SZGLQ v Minister for Immigration
[2006] FMCA 670
•14 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGLQ & ORS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 670 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.483A |
| Applicant A165 of 2003 v Minister for Immigration [2004] FCA 877 Applicant WAEE v Minister for Immigration [2003] FCAFC 184 Dranichnikov v Minister for Immigration (2003) 197 ALR 389 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration v Anthonypillai [2001] FCA 274 Minister for Immigration v Bhardwaj [2002] HCA 11 Minister for Immigration v Respondents S152/2003 [2004] HCA 18 Minister for Immigration v Yusuf [2001] HCA 30 NABE v Minister for Immigration (No.2) [2004] FCAFC 263 SGBB v Minister for Immigration (2003) 199 ALR 364 |
| Applicants: | SZGLQ, SZGLR, SZGLS |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG1437 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 5 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 14 June 2006 |
REPRESENTATION
| Advocate for the Applicants: | Mr A Silva |
| Solicitors for the Applicants: | Silva Solicitors |
| Counsel for the Respondents: | Mr D Jordan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Refugee Review Tribunal is joined as the second respondent.
The application is dismissed.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to this application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1437 of 2005
| SZGLQ, SZGLR, SZGLS |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 2 June 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 28 June 1995, affirming a decision of the delegate of the first respondent made on 10 December 1991, refusing to grant the applicant a Protection visa. The applicants seek relief in the form of constitutional writs against the decision of the Tribunal.
The applicants in these proceedings are not to be identified pursuant to s.91X of the Act and have been given the pseudonyms “SZGLQ” (applicant husband), “SZGLR” (applicant wife), “SZGLS” (applicant daughter).
The applicants tendered and applied for the following affidavits to be admitted into evidence:
a)Affidavit of the applicant husband affirmed on 2 June 2005 (“affidavit of the applicant husband”); and
b)Affidavit of Sylvia Nicholas Silva sworn on 16 August 2005 (“affidavit of S Silva”).
A Court Book (“CB”) prepared by the respondents’ solicitors was filed and served on 16 August 2005.
Background
The decision of Tribunal member, Michael Choueifate, reference number BN93/02066 contains the following background information in respect of the applicants. The applicants sought protection as refugees by an application lodged with the Department of Immigration on
3 January 1990. The applicant’s wife and daughter were included in that application. The applicants were notified of the refusal of that visa by letter dated 10 December 1991. They applied to the Tribunal for review of that decision on 13 January 1992. The applicants were assisted at that hearing and in their original application to the Department, by Transpacific Migration Services.
At the time of the Tribunal hearing, the applicant husband was a 34 year old Fijian Indian male who legally entered Australia as a visitor on 14 December 1988. He was issued a transit visa, which expired on 15 December 1998. At the expiry of that visa, the applicant husband remained in Australia without a grant of further stay. Therefore on or about 15 December 1998, he became an unlawful non-citizen.(CB 87)
Applicants’ claim
The nature of the applicants’ claims are set out in the written submissions prepared by Mr Jordan, counsel for the respondents:
5.The applicant claimed to fear persecution in Fiji because he had been a member of the Fiji Labour Party (FLP) and the National Federation Party (NFP). He also claimed to fear persecution for reason of his Indian ethnicity and for reason of his Hindu religion. The applicant’s fears were based upon events which occurred following the military coups in Fiji in 1987. The applicant referred to verbal and physical abuse, vandalism, economic disadvantage, restrictions on religious practice and inadequate police protection, experienced by him and his family at the hand of the indigenous Fijian government and population.
The tribunal’s findings and reasons
A convenient summary of the Tribunal’s “Findings and Reasons” are contained in Mr Jordan’s written submissions:
6.The Tribunal accepted that the applicant had been a member of the NFP and later the FLP. The tribunal also accepted that the applicant had been subjected to physical abuse, harassment and vandalism in the period after the first military coup in 1987. However, the tribunal referred to more recent country information which showed that, since then, public order and the effectiveness of state protection had been restored. The tribunal accepted that the Fijian Constitution did provide for some discrimination in favour of indigenous Fijians but was not satisfied that this amounted to persecution for the purposes of the Convention. On the basis of the freedom of religion provided for in the Fijian Constitution, the tribunal was satisfied that the applicant would be free to practise his chosen faith.
