SZJLM v Minister for Immigration - [2007] FMCA 287

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJLM v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 287

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant a child claiming persecution in Fiji on the basis of his mother’s gender, race and religion – failure by the Tribunal to consider the cumulative impact of those elements of the claim of persecution – jurisdictional error found.

Evidence Act 1995 (Cth), s.144
Migration Act 1958 (Cth), ss.36, 91R, 414, 430A, 430B, 476

Applicant C v Minister for Immigration [2001] FCA 229
Applicant S v Minister for Immigration (2004) 206 ALR 242
Chen v Minister for Immigration (2000) 106 FCR 157
Htun v Minister for Immigration [2001] FCA 1802; (2001) 194 ALR 244
Jegatheeswaran v Minister for Immigration (2001) 194 ALR 263
Kaur v Minister for Immigration [2000] FCA 1401
Khan v Minister for Immigration [2000] FCA 1478
Minister for Immigration v Applicant C (2001) 116 FCR 154
Minister for Immigration v Khawar (2002) 187 ALR 574; (2002) 210 CLR 1
Minister for Immigration v Peko-Wallsend (1986) 162 CLR 24
Minister for Immigration v Respondents S152/2003 (2004) 205 ALR 487
Minister for Immigration v Sarrazola (2001) 107 FCR 184
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration v Yusuf (2001) 206 CLR 323
MZWPD & Ors v Minister for Immigration [2006] FCA 1095
NABE v Minister for Immigration (No 2) (2004) 144 FCR 1
SCAT v Minister for Immigration [2003] FCA 80; (2003) 76 ALD 625
Sellamuthu v Minister for Immigration (1999) 90 FCR 287
SZIWJ v Minister for Immigration [2006] FCA 1706

Tharmalingam v Minister for Immigration (unreported, Federal Court of Australia, 19 May 1998)
VTAO v Minister for Immigration (2004) 81 ALD 332
W352 v Minister for Immigration [2002] FCA 398
W396/01 v Minister for Immigration (2002) 68 ALD 69
WAEE v Minister for Immigration (2003) 75 ALD 630

Applicant:

SZJLM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2808 of 2006

Judgment of:

Driver FM

Hearing date:

8 March 2007

Date of Last Submission:

13 March 2007

Delivered at:

Sydney

Delivered on:

2 April 2007

REPRESENTATION

Counsel for the Applicant:

Ms T T Baw, pro bono publico

Counsel for the Respondents:

Mr G T Johnson

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The Court directs that the title of the first respondent be amended to the Minister for Immigration & Citizenship.
A writ of certiorari shall issue quashing the decision of the Refugee Review Tribunal signed on 4 September 2006.
A writ of mandamus shall issue requiring the Refugee Review Tribunal to redetermine the review application before it according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2808 of 2006

SZJLM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). There is no direct evidence of whether the decision was handed down but I infer from a letter dated 4 September 2006 sent to the applicant’s agent that, if it was handed down, the decision was handed down on that day. I note that the decision was signed on the same day. No issue has been raised concerning the compliance by the Tribunal with its obligations under ss.430A and 430B of the Migration Act 1958 (Cth) (“the Migration Act”), possibly because it appears that the applicant was at the time held in immigration detention.
Background facts concerning the protection visa claims of the applicant and the Tribunal’s decision on them are adequately summarised in the Minister’s outline of legal submissions filed on 1 March 2007 and the applicant’s outline of legal submissions filed on 23 February 2007. I adopt, with necessary amendments, paragraph 2 of the latter and paragraphs 3 to 10 of the former for the purposes of this judgment.
The applicant is a Fijian citizen. He was born in 1992. He is currently 14 years old. He is the son of an Indian-Fijian Muslim woman. The applicant and his mother arrived in Australia on 12 January 2001 and the mother applied for a protection visa on 30 January 2001. The mother’s application was based on incomplete information and she was unable to be heard at the review of the delegate’s decision, due to errors by her migration agent at the time. The mother’s application was refused and that decision was affirmed on appeal.
The applicant applied for a protection visa on 23 March 2006 (court book, pages 1-39). That application was refused by a delegate on

21 April 2006 (court book, pages 40-54). The applicant then applied to the Tribunal on 2 May 2006 to review that decision (court book, pages 55-58). On 25 May 2006, a hearing invitation was sent to the applicant (court book, pages 68-69). Various material was placed before the Tribunal in support of his case, including a letter from him at court book, pages 74-75. The Tribunal conducted a hearing on 1 September 2006, which the applicant attended, represented by a migration agent (court book, pages 162.2). The Tribunal noted that, at the hearing, the applicant’s mother spoke for her son (court book, pages163.4).
The Tribunal makes mention, at court book, page 163, of some of what transpired at the hearing, noting, inter alia, that it discussed with the applicant’s mother “independent evidence, as set out below, indicating that the Fijian government has taken steps to provide better protection to Indo-Fijians (both Hindu and Muslim) as well as women” (court book, page 163.5). It also raised independent evidence indicating that there appear to have been “considerable improvements in Fiji in terms of providing more public security…” (court book, page 163.8).
Ultimately the Tribunal decided to refuse the application. It accepted that the applicant is the son of an Indo-Fijian Muslim woman (court book, page 190.5) and noted the claim that if she suffered serious harm, no-one would be able to care for the applicant and/or that he will face mental harm/anguish for which it would be difficult to access treatment in Fiji (court book, page 170.6). The Tribunal also noted the claim that the applicant may be persecuted because of the tension between indigenous Fijians and Indo-Fijians, upon the basis of him being an Indo-Fijian (court book, page 170.6). As to the harm said to be faced by the applicant’s mother, the Tribunal further accepted that she was abducted, raped and harassed by a particular person before she fled Fiji and had then been unable to access adequate police protection (court book, page 170.7). The Tribunal also accepted that the culprit had made threats against the applicant were his mother to pursue the matter with police (court book, page 170.8).
The Tribunal further accepted claims that the mother’s sexual assault had led to tension between her and her brother, who felt that the incident brought shame upon their family, and the Tribunal referred, in this respect, to her attendance upon a psychologist on multiple occasions (court book, page 170.9).
The basis upon which the Tribunal refused the application was that it was satisfied that there had been changes within Fiji, as a result of which effective protection would be available in Fiji. The critical finding, for present purposes, is that in the fourth paragraph, commencing, “in the light of this evidence…” (at court book, page 171). The Tribunal there found that:
…Should the applicant or his mother face harm at the hands of the individual who assaulted the applicant’s mother, or at the hands of the applicant’s uncle, the applicant and his mother would be able to access protection from the Fiji authorities and… such protection would not be denied them by the government on a selective and discriminatory basis for a Convention reason….
Also, at court book, pages 170-171, the Tribunal referred to the end of prior overthrows of government and to changes which satisfied the Tribunal “that there appears to be no risk of institutionalized mistreatment by authorities of Indo-Fijians, whether Hindu or Muslim” (court book, page 171.2). The Tribunal additionally referred, at court book, page 171.4, to “generally increased awareness of the rights of women” and “significant improvements in police procedures, particularly as they affect women” (court book, page 171.5).
The Tribunal was also satisfied that the prospect of a further coup, in which Indo-Fijians would be placed at risk, was “speculative” and, in the light of the independent evidence cited by the Tribunal as showing increased recent ethnic and political stability, not “well-founded” (court book, page 171.7). Finally, the Tribunal found “adequate counselling services” to be available in Fiji to the applicant and his mother (court book, page 171.8).

