SZGYB v Minister for Immigration
[2008] FMCA 1288
•27 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGYB v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1288 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.424A, 424B, 425 |
| Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 |
| Applicant: | SZGYB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1128 of 2008 |
| Judgment of: | Barnes FM |
| Hearing date: | 27 August 2008 |
| Delivered at: | Sydney |
| Delivered on: | 27 August 2008 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Ms T Wong |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $4,900.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1128 of 2008
| SZGYB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of decision of the Refugee Review Tribunal affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of Fiji, arrived in Australia in 1990. She applied for a protection visa in January 2002. The application was refused and she sought review by the Tribunal. The Tribunal as originally constituted affirmed the delegate's decision by decision dated 6 March 2003 (T1). The applicant sought judicial review. By consent the Court made orders setting aside the decision and remitting the matter to the Tribunal for reconsideration.
On 15 September 2006 the Tribunal, differently constituted, again affirmed the delegate's decision (T2). The applicant sought review in this Court and on 6 November 2007 the Court by consent set aside the decision and remitted the matter to the Tribunal to be determined according to law. It is that reconsideration (the third Tribunal decision which for convenience I refer to as the Tribunal) that is before the Court in these proceedings.
The applicant was invited to a hearing by T1 but she did not attend. She was invited to and attended a hearing before T2. She was also invited to and attended a hearing in February 2008 before the Tribunal as reconstituted.
In its reasons for decision the Tribunal outlined the applicant's claims as made in connection with her protection visa application and thereafter. Originally the applicant had claimed to fear persecution in Fiji on the basis that native Fijians would harm her because they did not like people of Indian origin. She reiterated those claims in a letter to the Department.
The Tribunal recorded that at the hearing conducted by T2 the applicant elaborated on her claims, stating that she had a shop in Fiji which had burnt down during the 1987 coup, that she had been assaulted and that she feared returning to Fiji because she was an Indo-Fijian woman and that she would be harmed because she was an Indo-Fijian woman. She claimed her sister’s home had recently been taken and their belongings thrown out.
Before the Tribunal the applicant claimed to belong to a particular group of Indo-Fijians perceived to be single, wealthy businesswomen. She provided supporting documents from people who had known her at the time of the 1987 coup and witnessed events at that time.
In its reasons for decisions the Tribunal recorded that at the hearing it conducted the applicant had repeated her claim that serious things had happened at the time of the first coup, confirmed that her shop had been burned and claimed, when asked if she thought she was particularly targeted, that these things happened to Indians in Fiji. She also claimed they had meetings there and used to talk about the election. When asked whether violence would happen to her if she returned because she was Indo-Fijian she said she was well-known by Fijians involved in the coup and that people would know that she was back if she returned.
The applicant said that they burned her shop, that “they knew very well that she was mingling with politicians, they came to her shop and had meetings.” The Tribunal recorded the applicant stated that she was not a member of any political party, but that she had marched with the union, helped during election time, that her job was to give information to uneducated ladies, that there were two parties and that she was with the Federation party.
The Tribunal queried whether this would give her a political profile to put her at risk. It asked the applicant why she had not previously mentioned being involved in any political activity. It recorded her explanation that she did not need to do so because she had come to Australia as the wife of an Australian citizen. She also claimed that she had told her agent everything in connection with her protection visa application.
The Tribunal discussed with the applicant her claims to fear persecution as a single, wealthy businesswoman and based on race as well as political opinion and particular social group. It also raised with her the issue of religion. She claimed that she had become a Christian and that the people did not know she was not a Hindi.
The applicant then claimed that she had played “a very prominent role organising meetings in her shop with ladies from the women's association” who were associated with the Federation Party. Further questioning from the Tribunal followed in relation to the applicant’s involvement with the Federation Party. She reiterated that she had played a “very prominent role” and claimed that her brother would not allow her to stay with him as this would place him in danger of assassination because of her political profile.
