SZIZA v Minister for Immigration

[2007] FMCA 372

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIZA & ORS v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 372

MIGRATION – RRT decision – Fijian of Indian race and Hindu religion – history of persecution disbelieved by Tribunal – findings that written claims fabricated – bias and procedural unfairness not established – no jurisdictional error found.

Migration Act 1958 (Cth), ss.422B(1), 424A, 424A(1), 424A(3)(a), 424A(3)(b), 425, 474(1), 476(1)

Kim v Minister for Immigration & Multicultural Affairs [2006] FCAFC 64
Minister for Immigration & Multicultural Affairs v Lay Lat (2006) 151 FCR 214
Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs(2004) 214 ALR 264
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
SZBDF v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 148 FCR 302
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63
SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62
SZHFH v Minister for Immigration & Anor [2007] FMCA 124
SZIAY v Minister for Immigration & Anor [2006] FMCA 1680
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102

First Applicant: SZIZA

Second Applicant: SZIZB

Third Applicant: SZIZC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1795 of 2006

Judgment of: Smith FM

Hearing date: 15 February 2007

Delivered at: Sydney

Delivered on: 30 March 2007

REPRESENTATION

Counsel for the Applicant: First applicant in person

Counsel for the First Respondent: Mr J Mitchell

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application is dismissed. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1795 of 2006

SZIZA

First Applicant

SZIZB

Second Applicant

SZIZC

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed on 26 June 2006, which has been set down for final hearing on whether the applicant is entitled to relief under s.476(1) of the Migration Act 1958 (Cth) (“the Migration Act”) in relation to a decision of the Refugee Review Tribunal (“the Tribunal”) dated 26 May 2006 and handed down on 6 June 2006. The Tribunal affirmed a decision of a delegate made on 9 February 2006 which refused to grant a protection visa to the applicants. They are a father and his two daughters, whose refugee claims were presented as those of the father. As did the Tribunal, I shall refer to him as “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 (2003) 211 CLR 476). I do not have power myself to decide whether the applicant’s refugee claims should be believed, nor whether he and his daughters qualify for a refugee visa.

3. The applicant is a Fiji national, of Indian ethnicity and Hindu religion.  He and his daughters made earlier trips to Australia, before they last arrived in October and November 2005.  He lodged a protection visa application on 16 November 2005.  It stated that it was prepared with the assistance of his sister, a registered nurse.  A lengthy typed statement narrated a history of harassment by indigenous Fijians involving the applicant and members of his family since the late 1980’s.  This included detailed descriptions of incidents of home invasion, robbery, serious assaults, threats of death and rape, the stoning of his homes, religious insults, destruction of “our prayer site”, and “politically motivated attack” on the applicant as a supporter of the Fiji Labour Party.  The statement concluded with the claim: “I fear fearful of returning to Fiji because of my race, religion and political opinion and because of the fact that I have this grave fear of Fijians.  This fear is real because I have been assaulted by them and have been threatened harm against my two daughters”.  No corroborative evidence of the incidents was presented to the Department nor, subsequently, to the Tribunal. 

4. The delegate gave various reasons for refusing the application.  These included the suggestion that some of the incidents occurred at times when general law and order had broken down in 1987 and 2000, and that other incidents were “criminal in nature, and not Convention related persecution”.  However, the delegate also doubted that the applicant’s experiences had “left him fearing persecution upon return” to Fiji after a visit to Australia in 2003, and concluded: “had the applicant and his family considered themselves to be at risk of persecution in 2003 and in 2004/5 for a Convention reason, then it is reasonable to consider that they would have applied for a Protection visa prior to this application”. 

5. On appeal to the Tribunal, the applicant was assisted by a migration agent, who submitted a lengthy submission with press cuttings in support of the applicant’s claims as to the general situation in Fiji.  The applicant then attended a long hearing held by the Tribunal on 19 April 2006.  A transcript of that hearing is in evidence, and I have read it all. 