The judicial review application

The present proceedings began with a show cause application filed in this Court on 29 September 2006. Clearly, that application was filed within time. The applicant’s mother was appointed the applicant’s litigation guardian on 18 October 2006. The applicant now relies upon an amended application filed on 14 February 2007. I gave leave for the amendments at the trial of this matter on 8 March 2007. Both parties had prepared for the trial in anticipation that leave would be granted. The grounds of the amended application are:
1.The Tribunal made an illogical conclusion and failed to take proper consideration, in relation to the applicant and his mother’s ability to adequately access protection from Fiji authorities.
2.The Tribunal made an error of law, or alternatively failed to properly consider that if the applicant’s mother was persecuted, there would be no one to look after the applicant child.
3.The Tribunal reached a mistaken conclusion or in the alternative made an illogical conclusion in relation to the availability of adequate counselling services for the applicant in Fiji.
4.Leave for this Honourable Court to take into account the latest Fijian coup which occurred in December 2006, pursuant to s.144 of the Evidence Act 1995 (Cth) or by judicial notice.

The evidence

I received as evidence the book of relevant documents (the court book) filed on 19 December 2006. I also received the affidavit of James Starey filed on 23 February 2007, to which is annexed a transcript of the hearing conducted by the Tribunal on 1 September 2006. The Minister objected to the receipt of the transcript if it was presented as evidence of the reasons for the Tribunal decision. While accepting that objection, I received the transcript as evidence of what occurred at the Tribunal hearing, in particular as evidence of the information provided by the applicant’s mother and migration agent in support of the applicant’s claims.

