearful.
Tribunal’s alleged “hostile” approach
The sixth matter concerns the alleged “hostile” or “irrational” approach adopted by the Tribunal towards the applicants’ case.
The applicant’s written submissions are set out at paragraphs (54)-(65). The applicant makes a series of general assertions, namely, that the Tribunal “tried to find every possible fault”; has “not dealt with the case in a bona fide manner”; has “adopted an irrational approach to the evidence given”; has tried to use everything against the applicant; and has adopted a hostile approach.
In the absence of some specificity on the part of the applicant to identify exactly where the Tribunal is said to have erred in this regard, the Court is not in a position to properly consider these generalised allegations of the approach alleged to have been adopted by the Tribunal. Otherwise, there is nothing demonstrated in the transcript, nor on the face of the decision record which supports such allegations.
To the extent to which the applicant is alleging bias or bad faith on the part of the Tribunal in this regard, it is well-settled that any allegation of bias must be “distinctly made and clearly proved”: SZHPD v Minister for Immigration & Citizenship [2007] FCA 157 at [22]; citing Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531, [69]. This has simply not been done in the present case.
I further note the observations by von Doussa J in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38]:
The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion.
In order to establish bias or bad faith the applicant would need to demonstrate that the Tribunal “acted dishonestly or arbitrarily or capriciously”: SBBS v Minister for Immigration and Multicultural & Indigenous Affairs (2002) 194 ALR 749 at [56]-[59]. Again, whilst the applicant makes these assertions, it has failed to demonstrate where they are said to occur.
Furthermore, there is nothing to suggest that any questioning of the applicant or his wife was unduly repetitive, oppressive, unduly harassing, intimidating, or that the applicants were in any way overborne, which could otherwise have constituted procedural unfairness or bad faith on the part of the Tribunal. As relevantly observed by the High Court in Re Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425 at [30]-[31]:
Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented – often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.
I am satisfied that there is nothing disclosed in the transcript of the Tribunal hearing nor on the face of the decision record concerning the manner and form of the questions asked of the applicant and his wife, from which “a hypothetical fair minded lay observer who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias”, might reasonably apprehend that the applicants were in any way intimidated or overborne by the approach adopted by the Tribunal and from which an inference might otherwise have been available that the Tribunal did not bring an impartial mind to the task of the decision making process: ex parte H & Anor (at [28]), or that it acted in bad faith.
Furthermore, the applicants were represented at the Tribunal hearing by their legally qualified migration agent who does not appear to have made any complaint to the Tribunal at the time.
I am satisfied therefore that no allegation of bias, whether actual or apprehended, can be demonstrated to support, let alone provide a basis for proof of, any allegation of hostile or arbitrary behaviour on the part of the Tribunal towards the applicants, or that the Tribunal prejudged the matter or embarked on it with a mind not open to persuasion.
To the extent that the applicant asserts that the Tribunal adopted an irrational approach to the evidence given, I rely on my reasoning below under ground 3 of the amended application.
Contrary to the applicant’s generalised assertions, I thus detect no procedural unfairness on these bases.
Beyond these general allegations, the applicant's submissions refer to three specific matters which, it argues, indicate a hostile approach adopted by the Tribunal, namely:
(i) in contravention of s.425, which section foresees evidence being given at a tribunal hearing, the Tribunal held that later evidence given at both hearings is either embellishment or, per se, evidence of recent invention. It submits that there is no purpose in the hearing if all that an applicant says at a later hearing is treated as recent invention
(ii) the Tribunal failed to consider the impact of an incompetent and unscrupulous migration agent on the initial protection visa application
(iii) on the basis of inconsistencies with the information provided in the initial PVA, or on the basis of the delay in raising such claims, the Tribunal failed to direct itself, as it was obliged to do, to the caution required to be exercised before rejecting an applicant's claims for these reasons.
In regard to (i) above, namely, whether the Tribunal treated all evidence given by the applicant as either embellishment or evidence of recent invention, the first respondent submits that:
The Tribunal drew adverse inferences where highly significant events, which one would expect to be prominent in the Applicants’ memory if they had occurred, were not mentioned until late in the process. [The Tribunal] explained this course of reasoning in its reasons (at CB 289-290).
I accept this submission. I consider that it was reasonably open to the Tribunal on the evidence before it to draw the inferences that it did in this regard.