The Tribunal recorded that it put to the applicant that it had difficulty believing her claim about her political activity given her failure to mention it prior to the hearing. The Tribunal also recorded that it put particulars of country information in relation to the situation in Fiji to the applicant at various points during the hearing.
After the hearing the Tribunal wrote to the applicant pursuant to s.424A of the Migration Act 1958 (Cth) inviting her to comment on information including the fact that aspects of her claims, in particular her claim to have a prominent profile as a political activist, were first raised at the Tribunal hearing in February 2008. The Tribunal also put to the applicant for comment the text of country information it had referred to at the hearing.
The applicant sought an extension of time to provide a response to the s.424A letter on the basis that she may be able to obtain documentary evidence from Fiji relating to the queries raised by the Tribunal. The Tribunal advised the applicant that her request for an extension of time would not be approved given that she had had ample time since 2002 when she first lodged her protection visa application, that she had not specified what the documentary evidence would be, that there was no certainty that additional documents would be forthcoming and because the primary issue raised by the letter about raising new claims in the February 2008 Tribunal hearing about her reasons for fearing to return to Fiji was within her own knowledge and capacity to comment without further delay.
The applicant provided a response to the s.424A letter within the time provided. She reiterated that she had told her previous migration agent everything and claimed that she had not been asked any questions about alliance with a political party by any other Tribunal member. She did not hold a portfolio in the Federation Party and claimed to belong to a particular social group of Indo-Fijian single, wealthy businesswomen. She addressed the characteristics of such a group.
The Tribunal found that applicant’s reasons for claiming refugee status had evolved and shifted since 2002, as set out above. In particular she now claimed that her shop was burned down and she was assaulted in 1987 because she was a prominent political activist as well as because of her religion and race and that she feared harm as a member of a particular social group comprised of single, wealthy Indo-Fijian businesswomen. The Tribunal found that the applicant had presented inconsistent evidence about matters at various times and raised several significant new claims for the first time at the last Tribunal hearing.
The Tribunal had regard to the age of the applicant. It accepted that she was in poor health with a variety of medical conditions, but observed that despite the provision of medical reports it had not been asserted that the applicant was in any way incapacitated from giving evidence or presenting her claims before the Tribunal as constituted or previously.
Despite problems with her evidence, the Tribunal accepted the applicant's claim that her shop was burned in 1987, reopened by her some months later and was still operating under her name with a different owner. However it stated that it had difficulty accepting her evidence about her mistreatment during the 1987 coup and her claimed political activity at that time.
The Tribunal observed that these specific claims were not made initially. It found that the evidence about them was “somewhat unsatisfactory”. It noted that none of the three statutory declarations the applicant had submitted to the Tribunal in February 2008 in relation to events of 1987 mentioned the claim that the applicant's shop had been burned. It found her oral evidence about the events at that time to be exaggerated, at least in part. The Tribunal referred to the fact that the applicant claimed she was severely tortured. It did not accept that the mistreatment she complained of (that she was pushed around, her hair was pulled and she was robbed of her wallet and jewellery) could properly be described as "torture". It found that the applicant had presented inconsistent evidence as to the reason for the burning of her shop, initially claiming she feared harm as an Indo-Fijian and subsequently referring to her political activity and political prominence.
The Tribunal discussed country information in relation to the situation in Fiji since the 1987 military coup, inter-racial tension and violence against the Indo-Fijian community. It was satisfied that Indo-Fijians had not been subjected to routine or widespread violence and harassment on racial or political grounds since 2000 and that since 1987 members and supporters of political parties ousted in the coups had generally been able to express their political views, campaign and be represented in Parliament without undue difficulty.
Notwithstanding the problems the Tribunal raised about the applicant's evidence, it reiterated that it accepted that her shop was burned and that she was robbed and assaulted at the time of the 1987 coup. However it found that those incidents took place in the context of generalised violence at that time. Based on country information it was satisfied there was no real chance that similar mistreatment which would amount to persecution would occur now or in the reasonably foreseeable future. It found that there was no real chance that the applicant would face harm amounting to persecution similar to that inflicted on her and other Indo-Fijians in 1987 because of her race or a political opinion imputed to her because her race.