Submissions

Both parties took the opportunity to file written submissions and also to make oral submissions at the trial. In the applicant’s written submissions, his counsel (Ms Baw) submits that the Tribunal erred in failing to consider the particular social group of which the applicant’s mother was a member, namely Indian-Fijian Muslim women. She submits that the Tribunal’s failure to address adequately the issue of the particular social group led the Tribunal to fail to consider the cumulative impact of the various elements of that social group, in assessing the risk of harm to which the applicant’s mother, and through her the applicant, faced. This ground is addressed by reference to the transcript. The applicant relies, in particular, on the decision of the Full Federal Court in Htun v Minister for Immigration (2001) 194 ALR 244.
Secondly, the applicant contends that the Tribunal failed to address an integer of his, and his mother’s, claim that the mother was unable to access effective State protection following an assault by her brother. Ms Baw contends that the mother had two sources of fear, first the assault by a stranger and secondly, the assault by her brother. The integer is identified by reference to the transcript. The applicant relies on the decision of the High Court in Minister for Immigration v Yusuf (2001) 206 CLR 323.
The Minister addresses these arguments in the following terms:
The first argument
The applicant’s first contention is that the Tribunal failed to deal with the applicant’s “claim based on the mother’s social group as a Fijian Indian Muslim woman”.
Objection has already been taken to the way in which the applicant seeks to use the transcript in aid of this submission.
Also, whereas the applicant refers to Htun v MIMA (2001) 194 ALR 244, it is to be remembered that, in that case, Allsop J, at [42], distinguished between failure to consider a claim, which is jurisdictional error, and “failure merely to attend to evidence, even probative evidence, and by such route (to) commit a factual error” – which is not a jurisdictional error. See also, for example, Singh v MIMIA [2006] FCA 1113 per Allsop J, especially at [27]-[34].
The thrust of the applicant’s complaint is that the Tribunal (so it is alleged) did not consider cumulatively the mother’s risk as a Fijian-Indian, a Muslim and a woman. The answer to this lies in the fourth paragraph on RD171, from which I have quoted above, read in the context of the reasons as a whole. It is plain that the Tribunal was mindful that the applicant’s mother was an Indo-Fijian, a Muslim and a woman. It is also clear that the Tribunal was mindful that a Convention reason may include a “particular social group”. Thus, the reference to Khawar at RD171.7. See also the Tribunal’s reference to a “membership of a particular social group” in the Tribunal’s template statement of relevant law at RD161.5.
The applicant carries the onus of proof and it is highly unlikely that the Tribunal did not have in mind the various “particular social groups” to which the applicant’s mother could belong, including that of Indo-Fijian, Muslim women. Yet, the Tribunal’s finding at RD171.6 was that “… the applicant and his mother would be able to access protection from the Fijian authorities and that protection would not be denied them by the government on a selective and discriminatory basis for a Convention reason…”. (Italics added). The Tribunal then, immediately after that quote, speaks of them both (i.e. “their”) “being Muslim Indo-Fijians” and adds “or in the case of the applicant’s mother, a woman”. The word “or” merely distinguishes the mother from the son (they obviously being of different gender). It does not evidence that the Tribunal failed to consider that the mother was both “Indo-Fijian” and a “woman”. Nor is the Tribunal’s acknowledgment of her Muslim religion (e.g. at RD171.6) to be forgotten. The Court cannot be satisfied that the Tribunal’s reference to “a Convention reason” at RD171.6 did not include membership (in the mother’s case) of the “particular social group” of Indo-Fijian Muslim women.
The second argument
The applicant’s further contention (ground 1b), addressed at paragraphs 13-19 of the applicant’s submissions, really does no more than seek merits review. There was no need for the Tribunal to make specific findings as to the precise harm that the applicant’s mother had previously suffered from her brother, or as to any further detail of what had happened in the past seeking protect from such harm. The Tribunal addressed the prospect “should the applicant or his mother face harm at the hands of… the applicant’s uncle” (RD171.6) and found, in that same paragraph (to which I have already referred) that, in that event, “the applicant and his mother would be able to access protection from the Fijian authorities and that such protection would not be denied them by the government on a selective and discriminatory basis for a Convention reason”.
That was sufficient to dispose of the claim. The respondent again refers to the distinction between a claim and evidence in support of a claim to which I have already referred. The relevant claim, for the purposes of this argument, was that they faced persecution from the mother’s brother upon return to Fiji.
In the course of oral argument Ms Baw took me to several additional Federal Court decisions of limited relevance. Generally, those decisions bear on the Tribunal’s obligation to give reasons (which is not in issue) rather than its obligation to address all elements or integers of an applicant’s claims. That said, however, there is no doubt that the Tribunal is subject to the latter obligation. Essentially, it is the applicant’s contention that it is clear from the court book and from the transcript that the applicant’s mother, and through her the applicant, was asserting a fear of persecution based upon her sex, her religion and her ethnicity, which were the components of the particular social group of which she asserted membership. The Tribunal is said to have failed to grapple with the cumulative impact of those elements and to have dealt only with the mother’s sex. The Tribunal is also said to have failed to deal with the applicant’s mother’s claim to have been assaulted by her brother and to have been unable to access State protection in consequence of that assault.
In his oral submissions, on behalf of the Minister, Mr Johnson did not dispute that the applicant, through his mother, claimed persecution based not only on the mother’s sex but also upon her religion and ethnicity. In his submission, however, all three elements were addressed and the broad terms in which the presiding member expressed himself are sufficient to give rise to the inference that the cumulative impact of the three components of the claim of persecution was considered. Mr Johnson further submits that there is direct evidence that the claim of assault by the applicant’s brother and the inability to access State protection were not only considered, they were accepted.
During the course of argument I put to counsel that, it appeared to me, that the crux of this case was whether the Tribunal failed to address the cumulative impact of the three elements of the claim of persecution in circumstances where the decision makes no express reference to a cumulative impact and where the Court is left to draw inferences from the text of the decision.
Counsel also made submissions on costs. The applicant resists any order for costs on the basis that he is a child. The Minister seeks costs on the basis that the applicant’s mother was appointed as his litigation guardian.
I gave leave for additional written submissions to be filed after the hearing, and both parties took advantage of that leave on 13 March 2007. Relevantly, the applicant submits as follows:
At the hearing of the above proceedings, the Court invited the parties to provide any authorities on whether an inference can be made that a Tribunal has addressed all the elements of a claim cumulatively. In this case, the elements are the cumulative risk of harm by the Applicant’s mother being an Indian-Fijian and a Muslim and a woman. This brief supplementary submission is provided to assist the Court’s request.
Authority
It is submitted that VTAO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 927 directly answers the question in the negative. That is, an inference that each element of the claim has been assessed not only individually, but also cumulatively, should not be read into the Tribunals reasons when a fair reading of the reasons as a whole does not permit it. In that case, Merkel J of the Federal Court stated at [61] and [62]:
While the reasons of the RRT are not to be construed minutely and finely with an eye keenly attuned to the perception of error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272) that approach does not authorise a court to read into the reasoning of the RRT the application of a criterion which, on a fair reading of the reasons as a whole, does not appear to have been applied by it….
To apply s 91R(1) the RRT would have to consider whether the claims of the applicant child, cumulatively, constituted persecution that involved "serious harm". That follows from the duty of the RRT to consider the "totality of the case put forward" (see Khan v Minister for Immigration & Multicultural Affairs [2000] FCA 1478 at [31]) and in doing so consider each of the integers of the claim: see Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at 247-248 [8]-[12] and 259 [41]-[42] and SCAT v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 625 at 636-637 [29].
(Counsel’s emphasis retained.)

