SZIML v Minister for Immigration

[2006] FMCA 1296

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIML v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1296

MIGRATION – RRT decision – Indonesian women of Chinese ethnicity – claimed sexual harassment by native Indonesians – failed to attend hearing –clearly articulated claim not addressed by Tribunal – jurisdictional error found.

Migration Act 1958 (Cth), ss.36(2), 414(1), 426A(1), 430, 474(1), 476(1)

Applicant S v Minister for Immigration (2003) 217 CLR 387
Applicants S1527 of 2003 v Minister for Immigration [2005] FMCA 1846
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister of Immigration v Khawar (2002) 210 CLR 1
Murphy v Minister (2004) 135 FCR 550 at 564
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
SZBNF v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 485
Vanstone v Clark (2005) 147 FCR 299
VNAA v Minister for Immigration (2004) 136 FCR 407
WAEE v Minister for Immigration (2004) 75 ALD 630

Applicant: SZIML

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 736 of 2006

Judgment of: Smith FM

Hearing date: 31 August 2006

Delivered at: Sydney

Delivered on: 14 September 2006

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Ms R Henderson

Solicitors for the Respondents: Blake Dawson Waldron

ORDERS

1. A writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent handed down on 7 February 2006 in matter N05/52718.

2. A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated

   
   

   18 October 2005.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 736 of 2006

SZIML

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed on 13 March 2006 under s.476(1) of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 18 January 2006 and handed down on

   
   

   7 February 2006.  The Tribunal affirmed a decision of a delegate made on 18 October 2005 which refused to grant a protection visa to the applicant.

2. Under s.476(1) the Court has “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but its powers are confined by s.474(1) if the Tribunal’s decision is a “privative clause decision”. It is such a decision unless I am satisfied that it was affected by jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476). I do not have power myself to decide whether the applicant’s claims should be believed, nor whether she qualifies for a refugee visa.

3. The applicant is an Indonesian national of Chinese ethnicity and Christian religion.  She arrived in Australia in August 2005, and lodged an application for a protection visa on 30 September 2005. 

   
   

   Her application did not disclose any assistance from a migration agent or other person.  She said that she lived in the town of Singkawang, Selatan, where she had been a “small business owner” from 1990 to 2005.  She also gave this town as the place where she had been born and educated.  She set out her reasons for claiming protection in Australia in a brief typed statement.  It said:

   My name is [name] and I was born in Singkawang, Indonesia on [day and month] 1966.  I came from a Chinese family, an ethnic group which had been targeted by the native Indonesian.  I came to Australia to seek protection as my house in Jakarta had been looted and burnt down to ashes.  Some of my female relatives living in Jakarta were raped by the local.  I was often sexually harassed by the native Indonesian at work and in the neighbourhood.  Derogatory remarks were often made by them towards the Chinese.

   There was no security for me to stay in Indonesia.  Human rights seems had been neglected.  As we know, on 13 and 14 May 1998 particularly in Jakarta was the beginning of the disaster.  For an ethnic Chinese Indonesian where there were riots, the buildings were burnt, the shops were looted.  The image of antipathy could be seen at some occurrences in Indonesia recently, in which many churches, mosques, houses, schools, were burnt.  The tensions between ethnics (Christian and Muslim) have risen so dramatically.  The army seems to be part behind many incidents in Indonesia’s province.  Many Chinese people and non-Islam people were tortured before 1997, however at present time Islam people killed each other.  The problems seemed worse and worse with some rumours that the elite political ruler played an important rule behind the massacre and ethnic tension.

   Still fresh in my mind the incident where only because of the gangs fight and it had cause many mosques were burnt.  I saw with my own eyes the mass in a huge amount who I did not know where they came from had assembled behind my house’s mosque.  The mass with cruel faces and brought along the knives and shouted “Burnt the mosques, Kill the Chinese” because there is a mosque together with the schools near my house.  At that time, my family and I were so afraid especially my parents, then all of us gathered in one room and prayed.  After that, my neighbour rang us and asked us to go down and evacuate to his house.  At the end, all of us hidden in my neighbour’s house.  This is the incident which I really knew because this incidents happened surrounding my place. 

   I am afraid to go back as the possibility of being killed by the mob.  They painted “Pribumi Muslim, Kill Chinese” on every corners of the road in the district of Jakarta.  There was a very reliable rumour that before 17 August 1998 (the Indonesians Independence Day), there would be no more Chinese left in the country.  This ‘ethnic cleansing’ act is terrifying everyone in the country as the authorities have not provided any precautionary measures to date to protect us.