6. Early in the hearing, the Tribunal member became concerned because the applicant appeared unable to provide descriptions of incidents with the detail which had appeared in his written statement supporting the visa application.  She therefore explored how the written statement had been prepared.  The applicant said that “the fact which was happened with me in Fiji, I had written myself and my sister she has been typing those documents for me”.  He suggested that he had been keeping contemporaneous notes of incidents: “anything was happening with me all the time, I was writing it on the paper and I was collecting all my incident, which was happening with me”.  Later in the hearing, he said this record was “at home” “on a piece of paper”, and agreed to provide the original record to the Tribunal on the day after the hearing.  The Tribunal member warned him that “just because it is there, it doesn’t mean that I would accept it contains truthful information about what happened”.  The Tribunal allowed a break in the hearing, which allowed the applicant to discuss this with his sister, who also attended the hearing as a witness.  She confirmed that she had “typed it up”, and that “he had a piece of papers written on papers”. 

7. In the course of the hearing, the Tribunal identified some inconsistencies as to the date of one of the claimed incidents, and a claim as to a further incident which had not been previously mentioned.  It also noted problems in his evidence as to his association with the Fiji Labour Party.  It warned him about its concerns, and at least one point expressed a general concern: “I put to you that I’m getting an impression that you’re making things up during the hearing and that concerns me”.  I shall make further findings as to the general tone and content of the hearing below. 

8. Following the hearing, the Tribunal sent to the applicant an invitation to comment under s.424A(1) in relation to several matters, which it said “raises doubts about the claims and the applicant’s credibility generally”.  They included: 

   ·In the course of the hearing on 19 April 2006, the applicant could not provide significant details in relation to many aspects of his claims, stating that his memory is not very good.  As put to the applicant, the statement provided to the Department in support of the application for a protection visa is comprehensive, setting out in great details the applicant’s claims.  The applicant stated that the statement is detailed because he had written down the incidents and their details, and therefore he could remember them when preparing the statement.  He said he has those papers at his sister’s home.  He was asked by the Tribunal to bring that material the day after the hearing.  He has not done so, nor has the applicant provided any explanations.  The Tribunal is concerned about the applicant’s failure to provide material that he claimed to have in his possession and that would allegedly support his contention that the statement provided in support of the application for a protection visa is comprehensive and detailed because he had written details down.  The Tribunal may take this issue into account in a potential finding that some of the claims have been fabricated by the applicant and his sister who prepared the statement.  This could potentially reflect on the applicant’s credibility.  The Tribunal however would like to reiterate that upon consideration of the evidence as a whole, the Tribunal may not be satisfied that any such documents contain truthful and/or accurate information. 

   … 

   ·There is information in the Department’s file which indicates that the applicant had been to Australia previously, namely in 2003.  This issue was raised with the applicant in the course of the hearing.  Essentially, the applicant explained that he did not apply for a protection visa at that time because his daughters were still living in Fiji and he was concerned that they may not be allowed to come to Australia.  Delay in lodging an application for a protection visa is a matter that can be taken into consideration by the Tribunal in assessing the genuineness of the applicant’s fear of persecution.  The Tribunal remains to be concerned about the delay. 

9. After the dispatch of this letter, the applicant sent by post “the evidence papers which you requested from me on the day of the hearing”.  From the copy in the Court Book, the enclosure appears to be three handwritten pages, with brief notes referring to some of the incidents elaborated in the lengthy visa statement prepared by the applicant’s sister.  In a passage of the Tribunal’s reasons which I shall extract below, the Tribunal drew discreditable inferences from the physical appearance of these pages. 

10. The applicant’s agent lodged a response to the s.424A letter. This was forwarded after the date specified by the Tribunal, but there is no doubt that the Tribunal took the contents into consideration. It concluded with a request for a further hearing, and a suggestion of bias:

    The Tribunal has expressed doubts about the applicant and his claims because of his inability to remember details when asked for at the Tribunal hearing.  The Tribunal probably expects someone to know all the facts and figures when they attend a Tribunal hearing.  It must be remembered that when a person will go out of his way to fabricate his account of persecution, then that person will go out of his way to memorise all the details of his claims.  In the applicant’s case, he mentioned right from the outset that he had written things down and that his sister had written things down for him.  He arrived at the Tribunal hearing unrehearsed and presented himself ready for questioning. 

    For the Tribunal to doubt his integrity and accuse him of fabrication and poor credibility is the Tribunal’s prerogative.  However, the Tribunal is requested to consider the applicant’s statement during the hearing that he had not written down many minor incidents that occurred to him because his statement would have become very lengthy.  As it is his statement was very detailed and according to the applicant he made it a point to provide as much detail as possible regarding those claims. 

