SZNCT & SZNCU v Minister for Immigration & Anor - [2009] FMCA 233

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNCT & SZNCU v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 233

MIGRATION – Review of decision of Refugee Review Tribunal – Applicants who are minors – seeking impermissible merits review – findings open to the Tribunal on what was before it – Tribunal did not act unreasonably – whether Tribunal erroneously considered s.91R(3) – Tribunal did commit jurisdictional error in considering s.91R(3) – error did not deny the applicants procedural fairness – discretion to allow relief not exercised – application dismissed with costs.

Migration Act 1958 (Cth), ss.48A, 65, 422B, 36(2), 424, 427, 91R(3)

SBNC v Minister for Immigration and Multicultural Affairs [2006] FCA 200
SBNC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 137
SZLHC v Minister for Immigration & Citizenship [2007] FMCA 2026
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35
Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 437
SZEHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1389
Minister of Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Applicant A169/2003 v Minister of Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8
WAEE v Minister of Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184
Paul v Minister of Immigration and Multicultural Affairs (2001) 113 FCR 396; [2001] FCA 1196
Singh v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1113
SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259
SJSB v Minister to Immigration Multicultural and Indigenous Affairs [2004] FCAFC 225
NAST v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCAFC 208
Minister for Immigration Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration and Ethnic Affairs v Guo & Anor [1997] HCA 22, (1997) 191 CLR 559
Minister for Immigration & Citizenship v Lee (2007) 164 FCR 151
Prasad v Minister for Immigration and Ethnic Affairs (1985) FCR 155
Minister for Aboriginal Affairs v Peko -Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs; [2005] HCA 24; (2005) 79 ALJR 1009
Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26
Minister for Immigration and Multicultural and Indigenous Affairs and Anor; Ex parte Applicants S134/2002 [2003] HCA 1
SZLWI v Minister for Immigration and Citizenship [2008] FCA 1330

First Applicant:

SZNCT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 8 of 2009

Judgment of:

Nicholls FM

Hearing date:

10 March 2009

Date of Last Submission:

10 March 2009

Delivered at:

Sydney

Delivered on:

20 March 2009

Second Applicant:

SZNCU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 9 of 2009

Judgment of:

Nicholls FM

Hearing date:

10 March 2009

Date of Last Submission:

10 March 2009

Delivered at:

Sydney

Delivered on:

20 March 2009

REPRESENTATION

Appearing for the Applicants:

Their Litigation Guardian

Solicitors for the Applicants:

None

Counsel for the Respondents:

Mr A Markus

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS – SYG 8 of 2009

The application made on 5 January 2009 is dismissed.
The litigation guardian for SZNCT pay the first respondent’s costs set in the amount of $2,900.

ORDERS – SYG 9 of 2009

The application made on 5 January 2009 is dismissed.
The litigation guardian for SZNCU pay the first respondent’s costs set in the amount of $2,900.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 8 of 2009

SZNCT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

SYG 9 of 2009

SZNCU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

I have before me two applications made on 5 January 2009 under the Migration Act 1958 (Cth) (“the Act”) seeking review of the decisions of the Refugee Review Tribunal (“the Tribunal”) which affirmed the decisions of the delegate of the respondent Minister to refuse protection visas to the applicants.

Background

The applicants are twin brothers (“SZNCT” – SYG 8 of 2009, “SZNCU” – SYG 9 of 2009). They were born on 18 January 2006 in Australia.
Bundles of relevant documents have been filed in both matters. The bundle of relevant documents in relation to SZNCT contains the complete set of relevant documents (the Court Book – “CB”. The bundle of documents for SZNCU is referred to as the second Court Book – “2 CB”).
The applicants’ parents are both Fijian nationals. Their father arrived in Australia on 13 October 2004 (CB 178.3) and it appears that the applicants’ mother and the applicants’ two elder brothers arrived in Australia on 27 November 2004.
The family has been involved in a number of applications for protection visas, and litigation seeking judicial review of decisions that were unfavourable to them. From the material before the Court the following background may be ascertained:
1)The applicant’s mother, father and two elder brothers arrived in Australia in 2004.
2)The applicants’ mother applied for a protection visa on 7 December 2004. The applicants’ father and elder brothers applied as her dependants (see CB 1 to CB 52). This application was refused by a delegate of the Minister on 7 February 2005.
3)The applicants’ mother sought review by the Tribunal. Given that the application was lodged out of time, it found that it did not have jurisdiction (CB 178.4).
4)An application seeking judicial review was unsuccessful (see SBNC v Minister for Immigration and Multicultural Affairs [2006] FCA 200 per Finn J).
5)On 21 August 2006 an appeal to the Full Court from the judgement of Finn J was dismissed (see SBNC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 137).
6)A subsequent application for special leave to appeal to the High Court was dismissed on 14 June 2007.
7)A second application for judicial review of the delegate’s decision was lodged in this Court. This was subsequently dismissed as an abuse of process on 5 December 2007 (SZLHC v Minister for Immigration & Citizenship [2007] FMCA 2026 per Scarlett FM).
8)A subsequent application to appeal that judgement was dismissed in the Federal Court on 20 June 2008.
9)The applicants’ father applied for a protection visa on 11 June 2008. The applicants, their mother, and elder brothers were also applicants as his dependents (see CB 53 to CB 121).
10)The applicants’ father was notified on 24 June 2008 that he, his wife and his two elder sons were barred from making this application pursuant to s.48A of the Act, but that the two applicants currently before Court were not so barred (see CB 130 to CB 131).
11)The applications by both applicants were lodged on their behalf by their father on 30 July 2008 (see CB 133 to CB 147 and in relation to SZNCU, see 2CB 1 to 2CB 15).
12)On 2 September 2008 a delegate of the Minister refused the grant of the visas (see CB 2 to CB 157 and 2CB 1 to 2CB 15).
13)The applicants made separate applications to review those decisions on 1 October 2008 (see CB 162 to CB 163 and 2CB 26 to 2CB 29).
14)The applicants’ parents appeared at a hearing before the Tribunal on 26 November 2008 (CB 170). The applicants were not present.
15)On 2 December 2008 the Tribunal affirmed the delegate’s decision (CB 177 to CB 194).