The Minister’s supplementary submissions are as follows:
This submission is provided in response to the Court’s invitation to be referred to authority upon the question of whether one can “infer” that cumulative risk has been considered.
The question to be addressed
First it is noted that the question that the Court will ultimately need to address is whether it should infer that the risk of persecution faced by the applicant’s mother as a Muslim Indo‑Fijian woman was not considered. The onus lies upon the applicant to establish jurisdictional error. Also, as previously submitted, the principles stated in MIEA v Wu Shan Liang (1996) 185 CLR 259 at 271-272 require the reasons of an administrative Tribunal to be read beneficially in favour of validity. If the reasons are ambiguous and the Court cannot decide on the balance of probabilities whether a particular factor was or was not considered, that was required to be considered, no jurisdictional error will be made out.
Inferring reasons
It is clear that reasons may, as a matter of principle, be inferred and need not be expressed. See, for example, A v MIMA (1999) 53 ALD 545 at [54] per French, Merkel and Finkelstein JJ. Whether a particular matter can be inferred to have been taken into account in any particular case will depend upon the facts and, in particular, upon a fair reading of the totality of what the Tribunal has said in its reasons.
I will not repeat all that has been previously submitted as to how consideration of the totality of the Tribunal’s reasons tends against the finding that the Tribunal did not consider the risk faced by the applicant’s mother as an Indo-Fijian, Muslim woman. That included reference to RD163 and RD170-171. See also RD172.
Additional cases
The following cases provide passages which assist with respect to the question raised by the Court:
·    Ji Kil Soon v MIEA and Anor (G110 of 1994, FED No 642/94 Immigration); (1994) 37 ALD 609 at [30] per Tamberlin J, drawing upon wide findings – that in the light of the evidence before the Tribunal that the applicant’s fear is not well-founded – to find that cumulative risk was considered (despite the lack of an express finding);
·    SCAT v MIMIA [2002] FCA 962 at [36] per von Doussa J, referring to the Tribunal’s ultimate conclusion that it had “considered the evidence as a whole”. Note that the same statement is made by the Tribunal at the top of RD172 in the present case;
·    NAOI v MIMIA [2004] FCA 383 at [21] per Tamberlin J, finding no substance in the submission that an applicant’s claim was not considered on a cumulative basis upon two separate bases – one of which was that there could not be any higher alternative claim based on the cumulative series of negative findings and the second of which was the Tribunal’s “regard to the totality of the evidence before it”;
·    VJAD v MIMIA [2004] FCA 468 at [32] per Kenny J – particularly in so far as the Court there posed the question in terms of whether the absence of an express statement should lead it “to infer that the Tribunal failed to have regard to a relevant consideration such as to constitute jurisdictional error”;
·    W352 v MIMA [2002] FCA 398 at [26] and [44] per French J, ultimately finding that whether an inference may be drawn that the Tribunal disregarded something will depend upon the circumstances.