    The applicant wants to state that because the Tribunal doubts his integrity and credibility, the Tribunal should reschedule another hearing and subject the applicant through a very rigid cross examination to verify the claims he has made.  This should prove to the Tribunal once and for all the nature of his credibility and whether or not he is telling the truth. 

    However, seeing there is so much of issues that have been raised by the Tribunal with regards to his alleged fabrication, his credibility etc, the applicant feels that maybe the Tribunal has already decided his case. 

11. In its statement of reasons, the Tribunal thoroughly analysed the history claimed by the applicant in his visa statement, and summarised the hearing and subsequent correspondence.  This part of its reasons shows, in my opinion, a careful attempt fully to appreciate the refugee claims which were presented and the evidence in support.  I can find no evidence in this narrative that the Tribunal might have failed to bring an open mind to its consideration of that evidence. 

12. Under the heading “Findings and Reasons”, the Tribunal said that it had considered the applicant’s request for a further hearing.  It said: “the Tribunal has very carefully considered the request, but the Tribunal is satisfied that the applicant has been given proper opportunity to present his case in full”.  I can find no evidence which causes me to doubt these statements.  

13. The Tribunal then explained that it did not accept that the applicant suffered from any “clinical condition(s)” which could explain “evidentiary problems noted below”, and said “for reasons discussed below, the Tribunal is satisfied that the claims have been fabricated”.  Some matters of particular concern were identified: 

    i)The inability of the applicant to “provide significant details in relation to his claims”, which contrasted with the detail in the written statement.  The Tribunal obliquely found that the claims in the written statement had been invented, and could not be actually recalled by the applicant.  It examined the “evidence papers” submitted by the applicant, but noted that they provided only a brief record of some of the incidents originally claimed.  It also found that these papers were not contemporaneous notes, but were of recent creation.  In this respect, it found: 

    Furthermore, the Tribunal notes that the three pages appear to be from the same type of paper of the same age.  Given the approximate sixteen‑year timeframe, in the Tribunal’s opinion, it is doubtful whether the applicant did indeed write details on the papers that he had provided.  The Tribunal also notes that it appears that the papers have been soiled and crinkled up in order to create an impression of age.  In light of those observations and looking at the evidence as a whole, the Tribunal is not satisfied that the applicant had written details of alleged incidents on the papers he had provided.  For those reasons, the Tribunal is satisfied that the applicant was not truthful when he told the Tribunal in the course of the hearing and in response to the Tribunal’s concerns about the vagueness and lack of details in his oral evidence, that he wrote those details. 

    The applicant’s evidence and tender of the “evidence papers” therefore, in the Tribunal’s opinion, did not provide corroboration of the truth of the applicant’s written and oral statements, but “raise doubts about the veracity of the applicant’s claims and his credibility generally”. 

    ii)Inconsistencies in the applicant’s evidence as to the date of an incident of house invasion in 1992, and his explanations when these were put to him at the hearing and in the s.424A letter, “raise doubts about the veracity of the applicant’s claims and his credibility generally”. 

    iii)The applicant’s evidence at the hearing as to his involvement in the Fiji Labour Party was “internally‑inconsistent and confused, raising doubts about the veracity of the claim and the applicant’s credibility generally”. 

    iv)The applicant’s failure to claim refugee protection when visiting Australia in 2003, and his return to Fiji, “indicates that the applicant does not have genuine fear of persecution”. The Tribunal found the applicant’s explanations for this delay “problematic” and “unpersuasive”. 

14. The Tribunal made some general observations as to the evidence of the applicant and his sister: 

    The Tribunal has serious doubts about the applicant’s claims and given the credibility concerns, the Tribunal will not give the applicant the benefit of the doubt.  Essentially, in consideration of the above observations, comments and on the basis of the evidence as a whole, the Tribunal is not satisfied that the claims made by the applicant in the supporting statement provided to DIMA are accurate and or true.  For those reasons, the Tribunal is not satisfied that the document as prepared by the applicant’s sister reflects the truth.  The Tribunal was not impressed with her as a witness and found her to be evasive.  The Tribunal is satisfied that some of the claims and details mentioned by the applicant in the course of the hearing, were rehearsed and could not withstand testing by the Tribunal.  The applicant required a fair bit of prompting in order to provide details which in the Tribunal’s opinion raises further doubts about the claims and the applicant’s credibility. 