In regard to (ii) above, namely the Tribunal’s treatment of alleged failings of the applicant’s original migration agent, it is evident that this matter was considered by the Tribunal, including the impact of the agent on the initial protection visa application. The Tribunal made clear findings in this regard, (which are quoted above under this ground in the context of Alleged assault by soldiers). I accept that these findings were open to the Tribunal on the evidence before it.
In regard to (iii) above, namely, whether the Tribunal adopted the correct approach before rejecting the applicant’s claims on the basis of inconsistencies or failure to raise a matter at an initial stage, the applicant pointed to the decision of the Full Federal Court in SAAK v Minister for Immigration & Multicultural Affairs [2002] FCAFC 86 at [17] and [21]-[30], which referred to the need for a Tribunal to exercise care in this regard.
The principles in SAAK were referred to, and applied in SZAKF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1719, where Hely J, at [26] observed that:
The RRT’s findings were based largely on its conclusions about the appellant’s credibility, which were in turn largely based upon its findings in relation to the inconsistencies. In considering credibility and any inconsistencies in an applicant’s account the RRT is bound to exercise care: SAAK v Minister for Immigration & Multicultural Affairs [2002] FCA 367; (2002) 121 FCR 185 at 190 and ff (North, Goldberg and Hely JJ). But a finding on credibility ‘is the function of the primary decision-maker par excellence’ (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at 423 [67] (McHugh J). It was a matter for the RRT to assess whether the inconsistencies which it identified were significant, and satisfactorily explained. It was open to the RRT to reach the conclusion which it did. The fact, if it be a fact, that other decision-makers may not have reached the same conclusion does not mean that the RRT’s decision in this respect was infected by jurisdictional error.
I also note the observation in NAVQ vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 3 at [34] that:
The Tribunal has, like a single judge, the advantage of observing the applicant under questioning. A court in an application for judicial review will be cautious indeed in finding that the Tribunal’s assessment of an applicant’s credit involved an abuse of process by the Tribunal, particularly where that assessment involves the weight which a Tribunal gives to inconsistencies in an applicant’s version of the facts.
I am not satisfied that the applicant has pointed to any instance in this case where the Tribunal has acted contrary to the principles in SAAK and SZAKF regarding the need to exercise caution in these circumstances.I also note that the Full Federal Court, in the subsequent decision of SCAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 182 at [24], raised doubt as to whether such an error, even if made out, could provide a ground of review but left this question open. In this case, I consider that no such error is disclosed.
Alleged serious failure in fact-finding by the Tribunal
The seventh matter concerns the alleged serious failure in fact-finding by the Tribunal. The applicant’s written submissions are set out at (66)-(70). In support, the applicant has quoted from the following three decisions: Re Minister for Immigrations & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 per Kirby J; WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74; and SZICV v Minister for Immigration & Citizenship [2007] FCAFC 39.
In Ex parte Applicant S20/2002, Kirby J (at [116], [130] and [150]), refers to the consequences of flaws in decision-making. Applying these principles to the present case, I am satisfied that a fair reading of the decision of Tribunal demonstrates that it has not engaged in faulty decision-making, as alleged.
The decision in WAIJ deals with a tribunal's treatment of failure of an applicant to disclose relevant information at the first opportunity:
In regard to the Tribunal’s conclusion that the appellant’s claims could be discarded because they had not been raised at the first opportunity, that approach, as the Tribunal was aware, was not to be taken lightly. In this realm there may be many reasons, apparent or latent, that may explain such a circumstance. As authorities and texts in this area of law have made clear, a Tribunal must exercise considerable care before following that course and, obviously, must consider any material that supports the appellant’s case before determining that the failure to raise claims of a fear of persecution at the first opportunity led to a conclusion that the subsequent claims were invented (See: Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 558) [at 30].
It was, of course, a matter for the Tribunal to decide if the failure of the appellant to state at the "entry" interview that she feared persecution if returned to Iran, undermined the credibility of such a claim made subsequently. However, in the absence of material which impeached the appellant’s claims directly, the Tribunal could not make that determination without duly considering the weight to be given to material which tended to confirm the truth of her claims. In other words, if there was some material capable of supporting the claims and an absence of cogent material showing the appellant to have been untruthful in respect of those claims, it may be unsafe to regard the failure of the appellant to disclose the claims at the "entry" interview as sufficient to establish that the claims were invented and it would follow that material corroborating the claims would have to be considered [at 32].