   Now I am begging to the authorised persons, please let me stay and live in Australia for the rest of my life, because it concerns to my whole life and safety.  I know that Australia has policy as well as mercies to people like me as shown to people from Vietnam, China, Lebanese, and a lot from many other countries.

   I am very grateful and would truly appreciate it if I have a chance to stay and live in this country.

4. The delegate refused the application on 18 October 2005.  He pointed out:

   The applicant provides no evidence to support her claims and no other information regarding any adverse incidents she has personally experienced.  Her claims are very general.  She does not specify who she thinks looted and burnt her house.  She does not provide any specific dates of the claimed incidences of rape or sexual assault or harassment on herself or her female relatives, or any information in relation to attempts to seek redress. Her claims are unsubstantiated.

5. The applicant applied for review by the Tribunal on 18 November 2005.  She again did not employ an agent, and asked that any correspondence should be sent to an address in Pitt St, Sydney. 

   
   

   She attached a short statement, which said:

   I came to Australia to seek protection as my house in Jakarta had been looted and burnt down to ashes.  Some of my female relatives living in Jakarta were raped by the local.  I was often sexually harassed by the native Indonesian at work and in the neighbourhood.  Derogatory remarks were often made by them towards the Chinese.  Many Chinese people and non-Islam people were tortured before 1997, however at present time Islam people killed each other.  The problems seemed worse and worse with some rumours that the elite political ruler played an important rule behind the massacre and ethnic tension.  I am afraid to go back as the possibility of being killed by the mob.  They painted “Pribumi Muslim, Kill Chinese” on every corners of the road in the district of Jakarta.  Now I am begging to the authorised persons, please let me stay and live in Australia for the rest of my life, because it concerns to my whole life and my safety.

6. The Tribunal sent to her mailing address a letter dated 29 November 2005.  This told her that the Tribunal was unable to make a decision in her favour on the material before it, and invited her to attend a hearing on 17 January 2006.

7. The Tribunal received no response to that invitation, and there was no appearance by the applicant at the appointed time.  The Tribunal said in its statement of reasons for affirming the delegate’s decision: “pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.” 

8. The application to this Court does not challenge the Tribunal’s decision to proceed in that manner. There is no evidence allowing me to conclude that it was not authorised to proceed under s.426A(1), nor to conclude that the Tribunal’s exercise of its discretion miscarried.

9. When I invited the applicant to explain her absence from the hearing, she blamed herself, and was distressed at having lost that opportunity.  She said that she had given the Tribunal a postal address of a friend, and that the letter did not come to her attention in time for her to attend the hearing because she was on holiday in Melbourne.  Although she was not under oath, I accept that she did not have actual notice of the hearing appointed by the Tribunal.  Unfortunately, this fact alone does not allow me to set aside the Tribunal’s decision so that she can be given a second opportunity to explain her claims to the Tribunal (see Murphy v Minister (2004) 135 FCR 550 at 564, VNAA v Minister for Immigration (2004) 136 FCR 407 at [14]-[15], SZBNF v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 485).

10. Her application and amended application do not present a clear argument as to any jurisdictional error made by the Tribunal.  However, they include a general contention that the Tribunal “has not taken or adequately taken into consideration the applicant’s claims that she and her family had been discriminated in the past by the local Indonesian by reason of her race”.  At a show cause hearing, I raised this ground with the Minister’s representative, and gave it more specific content in my order appointing a final hearing.  This noted that the Court would consider whether the Tribunal failed to address the applicant’s claim that her female relatives were raped and she was “often sexually harassed by the native Indonesian at work and in the neighbourhood”.

11. A familiar issue was thus raised for my determination, which is whether the Tribunal made a jurisdictional error as described by the Full Court in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1. Their Honours held at [48-51], [55] that the failure by a Tribunal to make a finding on “a substantial, clearly articulated argument relying upon established fact” can amount to jurisdictional error as a failure to carry out the review required by s.415 of the Migration Act. At [63] they said:

    “It is plain enough, in the light of Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389, that a failure by the tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error.  It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error.  The same maybe true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal.  Every case must be considered according to its own circumstances.  Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome.

12. Their Honours also said at [68] that a “judgment that the Tribunal has failed to consider a claim not expressly advanced is … not lightly to be made.  The claim must emerge clearly from the materials before the Tribunal.” 

13. Allsop J has given further guidance:

    “From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61].  As the Full Court said at [63] much depends on the circumstances.  Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence.  A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy. (NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15]).