Application for review of the tribunal’s decision
On 2 June 2005, the applicants filed an application for review under s.39B of the Judiciary Act. On 14 September 2005, Silva Solicitors, acting for the applicants, filed an amended application. At the commencement of the hearing, Mr Silva, appearing for the applicants, sought leave to file a further amended application in the proceedings. Mr Silva had previously informed the respondents’ solicitors and the Court of his intention to seek such leave. As there was no objection by the respondents, leave was granted.
The further amended application contained the following grounds:
1.The Tribunal made jurisdictional error as it failed to take into consideration (a) critical issues (b) vital country information as well as (c) an elaborate submission on country situation provided by the applicant that was critical for it to reach the statutory state/lack of satisfaction mandated by the Migration Act of 1958.
Particulars
The Tribunal has not taken into consideration any of the country information or submission on the country situation provided by the Applicant. Not even a single one. It was not specifically stated under the “Claims and Evidence” and it was not mentioned at all under the “Reasons for Decision”.
(a) CB pp 4-11 – Submission by the Migration Agent was completed ignored
(b) CB pp 12-79 – Numerous pieces of country information was completely ignored
(c) Most specifically mention of a third coup by the twice coup maker and Prime Minister Sitiveni Rabuka and reference by him to bloodshed was ignored by the Tribunal. This issue is mentioned on pages CB pp 26, 63, 78.
2.The Tribunal made jurisdictional error as it failed to take into consideration (a) relevant issues (b) vital and directly relevant material in finding that the evidence before the Tribunal does not support the Applicant’s claim that the police force is ineffective, implying that state protection is available
Particulars
The Tribunal failed to consider two issues (a) Whether the shortage of resources of the police is such they are able to provide protection (b) Whether the police is able to control the army if they persecute the applicants.
Country information provided by the applicant appearing on CB 62 is titled “Victim of assault and robbery slams police.” This is a vital piece of information that could not have been ignored in making the finding that the police are not ineffective. This is critical to the state protection issue.
3.The Tribunal failed to deal with an important claim made by the applicant. It thus made a jurisdictional error.
Particulars
At CB 92.30 the Tribunal says:
“The Applicant told the Tribunal he did not believe freedom of religion was observed in Fiji and that information from the Department of Foreign affairs and Trade (DFAT) which suggested this was the situation was wrong. The Applicant also claimed the Sunday Observance Decree did not allow Hindus to practice their religion freely. The Applicant told the Tribunal that native Fijians would often throw rocks on those attending the temple on Sunday.” (emphasis added)
The Tribunal failed to deal with the second part of the claim above which appears in bold. The Tribunal misunderstood the Applicants’ claim as seen from the statement below.
4.The Tribunal made jurisdictional error there is reasonable apprehension that it was biased based on how it dealt with the country information in relation to the applicants’ case in the sense it has a closed mind.
Particulars
The Country information provided to the Tribunal by the applicant is so comprehensive that the behaviour of the Tribunal in ignoring it completely can create in the mind of a fair-minded lay observer who comes across the Tribunal decision an apprehension of bias as it has been clearly one sided in dealing with the country information. As stated before the Tribunal:
(i) Did not specifically consider applicant’s detailed submission on the country situation. For all practical purposes ignored it
(ii) Did not specifically consider a collection of newspaper extracts and one extract from the Fiji Hanzard on the country situation provided by the applicant. For all practical purposes ignored it
Reasons
The first ground of the further amended application asserts that the Tribunal committed jurisdictional error because it failed to take into consideration:
a)“Critical issues”;
b)“Vital country information”; and
c)“An elaborate submission on country information”.
The particulars to this ground identified the following material, which the applicants assert, was ignored by the Tribunal:
a)
A submission to the Tribunal by the applicants’ adviser dated
13 December 1993;(CB 4-11)
b)Numerous pieces of country information;(CB 12-79)
c)References to a threat of a third coup.(CB 26, 63, 78)
Mr Silva submits that the Tribunal did not take into consideration any country information or submissions on the country situation provided by the applicants. Mr Silva claims that those documents were not specifically mentioned under the headings ‘Claims and Evidence’ and ‘Reasons for Decision’, in the Tribunal decision. Mr Silva relies on Minister for Immigration v Yusuf [2001] HCA 30 at [69] and [82] per McHugh, Gummow and Hayne JJ:
69.It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75 (v) of the Constitution. For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s 476 (1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error. The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration.