Applicants’ claims to protection

Before the Tribunal, the applicants’ claims to fear persecution in Fiji were that they feared harm if they were to go to Fiji with their father, due to their father’s actual, or imputed, political opinion. The basis for this fear was said to arise from their father’s past actions, both in Fiji and in Australia, and related to certain threats directed to him.
Specifically, the claims to fear harm were said to be:
1)The applicants’ father was a high level public servant in Fiji. He left in 2004 following the military and government being at “loggerheads”. He had been threatened by soldiers during a coup (led by George Speight) in 2000. He claimed that the military imputed him with supporting the coup although he was not a supporter of George Speight.
2)The applicants’ father claimed to be a supporter of the “Reconciliation Bill” which was opposed by the military and he was threatened by them because of his public support. He claimed to support the Fijian Indian community.
3)After the subsequent coup led by Commodore Bainimarama (in 2006) the applicants’ father spoke to the local “Area News” in the Riverina in New South Wales, where he had been living and working, and had criticised that coup which he regarded as “unlawful”.
Amongst matters put in support of their claims are the following:
1)A letter dated 18 January 2008 purportedly from Peceli Kinivuwai, the National Director of the Soqosoqo Duavata ni Lewenivanua (“SDL”) Party in Suva, Fiji (CB 172).
2)A handwritten letter, purportedly dated 26 May 2005 and purportedly signed by the nightwatchman at a Fijian Public Words Department quarry (CB 173).
3)Extracts from the Riverina Area News, dated 8 December 2006, identifying the applicant’s father as the then president of the Fijian community in the Riverina and reporting his condemnation of the Prime Minister Qarase by Commodore Bainimarama (CB 175).

The Tribunal

The Tribunal’s account of what occurred at the hearing is set out in its decision record at CB 184.1 to CB 186.6. The applicants’ father was given the opportunity to put forward the factual basis of the claims to fear harm in Fiji (fears that presumably were imputed to the two young applicants if they were to go to Fiji with their parents).
From the Tribunal’s account, it specifically put to the applicants’ father:
1)Claimed episodes of harm: “appeared at best to be examples of heated misunderstandings during a long-since resolved crisis back in 2000 …” (CB 184.6).
2)In the following four years after the George Speight coup “he evidently kept his job”, and that “this suggested that he was not of any ongoing interest to powerful forces in Fijian society” (CB 185.2).
3)There were differences between the claims made by the applicants’ father to the Tribunal and claims made by the applicants’ mother in 2005 in her protection visa application (in which the applicants’ father was an applicant as her dependent). Specifically, that the applicants’ mother’s claims to fear harm (from the period in 2005) appeared to emanate from those who supported the George Speight coup against the Indian led government of the day, and who opposed the applicants’ family in helping ethnic Fijian Indians in Fiji, whereas the applicants’ father claimed that the sources of persecution were the military who had suppressed the George Speight coup and had imputed that he had been a supporter of George Speight.
The Tribunal’s account reports that it put to the applicants’ father that the differences were “not satisfactorily explained” and that this might lead it to being unsatisfied as to “the credibility of substantive claims”. The applicants’ father and mother provided an explanation and sought to further explain this in a submission received by the Tribunal following the hearing (see CB 173 to CB 175 and CB 186.7 to CB 188.7).