14. In the present case, I consider that there was “clearly articulated” in the applicant’s brief statements which were before the Tribunal, and which I have set out above, a significant claim that she was at particular risk in her home town of sexual harassment by non-Chinese Indonesians because she was a woman of Chinese ethnicity.  This claim was not confined to any particular past period of time, and in particular it was not confined to a past period when ethnic tension was shown in rioting by the “native Indonesian”.  It might have been analysed as either a Convention claim to fear persecution by reason of “membership of a particular social group” distinguished by gender and race and, perhaps, also other features of non-native Indonesian women living in the applicant’s town (c.f. Minister of Immigration v Khawar 210 CLR 1 per Gleeson CJ at [32-35], McHugh and Gummow JJ at [81-83] and Kirby J at [127-131]). It might also have been considered as a significant and separate element in the applicant’s fear of persecution “for reasons of race”. Implicitly, she contended that her experiences amounted to “persecution” and that she had been given inadequate protection by the Indonesian state authorities.

15. It is true that the applicant’s claim to fear sexual assault and harassment as an ethnic Chinese woman was presented without details and without supporting evidence in the material upon which the Tribunal decided the matter.  My mind has fluctuated whether for that reason, it might not satisfy the Full Court’s requirement that a claim requiring attention by a decision-maker should be “substantial … (and) relying on established fact”. However, in my opinion, the Full Court did not intend to suggest that a clearly presented claim such as the present could be completely ignored. The Tribunal has under s.414(1) a statutory duty to “review” the merits of every refugee claim which is brought before it in a valid application for review. It is given no power to decide a case without addressing the merits of an applicant’s claims and, in particular, is not given that power when authorised under s.426A(1) in the absence of an applicant at a hearing to proceed to “make a decision on the review without taking any further action to allow or enable the applicant to appear before it”.  In my opinion, on the above principles, it was incumbent upon the Tribunal to identify and address the present applicant’s claim to be at particular risk by reason of her combined gender and ethnicity before affirming the decision of the delegate.

16. I accept that it would have been open to the Tribunal to have addressed the claim, either specifically or globally with the applicant’s other claimed reasons for fearing to return to Indonesia, by affirming the delegate’s decision on the ground that the claim was not presented with sufficient evidentiary support to allow the Tribunal to be satisfied in terms of s.36(2) of the Migration Act (c.f. Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [17], and NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 at [4]-[5]).

17. However, as will appear below, the Tribunal did not follow such reasoning in the present case.  Rather, it purported to isolate the elements of the applicant’s refugee claims, and then to address each of them by reference to relevant general country information.  In my opinion, when following this process, it clearly failed to address the applicant’s important claim of gender-based racial harassment, and to explain why it was not satisfied in relation to that claim.  Its reasoning therefore shows that it did not complete its required review function.

18. To explain this conclusion, I must analyse the Tribunal’s statement of reasons which it provided under s.430 of the Migration Act.

19. Sitting in this Court’s migration jurisdiction, I have reviewed hundreds of decisions of the Refugee Review Tribunal.  Reading the present statement of reasons, I gained the strong impression that the member constituting the Tribunal in this case has “cut and pasted” most of his statement of reasons from previous decisions relating to other Indonesian claimants.  This impression extends beyond the Tribunal’s discussion of legal principles and general country information, and includes most of his discussion under the heading “finding and reasons”. 

20. However, this would not of itself provide grounds for setting aside the decision, even if I were affirmatively satisfied that the reasons were prepared in this manner.  In Applicants S1527 of 2003 v Minister for Immigration [2005] FMCA 1846 at [18]-[20] I considered relevant authorities in the context of a similar statement of reasons, and concluded:

    [20] I consider that the adoption by a Tribunal member of phrases taken from previous Tribunal decisions, whether written by a different member or by himself or herself, cannot of itself amount to jurisdictional error.  Jurisdictional error might be found where the adoption of findings appears to the court to have led to a failure by the member constituting the Tribunal to address the particular review with an unbiased and open mind, or a failure actually to perform the Tribunal’s review duty in relation to the particular application for review which is required by ss.414 and 415 of the Migration Act.  However, even the adoption of text which makes findings specific to the credibility of an individual applicant might not suggest a failure to exercise jurisdiction.  As French J said in WAFK v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1293: 

    [52]It appears clear that the Tribunal has borrowed from the text of earlier Tribunal decisions or from some common source which is used in cases of this kind.  While each case must turn upon its own circumstances, I am not satisfied that the mere fact of the use of common form text in relation to statements of general principle, general conclusions about country information and even findings of credibility in similar cases is necessarily indicative of jurisdictional error.  It is, of course, in the latter area, that is to say findings of credibility in the particular case, that the Tribunal should be at pains to make it clear that it has given careful consideration to the detail of the application which it is required by the Act to review.  I do not consider that resort by the Tribunal to common form texts for the purpose of findings of credibility in respect of a particular applicant is desirable.  However, in this case the use of that text was sufficiently modified by reference to the particular circumstances of the appellant’s claims to indicate that the Tribunal was giving consideration to the appellant’s case. 