82.It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal)
"falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
"Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law. [citations omitted]
Further, in respect of Mr Silva’s argument that the Tribunal had not dealt with these three issues in its reasons, he relies upon the Full Federal Court decision of Applicant WAEE v Minister for Immigration [2003] FCAFC 184 at [44] and [49] per French, Sackville and Hely JJ:
44.It is central to the exercise of the dispositive powers conferred by s 415 that the Tribunal has first conducted a review. That is to say it must have considered the application which is the subject of review in light of the information, evidence and arguments which are relevant to the application and which are provided to it or which it obtains for itself. So much is contemplated by ss 423, 424, 425 and 426 of the Act.
49.The material put before the Tribunal on the son's intermarriage issue and the contentions advanced in respect of it went directly to the criterion for the grant of a protection visa set out in s 36. While the Tribunal recounted the appellant's claims on this issue early in its reasons, its failure to consider the evidence and the contention leads to the inescapable conclusion that it failed to address the issue.
Mr Silva submits that in order for the Tribunal to review the Minister’s decision, it must consider all the relevant documentation submitted by the applicants. Mr Silva relies on Minister for Immigration v Bhardwaj [2002] HCA 11 at [163]-[164] per Callinan J:
163.I have formed the opinion that what happened in September 1998 was something more than a breach of the rules of natural justice. It was a failure to exercise a jurisdiction which the Tribunal was bound to exercise. If one thing is abundantly clear, it is that the Tribunal must, if an application has properly been made [190] as it was here, review the Minister's decision. This means that the Tribunal must exercise the jurisdiction of reviewing the Minister's decision: that is to say, it must make a decision on the application and any documents properly submitted by an applicant, with, as part of, or relevant to it. To fail, or refuse to receive and consider such a document, and to make a decision without regard to it, is a failure to exercise jurisdiction. This is more than a failure to give a party a hearing. It is to proceed on a false basis, that such a document simply does not exist or has not been communicated to the Tribunal. The Tribunal would in these circumstances no more be exercising its jurisdiction than a court would be in deciding a case in favour of a defendant without looking at the plaintiff's initiating document and pleading, or even knowing that they had been filed in the registry of the court.
164.The application for an adjournment was an important document. The Tribunal was bound to give it consideration. This was not a case in which a document or a piece of evidence was merely not referred to in a decision. This is a case in which it is known that the application for an adjournment was not brought to the attention of the Tribunal in order to enable it to exercise its jurisdiction to grant or refuse the adjournment, and if it refused it, to undertake the review in the knowledge, and on the understanding that it had been refused. If the Tribunal had, at the time of making its September 1998 decision, known of the application for an adjournment, it might, if it were so minded, have decided to refuse it. It might perhaps in refusing it, have been unnecessary to give any, or any detailed reasons why it did so. But what it did have to do was to exercise its jurisdiction, that is, relevantly, to make a decision about it and the Court does know that that is one thing which it did not do.
Mr Silva argues that the Tribunal cannot merely pay lip service to its obligation to consider all materials presented by the applicants so as to can determine the relative importance of each item. Mr Silva relies upon Minister for Immigration v Anthonypillai [2001] FCA 274 at [71] and [79] per Heerey, Goldberg and Weinberg JJ:
71.The word "consider" is defined in the Oxford English Dictionary, in part, as:
"to view or contemplate attentively...examine...scrutinise...to fix the mind upon...to reflect upon".
79.It is often dangerous to seek to elucidate a principle by the use of examples, particularly when they are far removed from the facts before the Court. However, were the Tribunal to misconceive the nature of its statutory obligation, as for example by mistakenly believing that it was engaged in appellate review of the Minister's decision (rather than a rehearing de novo), it would be difficult to avoid the conclusion that it had failed to "review" the decision, in accordance with the requirements of the Act. Similarly, were the Tribunal to address the wrong question, rather than the question properly before it, there would be a constructive failure to exercise jurisdiction. Again, speaking hypothetically, were the Tribunal merely to pay lip service to its task, as for example by determining an application without reading the material filed before it, it would be difficult to conclude that it had "considered" the application.
Mr Jordan submits that there are two assertions advanced by the applicants as to why the first ground should be rejected. First, that there is insufficient basis to infer that this material was not taken into account by the Tribunal during its decision-making process. More importantly, given that the Tribunal decision was based upon improved circumstances in Fiji since the coup in 1987, none of the material relied on by the applicants constituted relevant consideration of the kind which the Tribunal was obliged to take into account in order to lawfully exercise its jurisdiction: Minister for Immigration v Yusuf at [73]-[75]; Dranichnikov v Minister for Immigration (2003) 197 ALR 389 at [24]; NABE v Minister for Immigration (No.2) (2004) 144 FCR 1 at [55].