The Tribunal’s consideration

The Tribunal gave “weight” to the “fact” that the claims lodged originally by the applicants’ mother (and given that he was part that application, the applicants’ father at that time) “were denounced by both of the Applicants’ parents, at the RRT hearing, and by the Applicants’ father in writing later on, as false claims” (CB 189.3).
The Tribunal considered: “the various and sometimes contradictory explanations” given by the applicants’ father and the contradictory claims originally made by the applicants’ mother, which were subsequently “denounced”, as leading it to consider the applicants’ parents as being “unreliable witnesses”, and that the: “new claims, presented on behalf of the present Applicants by their father, should be approached with great caution” (CB 189.5).
The Tribunal accepted that the applicants’ father had worked as a public servant in Fiji for over 25 years up to late 2004. It considered that his having stayed in a “government job” for over four years after the Speight coup in 2000: “to be strong evidence that politically and socially influential forces in Fiji took no significant interest in him” (CB 189.7).
Although it accepted “with some difficulty” that the applicants’ father had “some cross moments with soldiers during the days in mid-2000” it found that the applicants’ father “plainly exaggerated” these events. Further, it found that a letter from a party official (which stated that during the 2000 coup the applicants’ father: “was ‘subjected to a lot of incidents that both threatened his life and family and also his property’”) to be a: “vague, unexplained and fairly bald assertion” (CB 189.8).
Given the evidence before it, the Tribunal gave “no weight” to what was said to have happened to the applicants’ father during the army’s response to the Speight coup in 2000, did not accept the claim that he was regarded as a Speight supporter and, in particular, gave “greater weight” to the evidence of a witness, who: “said in writing that once the soldiers knew who the Applicants’ father was, on the occasion they ordered him to lie on the ground, they let him go” (CB 189.9 to CB 190.1).
The Tribunal did not accept that the claimed views of the applicants’ father were formed in 2000 and “logically” found that “a significant basis for the army’s suspicion of the Applicants’ father does not exist” (CB 190.3).
The Tribunal gave no weight to a letter from the party official which referred to the applicants’ father’s family as having been harassed, and preferred other evidence before it, which stated that when the army discovered that he was a senior public servant: “they treated him with more respect and let him get on with his day” (CB 190.4).
While the Tribunal accepted that the applicants’ father was a supporter of the SDL Party in Fiji (“With great difficulty”), it did not accept that he was an active supporter and therefore did not give any weight to the vague suggestion that he was victimised due to his support for the party (CB 190.7). Nor did the Tribunal accept that the applicants’ father: “ever took a public stand in regard to the Reconciliation Bill or that he ever attracted criticism from the army or anyone else for doing so or seeming to do so”(CB 190.6).
The Tribunal noted that the applicants’ father did not leave Fiji until over four years after the Speight coup and gave no weight to his explanation that this was because: “threatening phone calls … did not start until later on” (CB 190.9).
The Tribunal also considered whether the conduct of the applicants’ father in Australia (that is, disseminating an opinion against the 2006 coup in an interview that he gave to the (Riverina) “Area News” and an article that subsequently appeared in that publication) was conduct that should or should not be disregarded under s.91R(3) of the Act. The Tribunal also considered whether the conduct of the applicants’ father in becoming the president of the “Riverina Fijian Association” and having given his opinion in that context was similarly conduct that should be disregarded or not disregarded pursuant to section 91R(3).
The Tribunal found that the applicants’ father, in becoming the president of the Riverina Fijian Association “should not be disregarded under s.91R(3)”, and also, for reasons given, did not “consider it appropriate to disregard the conduct of the Applicants’ father in providing an opinion about the 2006 coup to the Area News in December 2006” (CB 191.7)
However, taking this conduct into account, the Tribunal ultimately found that it could not be satisfied that the applicants would face: “significant detriment in Fiji as a result of what their father has said, been and done in Australia” (CB 192.7).
In all, therefore, the Tribunal found that it was not satisfied that the applicants faced a real chance of Convention-related persecution in Fiji and that they were therefore not owed protection obligations under the Refugees Convention in Australia. Accordingly, it affirmed the decisions under review.