The Tribunal did not accept the applicant’s new claim that she was well-known to native Fijians because of her political profile, that she was specifically targeted in 1987 for this reason and would be targeted if she returned now after 18 years. It found her evidence on that issue not to be credible.
The Tribunal summarised the claims the applicant had made about her involvement in political activities. It did not accept her claims about her past political activity, in particular that she had a profile as a prominent political activist that would cause her to be at risk of harm in Fiji. It did not accept that if she had really suffered persecution on this basis in the past or feared it in the future she would not have mentioned this at some stage in the processing of her protection visa application before the last hearing. It did not accept her explanation, which implied that her adviser had failed to pass on a strong Convention based reason for the claimed fear, finding this explanation to be illogical. It also had regard to the fact that the applicant had had a number of different advisers and had appeared at two hearings before Tribunal members. The Tribunal did not accept that the applicant was not given ample opportunity to raise such important claims, given the long history of the application during which she had always been represented. It believed she would have done so had they been truthful. It had regard to the opportunities she had taken to submit written claims.
In the circumstances the Tribunal did not accept that “the applicant was ever involved in significant political activity in Fiji”. It found that her political knowledge was minimal, evidence about her claimed activities vague and that some her claims had been retracted or altered when she was pressed for details. It did not accept that she was engaged in any political activity that would have given her a significant profile in 1987 or at the time of her departure from Fiji. It found that there was no real chance she would be of adverse interest or at risk of persecution now as a result of her political profile.
Hence the Tribunal did not accept that what occurred to the applicant in 1987 was because of any political activity or any political opinion which she actually held. While it accepted that the events complained of had occurred, it found that this was in the context of generalised racial and political violence and not directed at the applicant because of any political activity or opinion.
The Tribunal had regard to country information about changes in Fiji and found the prospect the applicant might face harm for reason of political opinion or imputed political opinion in the reasonably foreseeable future was remote, speculative and not well-founded. Based on independent country information it was not satisfied that human rights abuses such as occurred in 1987 continued to occur in Fiji.
Because the Tribunal did not accept the applicant’s claims that she was a prominent political activist at risk of serious harm, including assassination should she return to Fiji, it did not accept the related claims raised at the hearing in 2008 in the context of those claims. Nor did it accept that ethnic Fijians had continued to express interest in her whereabouts on this basis or for any other Convention reason or that her relatives would refuse to accommodate her because of a risk posed to them as a result of her political activity. On her evidence and because it did not accept her claims about past political activity the Tribunal did not accept that the applicant would engage in political activity if she returned to Fiji, but was satisfied she could safely engage in peacefully political activity should she wish to do so.
The Tribunal also addressed the applicant's claims that she was targeted and the events of 1987 occurred because she was an Indo-Fijian, single, wealthy businesswoman and that this group was associated with the NFP. The Tribunal found such a suggestion to be contrary to all the applicant's other evidence and found no independent evidence to suggest that members of such a particular social group were targeted in 1987 because of membership of that group or because of the group's imputed association with the NFP. It reiterated that the violence of the time was motivated for the essential and significant reason of race, although there was a political element in it, but it was satisfied for the reasons given that there was no real prospect of such racially and politically motivated violence recurring in the reasonably foreseeable future. Hence the Tribunal found that even if the applicant was a member of a particular group which was targeted in 1987 because of actual or imputed political association that did not give rise to a well-founded fear of persecution in the changed circumstances.
The Tribunal also addressed a number of other claims that had been made by the applicant at particular times, including a claim that her sister had been thrown out of her home. The Tribunal was not satisfied that any such difficulties reflected a real chance that the applicant may face harm amounting to persecution by reason of her race. It considered her claims in relation to membership of various social groups such as an Indo-Fijian, as a person returning to Fiji with a lot of money, and as a single, wealthy businesswoman.