Mr Jordan submits that the Tribunal decision did not specifically refer to the material identified in the applicants’ first ground. However, such failure is not a proper basis to infer that the Tribunal failed to take the material into account. It was unnecessary for the Tribunal to specifically refer to this material because the significance of it was subsumed within the Tribunal’s assessment of the changes in circumstances in Fiji since the 1987 coup. Mr Jordan submits that the Tribunal is not required to refer to every piece of evidence advanced by the applicants: Applicant WAEE v Minister for Immigration at [46]-[47].
Mr Jordan submits that it is apparent from the evidence available that the subject material of the applicants’ complaint was considered by the Tribunal and refers to the following:
a)At the commencement of the hearing on 24 November 1994, the Tribunal member said to the applicant husband “I’ve been through your file”. (affidavit of S Silva, annexure A: Tribunal hearing transcript p.2.6)
b)Later in the hearing, the member referred the applicant husband to country information which directly traversed the material identified in the particulars the first ground (Tribunal hearing transcript p.9.9):
Mr Choueifate: Other information that the Tribunal has and I’ll just ask you to comment is that:
The sharp deterioration of public order which followed the coups has subsided and the reconvening of parliament has provided an outlet for political expression contributed to the restoration of political stability and remove the opportunity for petty criminals to take advantage of a distracted police force.
c)The applicants referred to “some items off the newspapers and cuttings”. (Tribunal hearing transcript p.10.9)
d)At the conclusion of the hearing, the applicants’ adviser indicated that he would forward some “newspaper clippings and materials”. The Tribunal agreed and allowed time for the adviser to do so. (Tribunal hearing transcript p.14.2)
Mr Jordan submits that none of this material constituted relevant consideration of the kind which the Tribunal was obliged to take into account in order to lawfully exercise its jurisdiction.
I accept Mr Silva’s submission that the Tribunal has an obligation to consider all of the material. I believe that the Tribunal has done this. Mr Jordan drew the Court’s attention to relevant references in the Tribunal decision and the transcript attached to the affidavit of S Silva. I further accept that the Tribunal had at its disposal additional material in the form of more recent country information which differed from the material submitted by the applicants and their advisor. This was the material upon which the Tribunal relied. The significant issue in the additional material was that there had been considerable improvements in Fiji since the 1987 coup. The Tribunal considered the situation as at June 1995, eight years after the coup. Mr Jordan submits that the applicants’ material to which Mr Silva referred was considered, but due to the change in circumstances, they were not relevant (in part or in whole) to the Tribunal decision in June 1995.
The second ground of the further amended application contends that the Tribunal committed jurisdictional error by failing to take into consideration “relevant issues” and certain newspaper clippings in relation to the effectiveness of police protection in Fiji. Mr Silva states that a newspaper cutting from the Daily Post dated 17 March 1994 (CB 62), entitled “Victim of assault and robbery slam police”, was ignored by the Tribunal in making the following finding:
The same cable also advises that “the Fijian police force is a professional and well respected organisation” and the Opposition leader says that “the public confidence in the police force was at its highest for many years”. (CB 96)
Mr Silva argues that this was a vital piece of information that should not have been ignored by the Tribunal, in its finding that the police are effective, which he contends is critical to the State protection issue. Mr Silva argues that the Tribunal failed to consider two questions:
a)Whether the shortage of resources of the police is such that they are able to provide protection?
b)Whether the police are able to control the army if they persecute the applicants? This being a critical question because the army came to the applicants’ house to search for arms, stole jewellery and attempted to sexually assault the applicant wife.
Mr Silva submits that these questions do not relate to factors that were so insignificant that failure to take them into account could not have materially affected the decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. Also that an administrative tribunal makes a jurisdictional error when it does not take into account relevant considerations in making a decision: Minister for Immigration v Yusuf at [82] per McHugh, Gummow and Hayne JJ.