Applications to the Court

The applicants have made separate, but identical, applications to the Court. I note also that both applications were signed by the applicants’ father who described himself as their “father and guardian”.
The grounds of the applications are as follows:
1)“1. The Tribunal failed to accord ‘Procedural Fairness’ …”
This is particularised as:
a) Its failure to carry out its role in an “Inquisitorial Manner”.
b) A complaint about the weight it gave to the applicants’ mothers’ other claims in the original application for a protection visa in circumstances where “an honest explanation of these claims” had been given by the applicants’ parents.
c) A failure to carry out the review pursuant to s.414 of the Act.
2)The Tribunal acted in a “manifestly unreasonable” manner because it failed to consider the claims in accordance with Article 1A(2) of the UN Convention Relating to the Status of Refugees.
3)The Tribunal failed to request more information regarding the applicants’ father’s victimisation for his political affiliations and activities in as referred to in the SDL letter from the SDL official.
Both applicants have had filed on their behalf an identical document headed “Applicant’s Contentions of Fact and Law”. This document refers to s.91R of the Act, but then sets out a number of cases as to what was said to amount to “persecution” for the purposes of the Convention prior to the commencement of that section.
In addition to some brief repetition of the complaints in the application, this document also asserts that: “The delegate in failing to make specific findings has failed to reach the required state of satisfaction or non-satisfaction as per s 65 (1) of the Migration Act.”
The Court also has before it the purported affidavits of the two applicants (noting again that they are three years old). What is described as the “Signature of deponent”, is the signature of the applicants’ father.
The Court also has before it the first respondent’s response, and written submissions filed on behalf of the first respondent on 2 March 2009.

Hearing before the Court

There was no objection to the hearing in relation to both applicants proceeding at the same time. The applicants’ father also confirmed that he understood his responsibilities and obligations while acting as the children’s litigation guardian (he had been previously appointed).

The applicants’ father was assisted by an interpreter in the Bauan dialect of the Fijian language. Mr A Markus appeared for the first respondent.
The applicants’ father made submissions and complained about the following:
1)With reference to “page 6” of the Tribunal’s decision record (see CB 182), the Tribunal did not properly investigate, what I ultimately understood to be, the applicants’ complaint that the Tribunal had regard to the applicants’ mother’s claims in her protection visa application and that it had failed to investigate the applicants’ father’s subsequent claims, which the father said were true.
2)The Tribunal did not accept, and did not give any weight, to the letter of support from the SDL party official.
3)The applicants’ father was in a position now to provide further evidence as to the truth of his claims before the Tribunal and, in particular, was able to provide evidence from the current Fijian Prime Minister.
4)The Tribunal failed to assess the applicants’ father’s claims.
5)The Tribunal failed to accord procedural fairness to the applicants’ father because: “of the little weight it gave to the claims of the applicant’s mother in her application for a protection visa despite an honest explanation of these claims by both of the applicant’s parents.”
6)The “delegate” failed to make specific findings and therefore failed to reach the required state of satisfaction as required by s.65 of the Act.