15. The Tribunal then made a series of findings that it was not satisfied as to each element in the history of persecution claimed by the applicant “in consideration of the evidence as a whole and in light of the Tribunal’s concerns”.  These findings concluded with the statement: “In essence, in consideration of the evidence as a whole and given the Tribunal’s concerns, the Tribunal is not satisfied that the applicant has suffered any of the harm claimed in the statement”. 

16. Notwithstanding its complete rejection of all the applicant’s claimed history, it considered whether “being an Indo Fijian, in the applicant’s circumstances, without more, means that there is a real chance that the applicant would suffer harm amounting to serious harm as contemplated by the Act”, and said that it was not satisfied as to this.  In support of this conclusion, it indicated that it accepted general country information that discrimination on the basis of race was prohibited under the Fijian Constitution, and that “the government ‘generally enforced these provisions effectively, although there were problems in some areas’”.  It said that it was “entirely speculative” whether “there is the possibility of another coup which would endanger his life and his children’s lives”. 

17. I have carefully considered the Tribunal’s reasons for affirming the delegate’s decision.  Although some aspects are obscurely expressed, and although some of the reasoning is not compelling, I consider that the Tribunal made findings of fact adverse to the applicant which were rational and open to the Tribunal on the material before it, and which cannot be characterised as capricious, perverse or reckless (cf. the authorities cited in my recent decision in SZIAY v Minister for Immigration & Anor [2006] FMCA 1680). I consider that its general and sweeping rejection of the truth of the applicant’s history of harassment at the hands of indigenous Fijians does not reveal a Tribunal decision which was not a genuine attempt to determine the issues required to be addressed under its jurisdiction in the matter.

18. The applicant has not been legally represented in the proceeding, and made no written or oral submissions in support of his application for judicial review.  However, he relied upon a lengthy amended application which has obviously been prepared by someone with a legal background.  He also relied upon two affidavits which made general criticisms of the conduct of the proceedings by the Tribunal.  I shall examine each of the grounds relied upon in the amended application, without repeating in full its argumentative particulars. 

1. Ground 1 amounts to a general allegation of jurisdictional error, which cannot separately be addressed. 

2. Ground 2 claims that “the Tribunal decision was infected with apprehended bias and this was detrimental to the applicant getting a fair hearing”.  The particulars and affidavits rely upon the following matters and contentions: 

   i)The fact that the Tribunal concluded that the applicant’s claims were “fabricated”. 

   ii)The Tribunal’s conclusion that the applicant’s “evidence papers” were essentially self‑serving and not independent corroborative evidence, and its reference to the appearance of the papers in support of this conclusion. 

   iii)The Tribunal’s several findings that particular concerns raised general doubts as to the applicant’s veracity. 

   iv)An unparticularised contention, invoking Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]‑[32], as applied by Kenny J in VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102, that: “by the Member’s conduct during the hearing, a fair‑minded observer might well infer that there was nothing the applicant could give by way of evidence or submit by way of argument that might change her mind about his claim – that he had fabricated his account”.  In this respect, the applicant’s affidavit complained generally that at the hearing: 

   12.    The Tribunal in expressing its personal views denied me natural justice because it had already formed a biased view and no matter what I said the impression I formed was that the Tribunal would never listen to me. 

   13.    In doing so the Tribunal steered the whole proceeding in a biased manner and dealt with my case in a patronising manner. 

   14.    The Tribunal disregarded information that I had stated as a substantive part of my claims without even paying due regard to the merits of my case. 

   15.    I believe I have legitimate claims on the grounds of my ethnicity and religious beliefs and political persuasion to lodge a claim for a refugee status and these grounds have not been looked at by the Tribunal.  Instead the Tribunal has proceeded on its quest to discredit me. 

   16.    An examination of the hearing transcripts will show that I answered all questions posed to me.  BUT the important thing that the transcripts will show is that the Tribunal treated me with such disdain in that it continuously asked me questions in a manner that it wanted to believe that everything I said and had submitted was fabricated.  This was wrong on the Tribunal’s part and jurisdictionally the Tribunal went beyond its powers. 