Mr Silva argues that the Tribunal did not apply the correct test of state protection. He submits that the correct test was found Minister for Immigration v Respondents S152/2003 [2004] HCA 18 at [77]-[78] and [83]:
77.The case that presents most difficulty is one where harm to individuals for a Convention reason may come from any one or more of a widely dispersed group of individuals and the State is willing but is unable to prevent much of that harm from occurring. In societies divided by strongly held ethnic or religious views, it commonly happens that members of one group have a real chance of suffering harm - often violent harm - because of the pervasive but random acts of members of another group. Such harm occurs although the State makes every effort to prevent it. In such cases, it would be a misuse of language to say that the fear of persecution is not well-founded because the State has "a system of domestic protection and machinery for the detection, prosecution and punishment of actings contrary to the purposes which the Convention requires to have protected"[64]. In Horvath, relying on the protection theory, the House of Lords limited the scope of the definition of "refugee" by requiring that a State be unwilling or unable to eliminate persecutory conduct by private individuals. Nothing in the Convention, however, supports this limitation. It should not be read into the Convention.
78.If there is a real chance that the asylum seeker will be persecuted for a Convention reason, the fear of persecution is well-founded[65] irrespective of whether law enforcement systems do or do not operate within the State. In Haji Ibrahim, all members of this Court recognised [66] that persons may be persecuted for a Convention reason although the State is unable to protect them because a civil war is raging in the country. No different view should be taken where in peace-time a State is unable to protect its citizens from harm inflicted for a Convention reason. As Gleeson CJ pointed out in Haji Ibrahim [67], "[p]ersecution and disorder are not mutually exclusive". In the same case, Gaudron J said that persecution may exist for the purpose of the Convention "whether or not the conduct occurs in the course of a civil war, during general civil unrest or ... [where] it may not be possible to identify any particular person or group of persons responsible for the conduct said to constitute persecution"[68].
83.However, once the asylum seeker is able to show that there is a real chance that he or she will be persecuted, refugee status cannot be denied merely because the State and its agencies have taken all reasonable steps to eliminate the risk. Nothing in the Convention supports such a conclusion.
Mr Jordan submits that the Tribunal clearly comprehended and dealt with the applicants’ claim in relation to effectiveness of police protection. Under the heading ‘Reasons for Decision’, the Tribunal accepted that the applicants husband and wife were subject to acts of vandalism and harassment by native Fijians in the post-coup period; it referred to independent country information which described those kinds of problems. However, the same report clearly stated that with the reconvening of parliament, political stability and regular and stable policing were restored.(CB 95) The Tribunal then went on to consider further issues in respect of the judiciary and the police force since the country’s recovery from the coup.(CB 96) The issue of police resources and effectiveness was also raised by the Tribunal during the hearing in order to inform the applicant of more recent country information which showed a significant improvement in the effectiveness and morale of the Fijian police force.(Tribunal hearing transcript p.9.7) Mr Jordan submits that the Tribunal’s decision was based on improved circumstances in Fiji since the coup of 1987, individual components of which were subsumed within the Tribunal’s assessment of the change in circumstances. As stated above, the Tribunal is not required to refer to every piece of evidence advanced by the applicant: Applicant WAEE v Minister for Immigration at [47]-[47].
I believe that Mr Silva has identified the material to be applied immediately post-coup. However in the period since the coup, there have been a number of changes which have led to the restoration of political stability and the effective operation of the Fijian police force. This was clearly reflected in the country information about the reconvening of parliament, leading to a lessening of tension and the return of a stable political environment. I accept the submissions of Mr Jordan, that due to this change, the country information that was relevant immediately post-coup has been superseded and consequently is not required to be relied upon by the Tribunal, nor directly referred to in its decision. I do not believe that this ground can be sustained.
In the third ground, the applicants complain that the Tribunal failed to deal with a specific claim that native Fijians would often throw rocks on Hindus attending their temple on Sundays. Mr Silva argues that the Tribunal failed to deal with this part of the applicants’ claim and suggests that the claim was misunderstood. In support, Mr Silva refers the Court to questions which the Tribunal member asked the applicant husband, in order to explain his statement that their region was condemned. The applicant husband gave an example of being harassed and the stone throwing incident. The applicant husband explained that native Fijians want the Hindus to convert to Christianity, resulting in their being teased and harassed. The applicant husband confirmed that this behaviour commenced “just after the coup”.(Tribunal hearing transcript p.4)
The Tribunal decision made broad statement in respect of possible conflict in Fiji in respect of all religious observance (CB 96.6):
The Tribunal does not believe the presence of the Sunday Observance Decree will result in the Applicant suffering persecution for Convention reasons if he returns to Fiji. As previously, stated, freedom of religion is guaranteed in the Constitution and the Applicant is free to practise his chosen faith.