Ground One

While ground one of the application asserts a failure to accord “procedural fairness” to the applicants, the particulars provided to that ground appear to be a challenge to the Tribunal’s findings of fact, rather than arising from any of the matters set out in Division 4 of Part 7 of the Act. These are cases to which s.422B of the Act applies, making the matters set out in Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule (of course, absent bias) (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59]-[67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48]).
The particulars appear to complain that the Tribunal failed to carry out its role in an “inquisitorial manner” because the Tribunal only considered the SDL official’s letter in relation to the father’s claimed support for the SDL, and presumably did not make any further enquiry as to the truth, or otherwise, of his claims in relation to his support for that political party. The particulars also take issue with the Tribunal’s finding that the applicant’s father was not an active member of the SDL, nor a vocal supporter of the Reconciliation Bill, nor an active supporter of the Indian community in Fiji.
To the extent that the applicants seek to challenge the factual findings made by the Tribunal, in the circumstances of this case this amounts to no more than a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259).
The applicants appear to complain that contrary to its statement that it had considered all the evidence before it, the findings made by the Tribunal demonstrated that it had not considered all the evidence as it had claimed.
It is well established that the Tribunal need not uncritically accept an applicant’s claims: Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 437 at 451.
To the extend that the applicant’s complaint may be construed as a complaint that the Tribunal failed to consider evidence that would support findings contrary to those ultimately made by the Tribunal, this complaint is not made out.
First, the Tribunal is not required in its written reasons to deal with every piece of evidence that might be thought to be relevant: SZEHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1389, per Lindgren J and authorities there cited, Singh v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1113.
Second, the Tribunal is not required to make findings on each piece of evidence before it, nor to refer to each individual piece of evidence to demonstrate that it has taken into account the fact or facts to which the evidence refers: Minister of Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [68], [73]-[74] and [91], Applicant A169/2003 v Minister of Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 at [24], WAEE v Minister of Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [47], Paul v Minister of Immigration and Multicultural Affairs (2001) 113 FCR 396; [2001] FCA 1196.
Third, in my view, having regard to the Tribunal’s reasons for decision, and on a plain reading of it, there is no suggestion that the Tribunal failed to undertake a “proper, genuine and realistic consideration [of] the merits of the case”: SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724 at [39], per Rares J.
Further, as the Minister submits, that in the circumstances of this case the Tribunal was not required to make further enquiries or seek further information in relation to the applicants’ father’s claimed support of the SDL, or even of the Reconciliation Bill. It is for an applicant to put forward his or her case, and to be given a reasonable opportunity to provide relevant material. It is for the Tribunal to consider this material and to reach the requisite level of satisfaction mandated by the relevant statutory provisions (ss.65 and 36(2) of the Act) such that the protection visa must be granted (SJSB v Minister to Immigration Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15]- [16], NAST v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4]-[5] and Minister for Immigration Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73, Minister for Immigration and Ethnic Affairs v Guo & Anor [1997] HCA 22, (1997) 191 CLR 559).
While the Tribunal plainly has the power to conduct further investigations and inquiries (per s.424 and s.427, for example), I cannot see that the particular circumstances of these cases required the Tribunal to engage the use of these provisions. Such use, of course, being discretionary, and not mandatory. Nor was it the case that factual material critical to the consideration of these matters was readily available (see Minister for Immigration & Citizenship v Lee (2007) 164 FCR 151 at 60, Prasad v Minister for Immigration and Ethnic Affairs (1985) FCR 155 at 169 – 170).
The applicants also complain that the Tribunal stated in its decision record that it had: “considered all of the evidence before it” but then complained that it was a “contra finding” by the Tribunal to state that: “the only evidence suggesting that the Applicants might be affected by their father’s support for the SDL appears in the SDL’s official letter …”
First, it should be noted that the Tribunal’s statement that it considered all of the evidence before it was not a finding made by the Tribunal, but merely the Tribunal expressing confirmation that it had looked at “the evidence before it”. The statement appears in paragraph [108] of the Tribunal’s decision record (CB 190.8). It plainly reveals that the “only evidence” (other than what the father told the Tribunal) the Tribunal could identify before it that the applicants’ father supported the SDL, was the SDL’s official letter.
Any plain reading of the Tribunal’s reasoning is that the letter, and what was stated in that letter, when viewed in light of the other evidence before it, including the Tribunal’s view of the applicants’ father’s: “propensity to subscribe to false and/or exaggerated claims” (CB 190.8), was a finding that was open to it on the material before it. Particularly, given the father’s participation in the mother’s application for a protection visa where diametrically opposed claims were made. I cannot see any inconsistency in the Tribunal’s approach in this regard as it appears to be suggested by the applicants. This complaint does not succeed.