1. In the present case, I consider that it is possible that a ‘cutting and pasting’ approach to judgment writing might explain the error which is revealed in the present statement of reasons.  However, the impressions which lead me to suggest this, do not provide my reasons for concluding that the Tribunal did fail to address the applicant’s fears of gender based racial fears.  Nor can they provide reasons for overlooking the error shown.  I have arrived at my conclusion of jurisdictional error based solely upon my examination of the particular reasons provided by the Tribunal in the present case, and not its reasons given in other cases.

2. The Tribunal’s statement of reasons is divided by section headings.  After providing sections on the decision-making history of the matter and on the legislation and definition of “refugee”, there is a heading “claims and evidence”.  This summarised the contents of the applicant’s visa application, including her statement which I have extracted above.  It is therefore clear, that the Tribunal member read that statement when preparing this part of his statement of reasons.  However, his description contains no analysis of the applicant’s statement, and no particular passage which would confirm that he appreciated that she made a claim to have often been sexual harassed at work, which was additional to her concern of racially based rioting, and which required specific consideration. 

3. The applicant’s statement to the Tribunal is only identified briefly: “in her application to the Tribunal, she restated the above claims”.

4. The statement of reasons then provides 18 pages of discussion of “independent evidence”.  This extracts and analyses information on topics indicated by headings: “Religion”, “Discrimination towards Ethnic Chinese in Indonesia”, “Ethnic Violence”,  “the 1998 riots”, “State protection”, “Post-Soeharto Indonesia”, “Chinese Indonesian participation in politics”, and “The Situation since 11 September 2001”. 

5. Nowhere in this discussion is there any identification of information concerning the prevalence of sexual harassment of ethnic Chinese women in the applicant’s locality or elsewhere in Indonesia, nor as to the measures of state protection afforded to such women.  All the discussion of past and present risks of harm to ethnic Chinese Indonesians addressed this group of people without any distinction as to gender based sub-groups.  The only reference to women which I identified was in a discussion of 1998  riots:

   … in mid 1998 hundreds of people, both native Indonesians and ethnic Chinese, died when shops were burned in later riots.  Subsequent advice from the Department of Foreign Affairs and Trade was that ethnic Chinese people in mid 1998 experienced aggravated robbery and assault (including sexual assault against women) during such rioting.  There have also been some allegations of murder …

6. The Court Book in the matter contains bulky extracts of the sources of information cited by the Tribunal.  I have not examined this to discover the extent to which it might have provided relevant information to the Tribunal concerning the situation of Chinese women in Indonesia.  Counsel for the Minister noted that there was at least one section of a 2004 Country Report on Human Rights Practices in Indonesia which referred to the general situation of Indonesian women, including the statement: “According to a statement during the year by the State Ministry of Women’s Empowerment, 90 per cent of women and 25 per cent of men have been victims of sexual harassment in the work place”.  However, nowhere in the Tribunal’s reasons is there any indication of an awareness that information such as this might be relevant to the consideration of an important element in the applicant’s claims.

7. The Tribunal’s reasons then provided four pages of “findings and reasons”.  This contained at the start, a one sentence summary of the applicant’s claims:

   The applicant claims that as an Indonesian of Chinese ethnicity and Christian religion, she has suffered harassment and that her house in Jakarta was looted and burnt, and should she return to Indonesia, she fears she will be harmed because of her religion and her race, and that the authorities will not protect her.

8. A concern from this summary is that it fails to identify that the harassment which was feared by the applicant was gender-based, and that this was put forward as an additional reason for the applicant’s apprehensions as an Indonesian of Chinese ethnicity and Christian religion.  The concern that this might have been overlooked is then confirmed by the Tribunal’s analysis of the particular components of the applicant’s claims, which emerges from the headings provided for its reasoning.  Those headings are: ‘persecution for reason of religion’, ‘persecution for reason of race’, ‘discrimination’, and ‘riots’.

9. The Tribunal’s findings and reasoning in relation to ‘reasons of race’ were:

   The Tribunal accepts that the applicant is an Indonesian of Chinese descent and that this characteristic is one which would constitute the ground of “race” under the Convention.