Reasoning

The Tribunal must consider every integer of an applicant’s claim. From the authorities it appears the ‘cumulative claim’ is another ‘integer’ which the Tribunal must consider. So where a Tribunal fails to mention whether or not it has considered the applicant’s claim ‘cumulatively’, if it forms a separate ground on which the applicant does or could claim fear of persecution then it is another integer of the applicant’s claims which must be considered.
The use of the word ‘cumulative’ is most authoritatively used by Merkel J in Htun v Minister for Immigration [2001] FCA 1802. The seed of looking at a cumulative claim is arguably in earlier cases, for example in the decision of Kaur v Minister for Immigration [2000] FCA 1401, which was decided before Htun (but is not cited in that judgment). In Kaur Moore J was called upon to decide whether the Tribunal had considered the cumulative effect of the applicant’s claims. His Honour states at [11]-[12]:
Counsel for the applicant submitted that the Tribunal's reasoning, set out above in par 8, revealed an erroneous approach to the facts as found by the Tribunal. It was said that the Tribunal considered each of these facts in isolation but failed to consider their cumulative weight. This error was said to be apparent from the structure of the decision which dealt systematically with each of the factual conclusions, in each instance finding that the particular conclusion would not give rise to a well-founded fear of persecution upon return to India. This was particularly evident in relation to the Tribunal's consideration of the circumstances of the husband. Similarly, it was said that the Tribunal erroneously considered the circumstances of the applicant separately from those of her husband. By adopting this approach, it was said that the Tribunal failed to recognise a pattern of persecutory treatment. Further, it was said that the Tribunal did not consider whether in the entirety of the circumstances, including all of the aspects of Mr Singh's political involvement, the applicant had a well-founded fear of persecution, and that this amounted to a misapplication of the real chance test.
Had the Tribunal, in fact, adopted such an approach it would clearly have amounted to an error of law in breach of s 476(1)(e) of the Act, and perhaps also to a constructive failure by the Tribunal to exercise its jurisdiction (see Sellamuthu v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 287), resulting in a breach of s 476(1)(c). As noted by Kirby J in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 ("Wu") at 294 - 295 it is necessary for the Tribunal to "consider all the relevant possibilities by looking back at the entirety of the material placed before [it]", and the decision-maker must "[stand] back from the particular grounds and consider ... the case in its entirety". Had the approach the Tribunal adopted in the section concerning the circumstances of the husband been adopted in considering (in a notional sense) an application for a protection visa for the husband then it may have manifested an error of the precisely the same type as discussed by Lindgren J in Tharmalingam v Minister for Immigration & Multicultural Affairs (unreported, Federal Court of Australia, 19 May 1998).
Similarly in W352 v Minister for Immigration [2002] FCA 398 at [21] French J deals with a ‘cumulative effect’ claim and relies on the decision of Khan v Minister for Immigration [2000] FCA 1478:
It may be accepted that in determining whether an applicant for a protection visa has a well-founded fear of persecution for a Convention reason, the Tribunal must have regard to the whole of the case advanced by the applicant - Khan v Minister for Immigration & Multicultural Affairs [2000] FCA 1478. It may be that in a particular case there is a number of factors which individually might not support the existence of a well-founded fear of persecution but which taken together would support such a fear. In Khan's case these were described, in the submissions put to Katz J, as "risk factors". They were causative factors which might collectively engender the relevant risk. That is not the same as a cumulative concept of persecution itself which appeared to underpin the applicant's submissions. Authorities cited on behalf of the applicant did not cast much light on the submissions in this respect. The observations of Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 294-295 related to the requirement that the delegate "...consider all the relevant possibilities by looking back at the entirety of the material placed before her and considering it against a test of what the 'real', as distinct from fanciful, 'chances' would bring if the applicant were returned to China".
In W352 the applicant contended the Tribunal’s approach to the question of whether he had a well-founded fear of persecution on account of all or any of his ethnicity, political opinion and religion, and in particular whether the Tribunal erred in not having regard to the cumulative effect of the incidents of alleged persecution outlined in his application. The Tribunal dealt with each of the incidents and found that none amounted to persecution. The court considered that the complaint about cumulative effect was really a complaint about the Tribunal’s approach to fact finding, and therefore it was not surprising the Tribunal had not considered the cumulative effect of the claims. The individual claims were either rejected or found not to amount to persecution.
The decision of Htun is most often cited in claims where the Tribunal is claimed to have failed to consider the ‘cumulative effect’ of the applicant’s claims of persecution. It has been cited in numerous cases for the proposition enunciated by Allsop J that the Tribunal must consider every integer of the applicant’s claims; fewer judgments deal specifically with the question of a ‘cumulative’ effect and the decision in Htun.
Merkel J in Htun v Minister for Immigration (2001) FCA 1802 stated at [7]:
While it may be convenient for the Tribunal to deal separately with each element of the claim, that does not relieve it of the task of addressing, cumulatively, all of the essential elements of the claim raised by the material or evidence. In that regard, the Tribunal, in conducting its review of the decision of the delegate under s414 of the Migration Act 1958 (Cth), is under a duty to address or deal with the case (ie the claim) actually raised by the material or evidence: see Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180 and Minister for Immigration and Multicultural Affairs v Sarrazola (2001) 107 FCR 184 at 196, Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293-294.
In Htun the court found that the Tribunal had not dealt with the ethnicity-based claim put forward by the applicant, a Burmese national. The Tribuanl did not address the claim of imputed political opinion based on a range of anti-government activites in Australia, in addition to association in public with senior members of a group opposing the government. Given the Tribunal failed to examine matters which it should have, it fell foul of the principles of procedural fairness (under the general law) and thereby committed jurisdictional error.
As is noted in the applicant’s supplementary written submissions, in VTAO v Minister for Immigration (2004) 81 ALD 332 Merkel J states at [62]:
There is a further matter that suggests the RRT applied s 91R(2), rather than s 91R(1). To apply s 91R(1) the RRT would have to consider whether the claims of the applicant child, cumulatively, constituted persecution that involved “serious harm”. That follows from the duty of the RRT to consider the “totality of the case put forward” (see Khan v Minister for Immigration & Multicultural Affairs [2000] FCA 1478 at [31]) and in doing so consider each of the integers of the claim: see Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at 247–248 [8]-[12] and 259 [41]-[42] and SCAT v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 625 at 636–637 [29].
In VTAO the applicants were a Chinese couple and their child. The claim for persecution included forced sterilisation of the applicant mother, liability for a financial penalty the applicants could not afford to pay and limitations on employment opportunities. The applicant child claimed persecution on the basis of discrimination and disadvantage arising from his status as a ‘black child’. The Tribunal considered the financial impact:
However, it failed to consider the cumulative effect of all of the forms of harm which on its findings of fact the applicant child might suffer, and then address the question of whether the totality of that treatment met the legislative criterion of persecution involving serious harm.[1]
[1] VTAO at [65]
In relation to inferring an approach from the reasoning of the Tribunal, Merkel J states at [61]:
…While the reasons of the RRT are not to be construed minutely and finely with an eye keenly attuned to the perception of error ( Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272) that approach does not authorise a court to read into the reasoning of the RRT the application of a criterion which, on a fair reading of the reasons as a whole, does not appear to have been applied by it.
VTAO has been cited with approval; see, for example, MZWPD & Ors v Minister for Immigration [2006] FCA 1095, where Weinberg J cited the decision in Htun as requiring every integer of the applicant’s claim to be considered and then referred to VTAO as authority for the proposition that it is possible that individual instances of discrimination may not be considered persecution when considered as isolated incidents, but may amount to persecution when considered cumulatively (at [84]). At [69] his Honour states:
An act that might seem capable of innocent explanation when viewed discretely can take on a different and more sinister connotation when viewed against a broader background.
In SCAT v Minister for Immigration [2003] FCA 80 Madgwick and Conti JJ (Gyles J dissenting) considered that the Tribunal’s silence in relation to a particular claim raised by the applicant, namely the psychological harm the applicant would likely suffer could be serious enough to convert religious discrimination into persecution, amounted to jurisdictional error. Their Honours cite Htun at [29]:
… it cannot be other than an important matter, going to the core of the tribunal’s jurisdiction, to overlook crucial material amounting, as Allsop J put it in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at 259, to an integer of the claim. In that case, Allsop J, with whom Spender J agreed, said that “To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on”. His Honour then made clear that this includes a failure to examine all the integers of any claim, saying “The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Immigration and Multicultural Affairs v Peko-Wallsend (1986) 162 CLR 24 … and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323” (emphasis added). Merkel J agreed with Allsop J in the result and was not at odds with Allsop J’s approach. Another Full Court (Black CJ, Wilcox and Moore JJ) agreed with this approach in W396/01 v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 69 at 78–81, [31]–[38].
In SZIWJ v Minister for Immigration [2006] FCA 1706 Jacobson J dealt with the applicant’s submission that the Tribunal had failed to consider his claims cumulatively. His Honour referred at [26] to the requirement of the Tribunal to consider each integer of the applicant’s claim as enunciated in Htun:
The principle is that there will be jurisdictional error if the Tribunal fails to make a finding on "a substantial, clearly articulated argument relying on established facts". This may amount to a constructive failure to exercise jurisdiction. This principle was referred to by a Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55]. The court also referred at [57] to the nature of the review function as described by Allsop J in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42]; this is that the tribunal is to consider all of the component integers of the appellant’s claim.
Jacobson J then considered whether the failure to consider every integer of the claim could be inferred from the Tribunal’s reasoning at [28]-[33]:
The starting point for consideration of the appellant’s arguments seem to me to be conveniently addressed in a decision of a Full Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46] to [47]. The Full Court there observed that:
It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons.
Their Honours pointed out that there is a distinction between the tribunal failing to advert to evidence which, if accepted, might lead to a different finding, and a failure by a tribunal to address a contention which, if accepted, might establish that the applicant has a well-founded fear of persecution for a Convention reason. Their Honours observed at [47] that the "inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons". However, that is an inference which will not too readily be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.
It is therefore important to note, as I have already pointed out, that the Tribunal expressly recorded the appellant’s adviser’s post hearing submissions which stated that the factors relied upon by the appellant may not of themselves amount to a claim for asylum but that cumulatively they created a profile of an imputed association with Falun Gong. It seems to me to follow from this and also from the lengthy statement of the appellant’s claims in the Tribunal that the reasons given by the Tribunal must be read in light of those two factors; that is to say the issue which the appellant now seeks to agitate was expressly referred to by the Tribunal before it gave its findings and reasons, and the findings are therefore to be informed by that fact.
The appellant relied upon the decision of Moore J in Kaur v Minister for Immigration and Multicultural Affairs [2001] FCA 1401. That case was referred to with apparent approval by Finkelstein J in Jegatheeswaran v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 263 at [48]. Kaur was a case in which it was argued that the Tribunal considered each of the facts put forward by the applicant in isolation but failed to consider their cumulative weight. His Honour accepted that this may amount to constructive failure to exercise jurisdiction. His Honour cited a number of authorities in support of that proposition.
I should mention that in the present case the Minister’s counsel concedes that if there was a failure to consider the facts cumulatively then there would be demonstrated jurisdictional error.
However, it seems to me that in the present case upon a fair reading of the Tribunal’s reasons it did not compartmentalise the appellant’s claims in the manner submitted by the appellant’s counsel. Rather, in my view, the Tribunal did consider the claims cumulatively and did consider all of the integers of the appellant’s claims. In particular, I would point to three factors to support that view; firstly, the Tribunal identified the issue as submitted by the appellant’s legal adviser, secondly, there seems to be a comprehensive treatment of the claims which were identified in some detail, thirdly, the Tribunal appears to me to have dealt with all of the factual bases of the claim, that is to say the critical bases upon which the claim is put.
In this case the Tribunal decision is not a model of clarity. I note, in that regard, that the decision was signed only three days after the hearing conducted by the Tribunal, and those three days included a weekend. Perhaps as a result of the speed with which the decision was prepared, the presiding member did not specifically address in his reasons whether the relevant nexus with the Refugees Convention was only a particular social group (and in which case what the elements of that group were) or whether it was a claim based on religion and/or ethnicity combined with a particular social group claim based on gender. It would have been better if that fundamental issue had been addressed more clearly but I accept that the reasons for tribunal decisions should not be minutely examined with an eye too finely attuned to identify error[2]. There is no doubt that the presiding member understood what the applicant’s factual claims were. They are identified accurately at page 163 of the court book where the presiding member says:
At the hearing, the applicant mother spoke for her son. She stated that she continues to fear harm from the person who had kidnapped, assaulted and harassed her and who had also threatened her son (the applicant) with harm were she to pursue her complaints against him with the police. She stated she also feared harm from her brother who felt that the fact she had been raped … had brought shame to the family.
She stated that the police had in fact failed to offer her effective protection and she claimed that she feared such effective [protection] would continue to be denied her for reason of her gender, her ethnicity (Indo-Fijian) and/or religion (Muslim). The Tribunal discussed with her the independent evidence, as set out below, indicating that the Fijian government had taken steps to provide better police protection to Indo-Fijians (both Hindu and Muslim) as well as women. The applicant and her representative questioned whether the improvements were in fact substantive and whether any such improvements would be adequate to ensure the safety of the applicant given her particular circumstances. She said that the police had, when the events had occurred in 2000, declined to intervene stating that “it was a family matter”.
[2] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