The Tribunal found no evidence to support the conclusion that Indo-Fijian women or any sub-group were targeted for rape as members of that group or for any Convention reason. It was satisfied on the evidence before it that criminal activity directed against any particular social group of which the applicant may be a member would not be directed against such persons as members of a particular social group, but rather randomly and opportunistically targeting convenient victims.
The Tribunal considered the issue of state protection were there to be private harm. It found on the basis of country information which it discussed that while there were some issues in relation to the effectiveness of the Fijian police force, the applicant would be able to avail herself of adequate and effective protection in relation to any criminal harm she might face in Fiji.
In relation to the applicant's claim based on membership of a particular social group of Indo-Fijian, single, wealthy businesswomen, the Tribunal also observed that she no longer had a business and that she acknowledged that she was neither a businesswoman nor wealthy. It also found the characteristics of the group as claimed were so narrow and specific it appeared it had been formulated to describe the situation of the applicant and the specific circumstances that she claimed meant she was vulnerable to harm. The Tribunal found that to this extent the stated group was defined by the harm the applicant claimed to fear and therefore could not constitute a particular social group. The Tribunal did not accept that such a group was identifiable by its characteristics and distinguishable from Fijian society at large, targeted for persecution or denied protection.
Nor was the Tribunal satisfied that the applicant had a well-founded fear of persecution based on her religion as a perceived Hindu, finding no credible evidence to support such a claim.
Finally the Tribunal addressed the applicant’s claims to fear problems as a woman alone or that she might be vulnerable to disadvantage resulting from generalised social or economic conditions. It had regard to the fact that persecution must involve systematic and discriminatory conduct. It acknowledged that the applicant may not receive the level of health care in Fiji she had been able to access in Australia, but found that however unfortunate this was it was not relevant to a consideration of the applicant's status under the Refugees Convention. Nor was the length of time or the degree to which she had been absorbed into the Australian community relevant to the Tribunal determination.
The Tribunal stated in conclusion that it had considered the applicant's circumstances cumulatively to determine whether a person in her overall situation could be said to have a well-founded fear of persecution in Fiji. It concluded that while it was understandable that an elderly, single, Indo-Fijian woman present during the 1987 coup, who had suffered some mistreatment at that time, would feel insecure about returning, particularly given the background of racial and political unrest and discrimination against Indo-Fijians, it did not accept that the applicant as an individual or a member of a group faced a real prospect of serious harm amounting to persecution for any Convention reason should she return to Fiji now or in the reasonably foreseeable future.
The applicant sought review of the Tribunal decision by application filed in this Court filed on 5 May 2008. She filed written submission on 15 August 2008.
At the start of the hearing today the applicant indicated to the Court that she wished a friend accompanying her (who was a retired migration agent) to address the Court on her behalf. The Court gave him and also the applicant an opportunity to make submissions both initially and in response to the submissions of counsel for the first respondent.
Dealing first with what was raised orally, it appears that the applicant contends that the Tribunal raised an issue with her or misunderstood her claims in relation to involvement with political activities. It is not entirely clear whether the applicant is contending that the Tribunal misunderstood her claims or whether she takes issue with the manner in which such evidence emerged at the hearing. I have considered both issues.
In relation to the latter of these issues, the only evidence before the Court as to the Tribunal hearing is the Tribunal reasons for decision, which indicate that questions about the applicant’s political involvement arose naturally after the applicant had claimed to be mingling with politicians. Her evidence in relation to involvement with political activities emerged through a number of questions. Moreover the applicant returned to this issue after a discussion of her religion and other issues. There is no error in the Tribunal considering a claim that emerged in the way that this claim emerged. Indeed if the Tribunal had not considered this claim that would be a matter of concern and a potential jurisdictional error.
Insofar as it is intended to be contended that the Tribunal misunderstood the applicant’s claims, in particular that it understood her claim to be a claim that she was a member or a “prime member” of a political party or group, on the contrary it is clear, as set out in the Tribunal reasons for decision, that it understood that the applicant’s claim was that she was a prominent political activist and that she was not claiming to be a member of any political party.