   17.    The Tribunal cast doubt on my evidence without seeking to look at the merits of my case.  In doing so the Tribunal overstepped the boundaries of its jurisdiction and went outside the parameters to discredit me and allow me an opportunity to present my claims. 

   v)An unparticularised contention, invoking NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs(2004) 214 ALR 264, that: “fact‑finding has been conducted in a manner which can be described … as in substantial respects unreasoned, and mere assertion lacking rational or reasoned foundation, at times as plainly and ex facie wrong and as selective of material going one way”, suggesting that “the posited fair‑minded observer might, or indeed would, reasonably apprehend that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly”. 

   vi)An unparticularised contention that the Tribunal did not afford the applicant a “real and meaningful hearing”, nor give the evidence “a proper, genuine and realistic consideration” – citing Federal Court and High Court cases which make reference to these requirements. 

3. I am unable to give any substance to these contentions, as raising grounds for apprehended bias upon the principle applied in Ex parte H (supra).  The fact that the Tribunal ultimately concluded that the applicant’s claims were invented, and that his general credibility was suspect, does not provide evidence that it did not bring an open mind to the proceedings before arriving at its decision.  It was its duty to arrive at findings as to credibility, and its adverse conclusions would not give rise to any apprehension of bias under relevant principles. 

4. The applicant has not pointed to any particular passages in the hearing transcript in support of the contended characterisations of the proceeding.  I have read the whole of the transcript, and do not accept that a lay observer might form any apprehensions or conclusions such as were reached in the cases cited.  In my opinion, the Tribunal gave the applicant a full and fair opportunity to present his evidence and to persuade the Tribunal as to the truth of his claims.  I do not consider that its expression of concern and doubts at some points might cause an apprehension of a closed mind, nor appear to have had an intimidating effect on the applicant which prevented his taking advantage of the opportunity to meet the difficulties in his evidence which the Tribunal drew to his attention.  

5. I do not consider that the Tribunal’s request to the applicant to produce his “evidence papers”, nor its adverse view of those papers after they were produced, might give rise to an apprehension of bias. The Tribunal explained to the applicant that it was concerned by reason of his inability to recall detailed incidents, that the detailed written history might have been invented or embellished by the applicant and his sister. It explained that it wished to test the statement by looking at its claimed source records. It also warned, orally and in the s.424A letter, that it might not be satisfied by the production of the papers, and that it might consider whether they also should be rejected. I consider that an informed lay observer would regard this procedure as fair, and that it showed only a desire by the Tribunal to investigate the truth of the applicant’s claims, rather than a Tribunal conducting a proceeding with a mind not open to be persuaded as to the truth of the claims.

6. Ground 3 of the amended application alleges “a denial of natural justice on the part of the Tribunal because of a failure to disclose to the applicant the substance of adverse information in documents created after the hearing”. The particulars refer to the Tribunal’s receipt of the “evidence papers” from the applicant, and to its adverse conclusions from their contents and appearance that they did not, in fact, contain contemporaneous records of the incidents recorded. The particulars argue that this revealed a failure to follow procedures required both by s.424A(1) and under general obligations of procedural fairness.

7. I accept the Minister’s submissions that s.424A(1) was not engaged in relation to the information taken by the Tribunal from the papers presented by the applicant. All this information, including the appearance of the papers, was in my opinion given by the applicant for the purposes of the review application, so as to fall within s.424A(3)(b).

8. In relation to procedural fairness, the applicant’s contentions face a difficulty presented by s.422B(1), which authorities suggest excludes any obligations on the Tribunal to put matters to an applicant beyond the ambit of s.424A(1) (see: SZBDF v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 148 FCR 302, Minister for Immigration & Multicultural Affairs v Lay Lat (2006) 151 FCR 214, SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62, and Kim v Minister for Immigration & Multicultural Affairs [2006] FCAFC 64).

9. These authorities now need to be reconciled with the High Court’s opinion in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 at [37] that the Tribunal may have duties under s.425 to warn an applicant as to a live issue arising in the review, if this might not have been apparent (c.f. my discussion in SZHFH v Minister for Immigration & Anor [2007] FMCA 124).