It is tolerably clear from what the presiding member says on page 170 of the court book, under the heading “Findings and Reasons” that he not only considered the applicant’s factual claims, but accepted them. The presiding member said:
The following claims have been advanced with regard to the applicant, the son of an Indo-Fijian Muslim woman. The applicant’s mother will be persecuted for reason of sex and therefore there will be no one to care for the applicant child; and/or the applicant will face mental harm/anguish and it is difficult to access treatment for mental illness in Fiji. It is also claimed that because of tension between indigenous Fijians and Indo-Fijians, the applicant may be persecuted by indigenous Fijians on the basis of being an Indo-Fijian.
The Tribunal has carefully considered all the evidence before it. The Tribunal, on the basis of the claims of the applicant’s mother, and a submitted media report, accepts that the applicant[’s] mother was abducted, raped and harassed by a named person before she fled Fiji, and that she was unable to access adequate police protection. The Tribunal accepts that the person who has assaulted the applicant’s mother also made threats against the applicant were his mother to pursue the matter with police. The Tribunal further accepts that the mother’s sexual assault led to a degree of tension between her and her brother who felt the incident brought shame upon her family. The Tribunal accepts that this has resulted in the applicant’s mother requiring on-going psychological counselling. The Tribunal also accepts that the psychologist has also seen the applicant on three occasions.
The Tribunal must be taken to have accepted that the applicant, through his mother, had suffered persecution in the past. The facts established fear, serious harm and a Convention nexus. The facts also established a failure of State protection. The reason why the delegate’s decision was affirmed was because the Tribunal considered that the situation in Fiji had improved. The presiding member said[3]:
The Tribunal, having considered the above cited independent evidence, which the Tribunal accepts, has great sympathy with the situation of Indo-Fijians given the widespread terrorisation of Indo-Fijians that occurred during the period of the overthrow of Dr Bavadra and then again during the period of political turmoil instigated by George Speight. However, George Speight has now been tried and sentenced for his role in the armed take-over of parliament and the independent evidence indicates that the general lawlessness that followed this armed take-over has ceased. Moreover, the prime minister has now promised to abide by the July 2003 ruling of the Fijian courts that requires the prime minister to act constitutionally and include Indo-Fijians in the cabinet, thus ensuring that Indo-Fijians have a role in restoring the multi-racial nature of Fiji society.
The independent evidence before the Tribunal confirm[s] that there appears to be no risk of institutionalised mistreatment by authorities of Indo-Fijians, whether Hindu or Muslim. As indicated above, the present law and order situation in Fiji is stable. The military have maintained their efforts assisting the police in safeguarding public security. Both security forces have worked well at restoring confidence in public safety. Civilian authorities generally exercised effective control of an unarmed civilian police force, now under Andrew Hughes, an Australian police commissioner, and the small Republic of Fiji Military Forces. There have been no instances since 2000 where security forces have acted independently of government authority.
The Tribunal has also had regard to the independent evidence cited above of a generally increased awareness of the rights of women, including functioning women’s crisis centres and a women’s movement, and that there [have] been considerable improvements at a governmental level with a functioning independent Human Rights Commission and significant improvements in police procedures, particularly as they affect women.
In the light of this evidence, which the Tribunal accepts, the Tribunal finds that should the applicant or his mother face harm at the hands of the individual who assaulted the applicant’s mother, or at the hands of the applicant’s uncle, the applicant and his mother would be able to access protection from the Fiji authorities and that such protection would not be denied them by the government on a selective and discriminatory basis for a Convention reason, viz their being Muslim Indo-Fijians, or in the case of the applicant’s mother, a woman, such as would make Minister for Immigration & Multicultural Affairs v Khawar (2002) 187 ALR 574 relevant to their situation.
The Tribunal has considered the fears expressed at the hearing that Fiji might again be subjected to a coup such as would again place Indo-Fijians at risk. The Tribunal finds such fears speculative and in the light of the independent evidence cited above of the increased recent ethnic and political stability, finds any such fears not to be well-founded.
The Tribunal also accepts the independent evidence cited above that adequate counselling services are available in Fiji to the applicant and his mother.
[3] court book, pages 170-171
The Tribunal’s reference to the High Court decision in Khawar establishes to my satisfaction that the Tribunal considered the applicant’s claim, at least in part, as a particular social group claim. What is not clear is how the Tribunal regarded that group as constructed. The decision is open to the interpretations either that the particular social group was comprised only of Fijian women, and that the other elements of the applicant’s claims were the separate matters of religion and ethnicity which could, in their own right, establish a Convention nexus. Alternatively, the presiding member might have considered the claim solely as a particular social group claim, with the group being Muslim Indo-Fijian women.
Ultimately, in my view, it does not matter which course the Tribunal followed, so long as all elements or integers of the applicant’s claims were considered and provided that, if the cumulative impact of those claims needed to be considered as an element or integer, it was considered. There is no real doubt that the three elements of the applicant’s mother’s claims, namely gender, ethnicity and religion were considered. There is also, in my view, no real doubt that the claims needed to be considered in combination as well as individually, not least because the applicant’s mother was clearly making a particular social group claim, and although not expressly articulated by her, the material squarely raised the proposition that the group could be comprised not just of women, but of Indo-Fijian, Muslim women. What is not clear is whether an inference can be drawn that the cumulative impact of those claims was considered.
I am not satisfied that the Tribunal considered the cumulative impact of the persecution claims in its forward looking assessment as to whether there was a real chance of the applicant, through his mother, facing persecution in the future by reason of the mother’s religion, ethnicity and/or particular social group membership. There is nothing express in the face of the reasons to show that the cumulative impact was considered. At its heart, the applicant’s mother was telling the Tribunal that she was unable to access State protection in Fiji because she suffered from three disadvantages, namely her sex, her ethnicity and her religion. In relation to the mother, the Tribunal directed its attention primarily to her sex. The Tribunal’s reference at court book, page 171 to the absence of risk of institutionalised mistreatment by the authorities of Indo-Fijians, whether Hindu or Muslim, deals only with the issue of State persecution, not a failure of State protection where the harm is caused by non State agents. It also does not address the issue of sex. The following paragraph, which I have quoted above, deals only with the issue of the protection of women. It does not deal with the issue of protection of Muslim Indo‑Fijian women.
In my view, on a fair and complete reading, the Tribunal’s reasons are not open to the inference that the cumulative impact of the applicant’s claims, through his mother, was considered. I conclude that there was no consideration by the Tribunal of the cumulative impact of the characteristics of the applicant’s mother in circumstances where there needed to be. This amounts to a constructive failure to consider the claims amounting to jurisdictional error.
There is no substance to the second ground of review. I am satisfied that the Tribunal member considered and accepted the applicant’s claim that she was assaulted by her brother and that she was unable to access police protection following that assault.
It is beyond the scope of these proceedings to consider the merits of the Tribunal decision. I note, however, that the Tribunal decision was in part wrong. On page 171 of the court book, the presiding member said:
The Tribunal has considered the fears expressed at the hearing that Fiji might again be subjected to a coup such as would again place Indo-Fijians at risk. The Tribunal finds such fears speculative and in the light of the independent evidence cited above of the increased recent ethnic and political stability, finds any such fears not to be well-founded.