The thrust of Mr Silva’s argument is that this finding did not respond to the allegations of harassment suffered by the applicants by the throwing of rocks when attending their temple. Mr Silva submits that the Tribunal makes a jurisdictional error if it fails to understand and address the claim which the applicants have put to it: Dranichnikov v Minister for Immigration (2003) 197 ALR 389 at [24]; SGBB v Minister for Immigration (2003) 199 ALR 364 at [16]-[18]; NABE v Minister for Immigration (No.2) at [63].
Mr Jordan submits that the Tribunal dealt with this issue under the section ‘Claims and Evidence’ (CB 92.4):
The Applicant told the Tribunal he did not believe freedom of religion was observed in Fiji and that information from the Department of Foreign Affairs and Trade (DFAT) which suggested this was the situation, was wrong. The Applicant also claimed the Sunday Observance Decree did not allow Hindus to practise their religion freely. The Applicant told the Tribunal that native Fijians would often throw rocks on those attending the temple on Sunday.
Mr Jordan argues that the issue of the throwing of rocks was taken into account, as one element in the broader issue of freedom of religious observance. Mr Jordan submits that it was unnecessary for the Tribunal to specifically address this particular evidence because it was subsumed in the Tribunal’s finding about improved State protection and religious freedom. The incident occurred in the immediate post-coup period, and the Tribunal gave general consideration to law and order in relation to a wide range of matters in Fiji. There is no suggestion that this activity by the native Fijians occurred at times other than during the period of wide scale civil disobedience immediately post-coup and which has subsequently ceased with the restoration of law and order.
I do not accept that the Tribunal failed to deal with this claim raised by the applicants in their evidence. Neither do I accept that there was any misunderstanding or misconstruction of it. The rock throwing incident appears to be an example of the harassment suffered by the applicants which was considered by the Tribunal in the broader issue of freedom of religious observance.
In the fourth ground, the applicants assert that the failure of the Tribunal to specifically refer to the adviser’s written submissions and a body of newspaper clippings results in a reasonable apprehension of bias on the part of the Tribunal. Mr Silva argues that the country information provided by the applicants to the Tribunal was comprehensive, yet completely ignored. Mr Silva contends that a fair-minded lay observer would form an apprehension of bias by the Tribunal. Mr Silva relies on the objective test for apprehended bias set out in Applicant A165 of 2003 v Minister for Immigration [2004] FCA 877 at [65] to [67] per Lander J.
In this regard, Mr Jordan submits that the omission of specific reference to this material in the Tribunal decision does not, of itself, show that the Tribunal failed to take the material into account. He again relies on the authorities referred to in the first and second grounds above, particularly, Minister for Immigration v Yusuf; Tranichnikov v Minister for Immigration; NABE v Minister for Immigration (No.2) and Applicant WAEE v Minister for Immigration. Mr Jordan submits that although the Tribunal decision did not make specific reference to the adviser’s written submissions or the body of newspaper clippings, when the transcript of the hearing is considered, it is evident that the Tribunal adopted an impartial and fair procedure in determining the applicants’ claims. The examination of this broader body of material does not support a claim of apprehension of bias by the Tribunal in its dealing of this matter.
Conclusion
Mr Silva, appearing for the applicants, filed an amended and a further amended application in these proceedings, supported by detailed written submissions and affidavit material containing a transcript of the hearing conducted by the Tribunal member. Mr Silva has identified four grounds of review, which allege jurisdictional error by the Tribunal member. Each of these alleged errors focuses on very specific issues which are clearly identified, particularised and argued with reference to current authorities.
However, as Mr Jordan clearly demonstrates, each group of documents identified formed only part of the evidence before the Tribunal, and in each case was not specifically referred to by the Tribunal member in the decision.I accept Mr Jordan’s submissions that each of the four alleged errors formed only part of a body of evidence that was considered and correctly handled by the Tribunal. The argument that the documents were in any way misunderstood, overlooked or ignored, cannot be sustained. I am satisfied that each one of the alleged errors was adequately addressed in the Tribunal’s considerations and determination. I cannot accept that any of the alleged errors can be sustained. Consequently, I believe that the application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicants pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 14 June 2006
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