To the extent that this complaint also appears to imply some failure on the part of the Tribunal to further investigate the applicants’ father’s involvement with the SDL, his support for the Reconciliation Bill, or his claimed active support of the Indian community in Fiji, and as this may be said to have arisen from what was originally claimed in the application for protection visas made by the mother (of which the father was a part), then it is quite clear that both of the applicants’ parents at the hearing before the Tribunal plainly stated that those claims made in 2005 were not true (see CB 186.4 and CB 186.3, where the claims were plainly said to be “all false” and “were not true”).
In view of this, there was clearly no obligation on the Tribunal to further investigate these claims or to take these claims into account as support for the applicants’ position. This complaint also does not succeed.
In particular, the applicants also complain that the Tribunal fell into error by failing to request further information from the SDL official in respect to the applicant’s father’s victimisation for political affiliations and activities in the SDL.
The Tribunal is not required to make inquiries: Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16, SZILK v Minister for Immigration and Citizenship [2007] FCA 185 at [18], SZIYN v Minister for Immigration and Citizenship [2008] FCA 151 at [16].
Although proceedings before the Tribunal are inquisitorial (Re Minister for Immigration and Multicultural Affairs, Ex parte Applicant 154/2002 (2003) 201 ALR 437 at [58], the Tribunal is not in the position of a contradictor. It is for the applicant before the Tribunal to advance whatever evidence or argument he or she wishes to advance in support of the contention that he or she has a well-founded fear of persecution for a Convention reason: Abebe v The Commonwealth (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ.
It is not for the Tribunal to make out the applicants’ cases for them: Pradad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170. See also SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [40], per the Court (Gleeson, Kirby, Hayne, Callinan and Heydon JJ).
The applicants’ also complain that the Tribunal gave weight to the claims in the applicants’ mothers’ application for a protection visa in 2005: “notwithstanding an honest explanation of these claims by both the applicants’ parents”.
It is within the proper exercise of the Tribunal’s function that it is entitled to accept or reject, or give weight to, the evidence put forward by the applicant as it things appropriate in all the circumstances: Abebe v The Commonwealth (1999) 197 CLR 510 at [197] per Gummow and Hayne JJ, Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27].
It is, as submitted by the Minister, for the Tribunal to determine what weight is to be given to the evidence before it. In the circumstances of this case, it was not unreasonable for the Tribunal to place some weight on the fact that both parents subsequently made statements before it that the earlier claims in 2005 were “false” and “not true”.
Further, the Tribunal plainly considered the explanation provided by the applicants’ father, both at the hearing and subsequently in writing (see in particular CB 174, CB 185.3 to CB 186.6 and CB 189.3 to CB 189.5).
On the material before the Court, it was plainly open to the Tribunal to find that, in particular, the applicants’ father, had given “various and sometimes contradictory explanations” (CB 189.4) as to why these false claims had been presented. It was clearly open to the Tribunal in these circumstances to find that the applicants’ parents were “unreliable witnesses”. Far from being “manifestly unreasonable” (Minister for Aboriginal Affairs v Peko -Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at [41]), the Tribunal’s findings had foundation, and were plainly reasonable. This complaint also does not succeed.
To the extent that the applicants complain about the factual findings made by the Tribunal, it is well-established that the weight attributed to material before the Tribunal is a factual matter for the Tribunal and does not demonstrate error of law. Further, the fairness and correctness of the Tribunal’s findings of fact cannot be the subject of judicial review: SZANK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1478 at [16], per Hely J, NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [11], Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 309, Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 281-282 per Brennan CJ Toohey , McHugh and Gummow JJ, at 291 per Kirby J.
The findings made by the Tribunal were open to it on the evidence before it, and in those circumstances, no error is demonstrated: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-559, W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 at [64] to [69] per Tamberlin and Nicholson JJ.
To the extend that the applicants complain about the fairness of the Tribunal’s findings, it is accepted that on an application for judicial review the Court cannot review the fairness of those factual findings: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10], Attorney-General (NSW) v Quin (1990) 170 CLR at 35-36, per Brennan J.
Ultimately, the authorities provide that a review of the reasons of the decision-maker on proper principles must not be turned into reconsideration of the merits of the decision: Wu Shan Liang at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (citing Attorney-General (NSW) v Quin (1990) 170 CLR a at 35 to 36) and at 291 per Kirby J, Abebe v The Commonwealth (1999) 197 CLR 510 at [195] per Gummow and Hayne JJ.