10. In the present case, I do not consider that there was any failure to warn the applicant that the Tribunal might not accept the “evidence papers” and might, indeed, form an adverse opinion from their appearance and contents. I consider that this was sufficiently apparent from the Tribunal’s warnings during the hearing and in its s.424A letter. The applicant’s agent, when responding to that letter and suggesting bias, appears to have been aware that the Tribunal might make findings of “fabrication and poor credibility” in relation to the evidence presented by the applicant. 

11. Ground 4 contends that “the Tribunal failed to consider the applicant’s claims of religious persecution”, and cites NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1. It argues:

    It was the belief of the applicant that the persecution he suffered was partially a result of his religion.  This was not treated as an independent claim by the Tribunal and this failure does constitute a jurisdictional error. 

12. However, in my opinion, the Tribunal did address this element in the claims of the applicant.  It expressly recognised that “the applicant feels fearful of returning to Fiji because of his race, religion, and political opinion”.  It rejected these fears as well‑founded by considering the truth of the whole history presented by the applicant, including the incidents which were claimed to show attacks on the applicant and his family due to their Hindu religion.  Its findings generally and particularly rejecting the credibility of the applicant’s history therefore answered his specific religious claims. 

13. In the context of how the applicant’s specific claims had been put and dealt with by the Tribunal, I consider that its further general consideration of the situation of ethnic Indian Fijians and its finding “looking at the evidence as a whole, the Tribunal is not satisfied that the applicant would suffer harm as contemplated by the Convention and the Act, if he were to return [to Fiji]”, sufficiently addressed the position of the applicant as a Hindu. 

14. Ground 5 contends that “the Tribunal failed to correctly apply the law in relation to state protection”.  It complains that the Tribunal made only “cursory mention” that it had considered State protection, and did not consider “whether the applicant has provided evidence that the state lacks the ‘standard of protection required by international standards’”, citing Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1.

15. However, I do not consider that this ground is established.  The Tribunal dealt with the applicant’s specific complaints that he had in the past been denied State protection, by rejecting the credibility of the applicant’s claimed history.  It then addressed the applicant’s situation if he returned to Fiji without that history, and made general findings which suggest that it did consider the “effectiveness” of State protection against discrimination and racially based criminal activity.  I am not satisfied that it failed to consider this issue. 

16. Ground 6 contends a further failure “to observe the requirement of s 424A”, by failing to disclose the general country information relied upon by the Tribunal. However, it is clear that no such obligation arose, due to the provisions of s.424A(3)(a) as interpreted in Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572 and other cases.

17. The ground also contains a particular complaining that “the Tribunal did not address the question of whether there were other parts of Fiji to which the applicant could reasonably relocate which were willing and able to provide protection”.  However, the Tribunal was not required to consider the applicant’s risk of persecution in particular parts of Fiji, since it rejected his claimed history of persecution and found generally that it was not satisfied that there was a real chance of Convention‑related harm if he returned to live anywhere in Fiji. 

18. Ground 7 makes obscure contentions that “the Tribunal’s factual summary contained serious factual error”.  Its concern appears to be the Tribunal’s adverse reasoning based upon the applicant’s failure to apply for protection in 2003 and his return to Fiji.  However, I consider that this reasoning was open to the Tribunal, and that the criticisms of its merits do not establish any jurisdictional error. 

19. One of the particulars suggests a failure under s.424A(1) in relation to this finding, but I do not accept this. The travel and visa application information was the subject of evidence given by the applicant at the hearing, and was also put to the applicant in the s.424A(1) letter.

20. Ground 8 makes an unparticularised contention that “the decision of the Tribunal was so unreasonable that no reasonable Tribunal could have made the decisions in the manner in which the Tribunal in this matter did”. 

21. My opinions, explained above, do not accept this characterisation of the Tribunal’s decision. 

22. Ground 9 contends that “the Tribunal failed to properly consider discrimination amounting to persecution in Fiji having applied the wrong test”.  This is obscure, but appears to challenge only the merits of a finding made by the Tribunal based on country information.  I am not satisfied that it was not open to the Tribunal. 

23. For the above reasons, I do not accept any of the arguments presented in the amended application.  I am unable to identify any jurisdictional error affecting the Tribunal’s decision, and the application should be dismissed. 

I certify that the preceding forty‑one (41) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  30 March 2007