   The Tribunal also accepts that Chinese were killed and Chinese property was destroyed in the 1998 riots and accepts that the applicant personally suffered harm.  The Tribunal accepts that this would have been a frightening time for the applicant, and one which has left her with feelings of insecurity.

10. Clearly, this did not address the applicant’s concerns of sexual assault and harassment occurring outside periods of rioting.

11. Its discussion of ‘discrimination’ considered the removal of discrimination in Indonesia against Chinese people generally, and made no reference to the situation of Chinese women.

12. Its discussion of ‘riots’ also has no discussion of the particular position of women during periods of rioting, although a reference to their risk of sexual assault during these periods might obliquely be found in the finding:

    There is no doubt that past ethnic unrest and riots in Indonesia, and in particular the events of 1998, involved the threat of serious harm.  The Tribunal accepts that Chinese caught up in Indonesia’ sporadic rioting can face death, significant personal injury, or significant detriment.

13. This component of the applicant’s claims might then be found to have been adequately addressed by its further reasoning:

    Therefore, the Tribunal accepts the applicant has a subjective fear of racial unrest against Chinese should she return to Indonesia.  However, is such fear well-founded, that is, is there a real chance or merely a remote chance of such harm occurring in the reasonably foreseeable future? (emphasis in original)

    …

    In the light of the Tribunal’s finding that the events of 1998 were of a particular historical severity and that six years have passed during which there has been a virtual absence of anti-Chinese rioting, the Tribunal finds there is no real chance that such events will re-occur in the reasonably foreseeable future.  The Tribunal therefore finds there is no real chance of harm to the applicant in the reasonably foreseeable future if she returns to Indonesia.

    CONCLUSION

    Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.  Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.

14. Counsel for the Minister submitted that the above findings also sufficiently revealed the Tribunal addressing the applicant’s fears arising from sexual harassment by ‘native Indonesians’ outside periods of rioting, taking into account the brevity of the applicant’s evidence.  However, in my opinion, they plainly did not address the applicant’s situation as a woman claiming to be at risk of racially targeted sexual harassment “often …at work and in the neighbourhood” outside periods of rioting.  Considering the Tribunal’s statement of reasons as a whole, I would infer from the absence of any pertinent findings and discussion about this claim that it was overlooked by the Tribunal when it came to decide the matter (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [35], [69], [75], and WAEE v Minister for Immigration (2004) 75 ALD 630 at [47], also Vanstone v Clark (2005) 147 FCR 299 at 359-360).

15. For the above reasons I consider that the Tribunal’s decision was affected by jurisdictional error, and that the applicant is entitled to relief by way of writs of certiorari and mandamus.

16. Counsel for the Minister obliquely suggested that the applicant should be denied relief because of an inconsistency in her claim to have been sexually harassed “at work”.  She argued that this could have been treated by the Tribunal as lacking in substance, because it was inconsistent with the applicant’s statement elsewhere in her visa application that she was a “small business owner”.  In response, the applicant said that she had run a stall in the town market and had been continually harassed by Muslim Indonesian men.

17. Of course, neither of these factual contentions is a matter for me to make findings about.  Plainly the Tribunal did not dismiss the applicant’s claim on the basis suggested by counsel for the Minister, and it did not consider the applicant’s explanation since she missed the opportunity to give it. 

18. I do not accept the point made by counsel for the Minister as providing a reason for me to refuse relief on discretionary grounds.  It is not my function to decide whether the Tribunal might or might not have accepted the credibility of the applicant’s claims.  The reasoning it provided did not reject them on the basis suggested by counsel, and she is entitled to have her claims further considered.

19. I accept that the applicant’s absence from the hearing where she could have explained her claims was unwitting and is regretted on her part. 

    
    

    It remains possible that, if the Tribunal had not overlooked what might appear to be the applicant’s most significant reason for fearing to return to her home town, it might have decided that it should seek further information from her and from other sources.  It might have decided that she should be afforded a further opportunity to attend a hearing for this purpose.  I consider in the present case that “the failure of the (applicant) to put evidence before the Tribunal concerning (her sexual harassment claim) was not a ground for refusing to set aside the Tribunal’s decision, once it is accepted that the Tribunal erred in not considering the issue of ‘a particular social group’” (c.f. McHugh J in Applicant S v Minister for Immigration & Multicultural Affairs (2003) 217 CLR 387 at [76]-[77]).

20. In all the circumstances of this case, I would not refuse to give the applicant relief which recognises the invalidity of the Tribunal’s decision.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Iliya Marovich-Old

Date:  14 September 2006