Ground: Failure to assess claims in accordance with s.414 of the Act

The applications assert (as does the document: Contentions of Fact and Law) that the Tribunal committed jurisdictional error in failing to assess the applicants’ claims in accordance with s.414 of the Act. This complaint is not particularised.
Section 414 of the Act requires the Tribunal to conduct a review in respect to a valid application for review made under s.412 for review of an “RRT-reviewable decision”.
It is clear that the Tribunal did conduct a review of the delegate’s decisions.
This complaint is not made out.

Ground Two – Failure to consider in accordance with Article 1A(2)

In the second numbered ground of the applications, the applicants complain that the Tribunal acted in a “manifestly unreasonable” manner because it failed to consider the claims in accordance with the definition of “refugee” (Article 1A(2) of the Refugees Convention). The applicants rely on a number of the excerpts from the Tribunal’s decision record in support of this assertion.
Even if unreasonableness were to be seen as an applicable ground of review to the applicants’ case, and even to the extent that illogicality may be said to be available in some circumstances (see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30 at [9] per Gleeson CJ), there is nothing in the analysis put forward by the Tribunal in its decision record to support any such claims.
The parts of the Tribunal’s decision record reproduced in the applications (extracts from paragraphs [102] [107] [109] [110] and [121] – see CB 189 to CB 192 of the decision record) plainly do not reveal any support for any claim of “unreasonableness” or illogicality, nor for that matter “unreasonableness” in the “Wednesbury sense” (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223).
I agree with the Minister’s submissions that there was nothing of weight in the evidence or material before the Tribunal to say that the applicants’ claims, that is, relevantly that the Fijian military viewed the applicants’ father as a Speight supporter, that he had taken a public stand against the Reconciliation Bill, or that he would face harm on return to Fiji because of his statement in the Riverina newspaper were true (see in particular Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 368). This complaint also does not succeed.
The Tribunal’s record reveals that it considered the definition of “refugee” as set out in Article 1A(2) of the Refugees Convention. In my view, the Tribunal properly considered all the applicants’ claims.
In essence, what the applicants again seek is impermissible merits review (Wu Shan Liang).
This complaint is not made out.

Ground: Failure to request more information

In the third numbered ground the applicants complain that the Tribunal fell into jurisdictional error by failing to request more information regarding the applicants’ father’s fear of harm arising from his claimed political affiliation and activities. In essence, this ground does not differ from what was claimed in ground one and fails for the same reasons.

Other complaints

The applicants’ “Contentions of Fact and Law” do not materially add to the complaints as set out in the application. Nor was the applicants’ father able to further assistant the Court during the hearing in this regard. The applicants’ reference in that document to s.91R of the Act appears to be particularised with reference to a number of High Court judgements dealing with the concept of “persecution” before the introduction of s.91 into the Act. However, this is a case to which that section applies, and the reference to those judgments does not assist the applicants before the Court now. For the remainder, the applicants’ complaints mirror what was set out in the applications.
Before the Court, the applicants’ father pressed the complaints already presented, but no matters of substance were added.
The applicants’ “Contentions of Fact and Law” and the applicants’ father before the Court made reference to the “delegate”. In context, I understood this to be a reference to the Tribunal. (The Court has no jurisdiction to review the delegate’s decisions: See s.476(2)(a) and s.476(4)).