There is nothing in the evidence before the Court to indicate that the Tribunal misunderstood the applicant's claims as presented to it at the Tribunal hearing. No jurisdictional error is established in relation to the Tribunal consideration of the applicant's claim to fear persecution on the basis of actual or imputed political opinion.
The other issue raised by the applicant in oral submissions took issue with the Tribunal's approach to her request for an extension of time to respond to the s.424A letter. In one sense she raises an issue of procedural fairness. Section 424B of the Migration Act 1958 (Cth) does not apply as the applicant's original application to the Tribunal preceded the introduction of that section. However it has not been established that there was any lack of procedural fairness (or any other jurisdictional error) in the manner in which the Tribunal dealt with the applicant's request for an extension of time. It considered her request and it gave reasons for its refusal to allow her additional time, in particular because the primary issue raised concerned the applicant's own reasons for not raising a claim at an earlier time and that was a matter within her own knowledge and capacity to comment on without further delay.
In fact the applicant did reply within the time allowed. The Tribunal had regard to the applicant's responses in its reasons for decision, in particular in relation to her explanation for why she had not raised such a claim at an earlier time. No error is established in the manner in which the Tribunal approached the applicant's request for an extension of time. It is not apparent that the Tribunal in any way denied the applicant procedural fairness in that regard.
In final submissions the applicant, through her friend, indicated to the Court that she was very sick and had had memory problems. This may be seen as taking issue with the manner in which the Tribunal treated her claims. However it does not establish jurisdictional error. There is no transcript of the Tribunal hearing before the Court and there is nothing to suggest that the Tribunal's account of what occurred at the Tribunal hearing does not accord with what actually occurred at the hearing.
Insofar as the reference to the applicant's illness might be taken as a suggestion that the applicant was in some way disadvantaged or not able to participate in the hearing so that the invitation to the hearing was not in fact of the nature required either by s.425 or by procedural fairness obligations, such a contention is not made out.
As the Tribunal recorded, there was no submission to it to suggest that the applicant was in any way incapacitated from giving evidence or presenting her claims before the Tribunal or at the earlier Tribunal hearings. There is no evidence to establish that her condition was such that in conducting the review the Tribunal denied her procedural fairness or failed to comply with its obligations under s.425.
Turning to the grounds in the application, the first ground in the application refers to the decision having been made and claims that it “was not a ‘privative clause decision’”. The substance of the grounds commence in ground two which is that: “The Tribunal decision was infected with jurisdictional error and procedural error and this was detrimental to the applicant getting a fair hearing because the Tribunal would have had perceived bias against the applicant.”
This appears in essence to be a claim that the Tribunal decision was affected by apprehended bias, having regard to the matters set out in the particulars. The particulars recite the fact that the matter was remitted by the Court and contends that the Tribunal member "did not direct her questions on the basis of the claims made by the applicant but simply went on aggravating the hearing with the earlier claims with the RRT and how the applicant arrived in Australia” and that the Tribunal “only asked all general type of questions (sic)” about the applicant’s previous claims and why the applicant could not return to Fiji but did not raise “specific issues in relation to the applicant's claims.”
The applicant claimed that: “The Tribunal more or less ran the hearing in a manner that it allowed the applicant to say what she wanted.” This was said to circumvent the hearing process “without following the procedures and allowing for questions pertinent to the hearing.” It was submitted that the Tribunal had “the responsibility to focus on questions that is directed to the applicant” so that it could “ascertain the claims.”
The evidence of the conduct of the Tribunal hearing before the Court and indeed of the other aspects of the Tribunal review are not such as to establish apprehended bias from the perspective of what the fair-minded lay observer might reasonably apprehend. It has not been established that such a person, properly informed as to the nature of the proceedings, the matters in issue and the conduct said to give rise to an apprehension of bias, might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question to be decided (see Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982).