I am satisfied that the Tribunal in this case did not act in any way contrary to the principles referred to above in WAIJ. There is nothing to support the proposition that the Tribunal acted otherwise than with due care and due consideration in regard to the weight to be given to material which supported the applicant's case, before reaching its decision.
In SZICV, Moore J referred to the vulnerable situation of a refugee applicant, which a tribunal should keep in mind, (at [14]):
As to the second matter, asylum seekers are a class of litigant often with particular characteristics. This is recognised in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the status of Refugees which states (at [190]):
It should be recalled that an applicant for refugee status is normally in a particularly vulnerable situation. He finds himself in an alien environment and may experience serious difficulties, technical and psychological, in submitting his case to the authorities of a foreign country, often in a language not his own. His application should therefore be examined within the framework of specially established procedures by qualified personnel having the necessary knowledge and experience, and an understanding of an applicant’s particular difficulties and needs.
Again, I do not consider that there is any support for the proposition that the Tribunal acted in a manner that did not properly take into account the more vulnerable position of the applicants. Also, as stated previously, the Tribunal is not required to accept uncritically any or all claims made by an applicant: Randhawa at 451.
As further stated above, merely because the applicant disagrees with the Tribunal’s factual conclusions and its ultimate conclusion does not amount to an error of law. Furthermore, there is no error of law, let alone jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe at 560 [137].
The exception to the above principles, known as "Wednesbury unreasonableness", applies where it can be demonstrated that the factual conclusions reached by a tribunal are so unreasonable and so unfair that no reasonable person could have made them. As stated by the High Court in Attorney General for the State of NSW v Quin (1990) 170 CLR 1 at 35:
Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power.
The High Court further observed, at 35, that:
Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined.
I am satisfied that far from there being any support for the contention that there was any serious failure in fact-finding on the part of the Tribunal in this case, the Tribunal made clear and well-reasoned findings on each integer of the applicant’s claims. I further consider that its findings, including its adverse finding as to the credibility of the applicant, were open to it on all the evidence and material before it. In these circumstances, I do not consider that this is a case where "Wednesbury unreasonableness" can be demonstrated.
Accordingly, for the reasons stated above, Ground 2 of the amended application is rejected.
Ground 3 of the amended application.
Ground 3 asserts that the Tribunal’s rejection of various claims by the applicant was affected by “gross error, manifest illogicality and unreasoned perversity”.
The applicant’s written submissions on this ground are set out at (72)-(79). In support, the applicant referred to the High Court decision in NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77 where, Gleeson CJ, at [8], commented that the telling of lies by an applicant may not necessarily destroy that person’s credibility, while Kirby J, at [65], commented that falsehoods and embroidery of certain claims do not justify a conclusion that all aspects of an applicant’s case are false. Rather, according to Kirby J:
It remains for the Tribunal to consider any evidence that is not discredited or disbelieved [at 65].
In the present case, I note that the Tribunal accepted that the applicant had suffered a broken jaw at the time of the coup in 1987 on the basis that that claim had been consistently made by the applicant since the initial visa application (CB 290). This contrasts with the applicant’s claims relating to retrenchment, burning of his house and assaults by soldiers, all of which, according to the Tribunal’s findings, were raised by the applicant after the initial visa application, and which were not accepted by the Tribunal.
I consider that, consistent with NAIS, the Tribunal considered all the evidence, including the claim (the broken jaw) that was not discredited or disbelieved. As stated above, the Tribunal’s findings as to the adverse credibility of the applicant are matters solely for the Tribunal to determine in its fact finding role where those findings are reasonably open to it on the evidence before it.
In regard to the applicant’s more general allegation that the Tribunal’s rejection of the applicant’s claims was affected by “manifest illogicality”, it is well settled that any want of logic by an administrative decision-maker in drawing an inference of fact does not, per se, constitute an error of law. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 356, Mason CJ said:
Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place (emphasis original).
Subsequently, in NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235, the Full Federal Court, after quoting the above comments by Mason CJ, concluded, at [30], that:
However want of logic does not of itself suffice to constitute error of law, still less error of law which is jurisdictional. There is nothing else in the material, apart from the one aspect of illogicality, to cast doubt upon the RRT's reasoning. Moreover, there are several bases upon which that reasoning can, in any event, be supported. Accordingly, on the present state of the authorities, there is no reviewable error.
This conclusion that want of logic does not of itself suffice to constitute an error of law was subsequently quoted with approval by the Full Federal Court in NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52 at [25].