As is now notorious, a further coup did take place shortly after the Tribunal decision. It is a matter for the Tribunal to consider whether that new coup places Indo-Fijians, especially women and Muslims, at further risk. In undertaking that consideration, in the interests of consistency, it would be appropriate for the Tribunal to consider the reasons for decision of Senior Member Giles Short in a decision in a factually similar case signed on 19 December 2006 and handed down on 11 January 2007[4]. Relevantly, Mr Short said:
[4] RRT case number 060827451
The implications of the coup
As referred to above, since the date of the hearing in this matter there has been another coup in Fiji. On 5 December 2006 the military commander, Commodore Bainimarama, announced that he had appointed himself head of state, dismissed the elected government and appointed a former military doctor, Jona Senilagakali Baravilala, as interim prime minister. While he initially suggested that the interim government would only hold power until fresh elections were held, more recently he has threatened that the ‘transitional regime’ could rule Fiji for up to 50 years (Paul Tait, ‘Fiji military stages coup, fourth in 20 years’, Reuters, 5 December 2006, CX166394; ‘Army rule indefinite, Fiji chiefs told’, Australian Associated Press, 14 December 2006, CX167072).
Unlike earlier coups the present coup does not pit the ethnic Fijian and Indo-Fijian communities against each other: it represents a struggle for power within the ethnic Fijian community. There is evidence that some Indo-Fijians at least support the coup but that equally they fear what its consequences will be. While the coup has been bloodless to date there have been calls for resistance and the potential for violence remains (Paul Tait, ‘Fiji military stages coup, fourth in 20 years’, Reuters, 5 December 2006, CX166394; ‘Fiji: Indians keen to leave’, Australian Associated Press, 11 December 2006, CX166804; David Brooks, ‘Fiji military warns anti-coup dissent could lead to violence’, Agence France Presse, 11 December 2006, CX166840).
As I acknowledged in the course of the hearing before me, there was civil unrest at the time of the attempted coup in May 2000 and this disproportionately affected the Indo-Fijian community and women in particular (US State Department, Country Reports on Human Rights Practices for 2000 in relation to Fiji, Section 5, Discrimination Based on Race, Sex, Religion, Disability, Language, or Social Status - National/Racial/Ethnic Minorities; (Research Directorate, Immigration and Refugee Board of Canada, ‘Fiji: Whether Indo-Fijian women have been targeted by ethnic Fijian men since the May 2000 coup; state protection available for Indo-Fijian women (May 2000 - January 2001)’, 16 January 2001, FJI36016.E). I consider that there is at least a real chance that the country will once again descend into violence in the reasonably foreseeable future and that the Indo-Fijian community, and Indo-Fijian women in particular, will become the targets of violence.
The evidence to which I have referred above suggests that, if this occurs, the authorities will be ineffective in preventing it. The evidence suggests that at the time of the coup in May 2000 the police failed to prevent violence against the Indo-Fijian community and in some cases were participants in the violence (US State Department, Country Reports on Human Rights Practices for 2000 in relation to Fiji, Section 5, Discrimination Based on Race, Sex, Religion, Disability, Language, or Social Status - National/Racial/Ethnic Minorities). It suggests that even after law and order was supposedly restored the police and the judiciary failed to provide justice, leading the Coordinator of the Fiji Women’s Crisis Centre in Suva to take the view that crimes against property were being taken more seriously than crimes against women and children in Fiji (Research Directorate, Immigration and Refugee Board of Canada, ‘Fiji: Whether Indo-Fijian women have been targeted by ethnic Fijian men since the May 2000 coup; state protection available for Indo-Fijian women (May 2000 - January 2001)’, 16 January 2001, FJI36016.E).
The question of what degree of protection a state is required to provide was considered in Minister for Immigration and Multicultural Affairs v Respondent S152/2003 (2004) 205 ALR 487, a case relating to Ukraine, where Gleeson CJ and Hayne and Heydon JJ observed (at [26]) that:
‘No country can guarantee that its citizens will at all times, and in all circumstances, be safe from violence. … The Ukrainian state was obliged to take reasonable measures to protect the lives and safety of its citizens and those measures would include an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system. None of the country information before the Tribunal justified a conclusion that there was a failure on the part of Ukraine to conform to its obligations in that respect.’
Their Honours referred in this context to a failure of state protection ‘in the sense of a failure to meet the standards of protection required by international standards’ (at [27]). Having regard to the information referred to above, I accept that the protection afforded by the Fijian Government in relation to the sort of incidents of racially-motivated violence, particularly against Indo-Fijian women, which I accept will occur if the country descends into violence as has occurred following past coups, fails to meet the standards of protection required by international standards in that neither the police force nor the criminal justice system in Fiji can be said to be reasonably effective in these circumstances.
I accept, therefore, that, if the Applicant returns to Fiji now or in the reasonably foreseeable future, there is a real chance that she will be the victim of physical or sexual assault by ethnic Fijians. I consider that if this occurs it will be for reasons of her membership of the particular social group of Indo-Fijian women in Fiji. In Applicant S v Minister for Immigration and Multicultural Affairs (2004) 206 ALR 242 at [36] Gleeson CJ, Gummow and Kirby JJ gave the following summary of principles for the determination of whether a group falls within the definition of a ‘particular social group’:
‘First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a “social group” and not a “particular social group”.’
I accept that in accordance with these principles women in a particular society may form a ‘particular social group’ for the purposes of the Refugees Convention in that they have identifiable characteristics or attributes common to all members of the group and which distinguish them as a group from society as a whole: see Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 at paragraphs [32] to [35] per Gleeson CJ, and at paragraphs [81] to [83] per McHugh and Gummow JJ. I accept on the basis of the evidence referred to above that Indo-Fijian women as a group have been singled out for attack for reasons of their membership of that group in the context of the violence which has followed past coups.
I consider that the persecution which the Applicant fears involves ‘serious harm’ as required by paragraph 91R(1)(b) of the Migration Act in that it involves significant physical harassment or ill-treatment. I consider that the Applicant’s membership of the particular social group of Indo-Fijian women in Fiji is the essential and significant reason for the persecution which she fears, as required by paragraph 91R(1)(a), and that the persecution which she fears involves systematic and discriminatory conduct, as required by paragraph 91R(1)(c), in that it is deliberate or intentional and involves her selective harassment for a Convention reason, namely her membership of the particular social group of Indo-Fijian women in Fiji. I consider on the evidence before me that there is no part of Fiji to which she could reasonably be expected to relocate where she would be safe from the persecution which she fears.
I find that the Applicant is outside her country of nationality, Fiji. For reasons given above, I find that she has a well-founded fear of being persecuted for reasons of her membership of the particular social group of Indo-Fijian women in Fiji if she returns to that country now or in the reasonably foreseeable future. I find that the Applicant is unwilling, owing to her fear of persecution, to avail herself of the protection of the Fijian Government. There is nothing in the evidence before me to suggest that the Applicant has a legally enforceable right to enter and reside in any country other than her country of nationality, Fiji. I therefore find that the Applicant is not excluded from Australia’s protection by subsection 36(3) of the Act (see Applicant C v Minister for Immigration and Multicultural Affairs [2001] FCA 229; upheld on appeal, Minister for Immigration and Multicultural Affairs v Applicant C (2001) 116 FCR 154). It follows that I am satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Consequently the Applicant satisfies the criterion set out in paragraph 36(2)(a) of the Migration Act for the grant of a protection visa.
The applicant should receive relief in the form of the constitutional writs of mandamus and certiorari. I will so order.
I will hear the parties as to costs.
Finally, I wish to place on record, the Court’s gratitude to Ms Baw, for her willingness to appear in this matter pro bono publico.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 2 April 2007