As submitted for the first respondent, the Tribunal's summary of the hearing demonstrates that it asked questions designed to give the applicant a full opportunity to articulate her claims, why she did not want to return to Fiji now, whether she feared persecution for any other reason and, indeed raised with her the possibility of other bases for her claims, such as her religion.
It is apparent that the Tribunal asked questions which alerted the applicant to the dispositive issues arising in relation to the decision under review as required by notions of procedural fairness and under s.425 of the Migration Act (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152). In particular, it alerted the applicant to its concerns about the fact that she had not previously made a claim to fear persecution on the basis of political profile.
The Tribunal put to the applicant aspects of independent country information. I note that in so doing and in sending copies of that information to the applicant after the hearing it is clear that it met its obligations of procedural fairness in that regard. The Tribunal ensured that the applicant had a full opportunity to give evidence in support of her claims and also to answer the Tribunal's concerns.
The applicant's general contention of bias or apprehended bias is not established on the material before the Court in relation to the procedure adopted by the Tribunal during the hearing or on any other basis.
Ground three also asserts procedural unfairness in relation to the conduct of the hearing on the basis that “the Tribunal did not address specific issues with the applicant.”
Insofar as this is a contention that the Tribunal failed to give the applicant the opportunity to give evidence and present arguments relating to the issues in the review, it met such obligations. The fact that the Tribunal did not allow the applicant further time to produce documentation from Fiji in response to its s.424A letter is not such as to demonstrate a lack of procedural fairness, apprehended bias or actual bias in the sense considered in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. Nor is the conduct of the Tribunal hearing such as to indicate that the invitation was a hollow shell or an empty gesture.
The Tribunal was entitled to vigorously test the claims of the applicant. The manner in which it recorded that it questioned the applicant is not such as to indicate a lack of procedural fairness or bias. Certainly, there is no lack of procedural fairness demonstrated by the fact that the Tribunal let the applicant respond to general questions as well as respond to specific matters that it raised with her.
The applicant raised in the particulars to this ground a claim that she “is not a person from a legal background and she would have no knowledge in how to conduct her own hearing and is also partially impaired as she has lot (sic) of difficulty in hearing” and that she “would be producing a report from a Hearing Test to the Court”. She did not do so.
At the start of the hearing today the applicant raised an issue about her hearing. Her friend was permitted to make submissions on her behalf as she sought, although I also indicated that the hearing could be conducted in a courtroom that had hearing-link facilities.
Nothing that the applicant raised in this part of the application for review establishes jurisdictional error on the part of the Tribunal. In particular there is nothing to indicate that she raised any issue of impaired hearing with the Tribunal or that any difficulties she may have had in that respect (of which there is no evidence before the Court) are such as to mean that she did not comprehend or understand or otherwise have the opportunity to address issues raised by the Tribunal in the hearing.
No jurisdictional error has been established on the basis contended for in ground three of the application.
Ground four is that there was a breach of s.424A of the Act. It is contended that the Tribunal did not disclose to the applicant “the very nature of the evidence that it relied on” being the evidence “used to highlight the inconsistency between the information held by the Tribunal and the applicant's claims”, that the Tribunal “did not believe the applicant's version of claim (sic) in relation to the events in fiji (sic)” and that the delegate's information and the applicant’s evidence had been “contrasted for the purposes of credit and rejecting the claim.” It was submitted that this information was not within s.424A(3) and issue was taken with the fact that the Tribunal was said to have “steered the hearing in the manner in which it chose” and to have referred to country information to “discredit” the applicant’s claim.
Insofar as the applicant contends that country information should have been put to her under s.424A of the Act, such information is within the exception to s.424A(3). I note in any event that the Tribunal not only wrote to the applicant under s.424A inviting her to comment on information in relation to her fresh claims about involvement in political activities, but also in that letter invited her to provide comments on attached country information which had been referred to in general terms at the hearing. That invitation was not made pursuant to s.424A. The Tribunal indicated there was no statutory time limit for the provision of comments on that material, but requested them by a particular date. It put to the applicant the effect of the country information. It is clear that the Tribunal did not deny the applicant procedural fairness in relation to such country information.