In any event, I consider that the Tribunal’s decision in the present case was based on rational and logical grounds, and did not display any "gross error, manifest illogicality and unreasoned perversity". The Tribunal closely considered the applicant’s claims in each of his application for a protection visa, before the first Tribunal, in his oral evidence at the Tribunal hearing, and also had regard to other material available to it from a range of sources (CB 270). The Tribunal set out its findings on the lack of credibility of the applicant's claims, based on a rational consideration and assessment of all this evidence and material.
Accordingly, for the reasons stated above, Ground 3 of the amended application is rejected.
Ground 4 of the amended application.
Ground 4 asserts that the Tribunal failed to bring an impartial mind when it dealt with the applicant’s claims, causing an apprehension of bias against the applicant.
The applicant’s submissions on this ground are set out at paragraphs (81)-(94) of its written submissions. The applicant argued that the Tribunal’s overall approach demonstrates that it was determined to find whatever it could against the applicants in spite of them providing a thorough and detailed explanation on various matters. The applicant asserts that, even if the Tribunal did not do it deliberately, a fair-minded observer might think that the Tribunal was being partial.
The applicant outlined various ways in which the Tribunal is said to have displayed apprehended bias, including that:
·the alleged weaknesses and inconsistencies in the appellant's evidence, relied upon by the Tribunal, were objectively insignificant, superficial and erroneous
·there was significant misrepresentation/misconstruction of various pieces of evidence
·the Tribunal was unnecessarily harsh and appeared determined to find against the applicant
·all answers by the applicant at the hearing were provided spontaneously without any hesitation and in a truthful manner
·the Tribunal “held everything against the applicants. It did it in every possible way.”
So far as is relevant in the present context concerning the allegation of apprehended bias, I adopt my reasoning under ground 2 above of the amended application: Tribunal’s alleged hostile approach.
I further note that in regard to apprehended bias, the High Court in ex parte H & Anor at [27]-[28] compared its application in judicial and Tribunal proceedings:
The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the Tribunal, proceedings are held in private.
Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias.
Subsequently in NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328 at [115], the Full Federal Court identified certain circumstances where apprehended bias might be made out:
Where fact-finding has been conducted in a manner which can be described, as here, as in substantial respects unreasoned, and mere assertion lacking rational or reasoned foundation, at times as plainly and ex facie wrong and as selective of material going one way, these considerations may found a conclusion that the posited fair-minded observer might, or indeed would, reasonably apprehend that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly.
I consider that neither the particulars accompanying this ground of application, nor the matters referred to in the applicant’s written submissions, provide any basis for proof of apprehended bias by the Tribunal according to the standard of a hypothetical fair minded lay observer. They constitute nothing more than mere unsubstantiated assertions. Similarly, I further consider that none of the particulars stated under amended grounds 1, 2 and 3 provide any basis for proof of apprehended bias as also alleged by the applicant.
For instance, I consider that it was properly a matter for the Tribunal to determine whether the applicant answered questions “spontaneously without any hesitation” and “in truthful manner”, as asserted in the applicant’s submissions.
More generally, I am satisfied as stated above, that there is nothing disclosed in the transcript of the Tribunal hearing, nor on the face of the Tribunal decision record to show that a hypothetical fair minded lay observer who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias, might reasonably apprehend that the Tribunal did not bring an impartial mind to the task of the decision making process, or that the Tribunal was not open to persuasion or was unable or unwilling to evaluate fairly all the material before it.
Furthermore, far from demonstrating any apprehended bias on the part of the Tribunal, its consideration of the evidence and detailed questioning of the applicant at the Tribunal hearing to try to get responsive and informative answers to its questions that went directly to the merits of the applicant's claims, militate against any such conclusion of prejudgment on its part.
I accept the submission by the first respondent that:
The Tribunal did not misstate or misconstrue evidence in such a way as to raise any suspicion that it had not brought an open mind to the review; it simply reached a relatively confident conclusion that the Applicant’s claims about past harm were not credible.
Accordingly, for the reasons stated above, Ground 4 of the amended application is rejected.
Ground 5 of the amended application.
Ground 5 involves two assertions:
i)that the Tribunal misapplied the “real chance” test in determining that the applicants did not have a ‘well founded fear of persecution’ because of a future coup; and
ii)that the Tribunal failed to take into consideration a critical piece of country information provided by the applicant about the prospects of a future coup in Fiji, namely a document asserting the existence of a plan to kill Commodore Bainimarama.