Insofar as the applicant takes issue with other information, she has not otherwise identified the information that she says is within s.424A. The documents, including sworn statements, she provided to the Tribunal fall within the exception in s.424A(3)(b), as does the oral evidence the applicant gave at the hearings before the Tribunal. This is not a case in which the Tribunal relied on information in the protection visa application which it failed to put to the applicant. Insofar as it relied on omissions from the protection visa application, if such omissions constitute information on the basis that they can be distinguished from mere gaps or defects in evidence as considered in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190, in this case the Tribunal in fact put to the applicant in the s.424A letter her failure to mention her political claims prior to the final hearing before the Tribunal.
Thus, insofar as there could be said to be information consisting of the fact that the applicant’s previous claims said so much and no more, the Tribunal met its obligation under s.424A and no error has been demonstrated.
The fifth ground is described as a “Constructive Failure To Exercise Jurisdiction/Failure To Carry Out The Statutory Function.” Again it takes issue with the conduct of the hearing which was said to “continue on its general “unchartered” course”. That claim is not made out on the material before the Court which indicates that the Tribunal afforded the applicant the necessary opportunity in the hearing to put evidence before it and also to address specific issues of concern to it. It put the applicant on notice of dispositive issues and questioned her in relation to her claims and the Convention-based reasons.
It is not established that the Tribunal misapprehended the applicant's claims. She submitted that the harm she suffered was the basis of her claims and that the “burning of her shop and the beating she endured was not an isolated incident.” The Tribunal accepted that such events had occurred. It considered and rejected the claims that she feared future persecution as a result of harm she suffered as an Indo-Fijian or for any other reason during the coup of 1987, including because of race or political opinion or that she had a well-founded fear of similar mistreatment in the future amounting to persecution.
The Tribunal also considered the possibly of persecution as a result of the applicant’s political profile and political activities, membership of a particular social group, (particularly the social group she had claimed she belonged to comprising Indo-Fijian, single, wealthy businesswomen) and her claims to be at risk of criminal activity and for reason of her Hindu religion. It also considered her claims that she faced problems as a woman alone and because of ill health and the time she had spent in Australia of for cumulative reasons.
No jurisdictional error is established on the basis contended for under this ground.
It is next contended that “No findings in relation to effective state protection appears to have been made” as should have been. However, contrary to this assertion, the Tribunal found that that the Fijian authorities took reasonable measures to provide protection on a non-discriminatory basis to all Fijian citizens and that the applicant was able to avail herself of adequate and effective protection in relation to any criminal harm she may face in Fiji.
Under the heading "Procedural Unfairness - Convention Reasons Not Pursued" it is claimed that the Tribunal “did not ask her or address the Convention reasons.” This appears to be a contention that the Tribunal failed to apply the correct legal test, although aspects of the particulars suggest that it is claimed that the Tribunal denied the applicant procedural fairness and became “fixated with pre determined conclusions about her case”.
The applicant's contentions that she was not asked about and that the Tribunal did not address Convention reasons are not made out. The Tribunal correctly set out the legal principles at the commencement of its reasons for decision and applied those to the evidence provided by the applicant. It assessed the applicant's claims according to whether she claimed persecution by reason of race, religion, actual or imputed political opinion or membership of a particular social group. It has not been established either that it failed to apply the correct legal test or, as discussed above, that it denied her procedural fairness. On the contrary, in the hearing it raised with her these possibilities and gave her the opportunity to tell the Tribunal if there was any basis for her claimed fear of persecution.
It is then contended generally that “unreasonableness and illogicality flows from the tribunal's failing to make a finding on a factual basis to support the decision.” It is said that the Tribunal “failed to scrutinise the claim rather being dismissive of the claims”, that it “did not seek to ascertain whether there would be future harm having regard to the previous pattern in its application to Fiji”, and failed to ask or address questions about the applicant's class and future harm, that it was irrational, unreasonable, illogical and that the decision was infected with Wednesbury unreasonableness.
Insofar as the applicant claims that there was no factual basis to support the Tribunal decision, it is clear that the Tribunal considered the claims made by her in a number of respects and gave reasons that were open to it. This cannot be described as illogical or irrational reasoning, let alone illogical or irrational in such a manner as to demonstrate a jurisdictional error, whether on the basis of an absence of probative evidence or a failure to appreciate or apply the correct test or otherwise. This ground is not made out. Nor is it established that the Tribunal decision was unreasonable in the sense of Wednesbury unreasonableness.
Insofar as the applicant seeks merits review in these contentions, merits review is not available in this Court.
The next ground is that the applicant “constitutes a particular social group against which the finding of protection ought to have been found” and that the Tribunal failed to identify the particular social group which she claimed to belong to, being single, wealthy, Indo-Fijian businesswomen. She set out what she claimed were the characteristics of such a social group. However the Tribunal considered but rejected the applicant's claims in this respect. It did make findings in respect of the particular social group of which the applicant claimed to be a member. It also considered possible other social groups that had been raised at various times. Its reasons in that respect do not establish a jurisdictional error in the manner contended for by the applicant.
The next ground is that no finding in relation to relocation had been made and that it had to be. However the Tribunal was not required to make a finding regarding relocation, given that it had determined that the applicant did not have a well-founded fear of persecution in Fiji as a whole.
It was also claimed that the Tribunal “failed to consider the applicant's claims of well founded (sic) fear of persecution but went on asking how many brothers and sisters” she had and did not address her specific fears. Insofar as this takes issue with the Tribunal hearing, it is apparent that many issues were covered in the hearing, not simply the number of brothers and sisters that the applicant had, as discussed above. The Tribunal reasons for decision did consider all the ways in which the applicant had claimed to have a well-founded fear of persecution.
The applicant contended generally that the Tribunal failed to deal with a particular aspect of her claims. This claim is not made out. Insofar as it is contended that the Tribunal must consider claims that arise on the evidence even if not articulated by the applicant (see NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695), I note in that respect that the Tribunal took at their highest the claims that might be seen to have been made by the applicant based on what she had said to it about her involvement in political activities and on other bases. No jurisdictional error is established on this basis.
In written submissions the applicant argued that the decision of the Full Court of the Federal Court in SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138 was “helpful” as it was said to be strongly related to her case. In SZHKA the Full Court of the Federal Court considered whether a further Tribunal hearing was required where a matter had been remitted to the Tribunal for reconsideration and a hearing had been held before the Tribunal as originally constituted. The majority of the Court held that an invitation to a second hearing was required in every case. The whole Court held that in any event an invitation to a second hearing was required in the particular circumstances of that case. It is not necessary to consider this case further because in the present case the Tribunal as reconstituted following the second remittal issued an invitation to the applicant to attend a hearing. The applicant attended the hearing and the principle in SZHKA does not assist the applicant.
As no jurisdictional error has been established on any of the bases contended for by the applicant the application must be dismissed.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful and there is nothing in the circumstances of this case to warrant a departure from the general principle that the unsuccessful applicant should meet the costs of the first respondent.
The applicant suggested that when the matter was last remitted by consent by this Court differently constituted, orders had been made by that the first respondent pay the reasonable costs of the applicant as agreed or taxed but that there had not been agreement and that that should somehow be taken into account in these proceedings.
The orders made on 6 November 2007 were for the first respondent to pay the reasonable costs of the applicant as agreed or taxed. There is no evidence before me as to whether or not those costs have been taxed. This would be the approach for the applicant to take if there has been no agreement. It is not a matter to be dealt with in these proceedings.
The amount sought by the first respondent in this case is less than the sum provided for as the starting point in the Federal Magistrates Court Rules. I consider in light of the nature of this and other similar matters that the amount of $4,900 which is sought is appropriate.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 16 September 2008
0
6
0