The applicant’s submissions on assertion (i) are set out at paragraphs (96)-(102) of its written submissions. The applicant argues in this regard that:
·the Tribunal assessed a "real chance of persecution" as being an assessment on the balance of probabilities of the chance that the applicant might be persecuted if he returned to his home country and not, as the decision in Chan Yee Kim v Minister for Immigration & Ethnic Affairs (1989) 109 CLR 379 required, on an assessment of the "real possibility" of such persecution taking place;
·the Tribunal failed to consider whether there was a well-founded fear in the reasonably foreseeable future, (the test adopted in SZGHS v Minister for Immigration & Citizenship [2007] FCA 1572), since, by focusing on the current regime in Fiji, it considered only the immediate future.
The Tribunal made the following finding concerning a possible future coup:
On the information before the Tribunal I am not satisfied that there is any reason to believe that another coup involving the overthrow of the present interim government and violence against the Fiji Indian community will occur in Fiji in the foreseeable future … I am not satisfied that the fears [the applicant] has expressed about this have a basis in objective fact or that they are any more than simple speculation.
In regard to the submission by the applicant that the Tribunal incorrectly adopted a "balance of probabilities" test rather than a "real possibility" test, I accept the submission by the first respondent that:
The Tribunal went well beyond a failure to be satisfied on the balance of probabilities that a coup would occur. Looking at the “foreseeable future”, it saw “no reason to believe” – i.e., no substantial probability – that it would occur. This was a proper basis for a conclusion that the Applicant did not have a “well founded fear of persecution” arising from a future coup.
Nor, in my view, did the Tribunal look only to the immediate future, as argued by the applicant. It clearly considered the “foreseeable future”. In this context I accept the submission by the first respondent that:
The Convention does not accord refugee status to everyone who might be affected by a regime change which might or might not occur at some relatively distant, but unpredictable, time. The Tribunal found, as it was entitled to, that the present regime in Fiji was highly likely to hold power for the foreseeable future and not to be ousted by a coup.
The applicant’s submissions on assertion (ii) are set out at paragraphs (103)-(104) of its written submissions. The applicant argues that the Tribunal failed to take into consideration a critical piece of country information provided by the applicant about a threat to Bainimarama (Fiji warriors threaten to kill Bainimarama) (the document) which, according to the applicant, adds an important aspect of uncertainty and the possibility of a further coup.
It is not disputed that the document came from a website on the Internet, of a type commonly known as a blog. The website is cited in the applicant’s written submissions at paragraph (104).
At the Tribunal hearing, the adviser handed up the document, which the Tribunal member received in evidence (Tribunal transcript, p 58). The Tribunal then stated:
…thank you for [the document] and I’ll study that very closely, Mr Adviser. I mean I have to say that by their nature, blog documents have to be considered with a degree of reserve because one isn’t aware of the credentials or the qualifications of anybody contributing to it but I certainly will study them, thank you (p 59).
The Tribunal was clearly indicating to the adviser at this stage that it had reservations about the weight to be given to a blog document. The adviser was therefore given an opportunity at that time to respond to the concerns raised by the Tribunal.
Also, as conceded by the applicant in its written submissions at paragraph (104), the following extract from the Tribunal's Findings and Reasons contains a reference to the document:
The only substantiation of the Applicant’s claims in this area is a document downloaded from an internet blog which contains comment from a number of contributors about the political situation in Fiji and Commodore Bainimarama’s policies. As put to the advisor at the second Tribunal hearing, the contributors of these opinions are anonymous and there is no way of determining their qualifications or the knowledge they bring to bear on the subject. In these circumstances I am unable to attach any evidentiary weight to this document. Other independent country information indicates that the Great Council of Chiefs has, in fact, altered its earlier position of opposition to the coup and the interim government, and that the Methodist and Catholic churches have expressed their support (CB 293).
I consider that the Tribunal was entitled to treat the document as one item of evidence in the application. The weight the Tribunal accorded the document was ultimately a factual matter for it: NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 (FC) at [81]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J; Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361 per Beazley J at [54]. As observed by the Federal Court in Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27] in the context of considering country information:
The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.
Accordingly, for the reasons stated above, Ground 5 of the amended application is rejected.
Conclusion
The Court finds that 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 application and the amended application before this Court are dismissed.
I certify that the preceding one hundred and fifty-nine (159) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 30 May 2008
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