Section 91R(3)

Given that the applicants appeared before the Court through their father, their litigation guardian, and without legal representation, I did raise with Mr Markus whether the Tribunal had properly dealt with section 91R(3) of the Act.
That section is in the following terms:
“For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.”
The Tribunal was presented with applications involving two applicants aged nearly three years old. Their applications to claim to fear harm for a Convention reason, if they were to go to Fiji, were based on circumstances and experiences claimed to have occurred to their father in Fiji, and to arise from conduct engaged in by the father in Australia.

The applicants’ father had put forward the claim that he had become president of the Riverina Fijian Association and that in this capacity he had made comments which were reported in a local newspaper (the Riverina “Area News”) and which were critical of those perpetrating the coup and having “condemned the coup in Fiji in 2006, as unlawful and uncontrolled”.
In its analysis, the Tribunal considered that the provisions of s.91R(3) may be engaged and proceeded to consider whether such conduct should, or should not, be disregarded for the purposes of s.91R(3).
Ultimately, the Tribunal found that the election of the applicants’ father to president of the Association: “should not be disregarded under section 91R(3)” (CB 191.5), and that the applicants’ father’s conduct in providing an opinion about the 2006 coup to the Riverina “Area News” in December 2006 should also not be disregarded (CB 191.7).
The Tribunal then proceeded to consider this conduct in considering the question as to whether the applicants would face harm on going to Fiji as a result of their father’s conduct in Australia. Ultimately, the Tribunal answered that question in the negative (CB 192.8).
In my view, it was appropriate for the Tribunal to have regard to the applicants’ father’s conduct in Australia. It was, after all, the applicants’ father’s conduct and experiences in Fiji in Australia that formed the sole basis for the claims to need protection, such as to avoid them going to Fiji, where as a result of their father’s actions and experiences it was said that they would also be at risk of harm.
However, in my view it was not appropriate for the Tribunal to turn its mind to s.91R(3). The father’s conduct in Australia – while plainly an essential part of the applicants’ claims – was not conduct engaged in by the applicants themselves, such as to require the engagement of s.91R(3) and to require consideration as to whether such conduct should or should not be disregarded for the purposes of that section.
In my view, in light if the plain language of s.91R(3) it is the conduct of the applicant in Australia that engages that section, not the conduct of a third party.
The language of the section makes reference to the application of the Act “to a particular person”, and in determining whether “the person” has a well-founded fear, to the disregard any conduct engaged in “by the person in Australia”. In context, this can only mean the applicant, given that the Tribunal can only be concerned with determining whether the applicant has a well-founded fear of persecution. Importantly, not some third party.
The circumstances of the current case present somewhat rare (although by no means unique) circumstances of applicants who are minors, who are presented as applicants in their own right, and not as dependents of their parents in an application made by them.
In the current case, plainly, the two young applicants did not put forward any claims to fear harm on going to Fiji, other than claims that were said to emanate from their fathers’ experiences and conduct (see for example: “I fear persecution if I have to go to Fiji because I will accompany my father who have left Fiji …” – CB 139).
The Tribunal quite properly, therefore, considered the applicants’ claims to fear harm on going to Fiji, as that harm was said to arise from circumstances relevant to their father. It was therefore required to consider their fathers’ experiences and his claims, including claims arising from conduct in Australia, in the context of the consequences for his two children.
Nonetheless, s.91R(3), does not contemplate a situation that where children who are sole applicants (children who are not part of their parents’ application) but are dependent entirely on the consequences of claims made by their parent or parents that such conduct should be treated as conduct of the children.
In the current case, plainly, the father’s conduct in Australia was not the conduct of either of the applicants. The father was not an applicant before the Tribunal and, in my view, his conduct in Australia (while obviously highly relevant to determining whether the applicants had a well-founded fear of persecution), being his conduct, and not conduct of the applicants, was not subject to consideration pursuant to s.91R(3). The Tribunal was therefore in error in engaging this section.
Generally, a misunderstanding or misapplication of relevant statutory provisions may give rise to jurisdictional error.
In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs; [2005] HCA 24; (2005) 79 ALJR 1009 at [72] the High Court said (per McHugh J) (“SAAP”):
“Jurisdictional error may arise where a decision-maker fails to discharge "imperative duties" or to observe "inviolable limitations or restraints" found in the Act[46]. To determine whether a decision under the Act involves a jurisdictional error, it is necessary to take two steps. First, it is necessary to determine the limitations and restraints found in the Act. Secondly, it is necessary to attempt, through statutory construction, to reconcile them with s 474 of the Act to ascertain whether failure to observe any particular procedural or other requirement in the Act constitutes an error which has resulted in the decision-maker failing to exercise or exceeding its jurisdiction.”
[Footnotes omitted]
In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 per McHugh, Gummow and Hayne JJ at [82] and, with reference to Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at [179] the High Court said:
“‘Jurisdictional error’ can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig , is not exhaustive … What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.”
In my view, the Tribunal misunderstood the application and relevance of s.91R(3) and asked itself the wrong question: namely whether the father’s conduct in Australia should or should not be disregarded for the purposes of the review.
Mr Markus submitted that one view of this issue may be that the Tribunal’s consideration of the applicants’ circumstances to s.91R(3), while an error, was not a “material error”, and in that sense did not affect the Tribunal’s exercise of its jurisdiction and is, therefore (on that view), not a jurisdictional error.
He further submitted that if that were wrong, then the Court should refuse relief in the exercise of its discretion, in circumstances where the error was immaterial to the decision.
In my view, the preferable view of what has occurred is that the Tribunal did ask itself the wrong question and misunderstood the limitations in the application of s.91R(3). The preferable view, therefore, with which I understand Mr Markus to ultimately agree in submissions, is that the Tribunal, having turned its mind to s.91R(3), in the circumstances of this case, did constitute an error going to the exercise of its jurisdiction.
The issue, however, is whether in the circumstances of this case the relief sought should be granted. The relief that the applicants seek is discretionary. It is well accepted that relief under s.75(v) of the Australian Constitution is like prerogative relief generally, and is discretionary: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26 at [33] and Minister for Immigration and Multicultural and Indigenous Affairs and Anor; Ex parte Applicants S134/2002 [2003] HCA 1.
I note also in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 the High Court confirmed that the constitutional writ of prohibition is discretionary, and held that prohibition and mandamus should issue in that case. At [52] and [54] Gaudron and Gummow JJ. said:
"[52] The recognition of an element of discretion attending the exercise of the jurisdiction conferred by s 75(v) with respect to prohibition involves "two separate questions". The first is whether the officers of the Commonwealth in question acted in want of or in excess of jurisdiction. The second is whether prohibition should not issue, having regard to the delay, waiver, acquiescence or other conduct of the prosecutor, in the course of the administrative proceeding or in other relevant circumstances."
"[54] No doubt the discretion with respect to all remedies in s 75(v) is not to be exercised lightly against the grant of a final remedy, particularly where the officers of the Commonwealth in question do not constitute a federal court and there is no avenue of appeal to this Court under s 73 of the Constitution. The discretion is to be exercised against the background of the animating principle described by Gaudron J in Enfield City Corporation v Development Assessment Commission."
Further, I note that in SAAP the majority found (essentially) against the Tribunal in circumstances where the Tribunal failed to comply with a mandatory provision contained in Division 4 of Part 7 of the Act. While the majority found the Tribunal’s failure in that case had been a breach of the obligation to accord procedural fairness, and that, therefore, there was jurisdictional error, all allowed for the possibility that the discretion may be exercised to withhold relief (but found that there was no such reason evident in the case before them to do so).
I note also what was said in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ at [29] on the issue of the exercise of discretion:
“The present is a case in which no useful result could ensue from the grant of the relief desired by the appellants. This is so because, even if the appellants be correct as to the proper operation of s 424A, they cannot overcome the Tribunal’s finding that their claims lacked the requisite Convention nexus …”
See also, for example, VQAN v Minister for Immigration and Multicultural and Indigensous Affairs [2003] FCA 1541 ("VQAN") Heerey J. at [23] stated:
“… [T]he court should proceed to reach a final conclusion one way or the other on the substantive merits and, if satisfied that a case of jurisdictional error is made out, then consider whether relief should be refused because of delay or other discretionary factors …”
In addition to the guidance provided by authorities referred to above, I am also guided by the approach taken by Gilmore J in SZLWI v Minister for Immigration and Citizenship [2008] FCA 1330, a matter also involving s.91R(3) (but with different circumstances to the ones presented in the current case). Nonetheless, I note the following (at [45]):
“[45] The first respondent submits that even if there has been a breach of s 91R(3), the Court should refuse relief in its discretion. There is merit in the submission. I am satisfied that the findings in respect to the appellant’s conduct in China would, independently of the findings as to his conduct in Australia, support the Tribunal’s conclusions on the question of persecution: R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389 at 400; Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 145-6; Re Refugee Review Tribunal; ex parte AALA [2000] FCA 57; (2000) 204 CLR 82 at [104], [131] and [211]; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162 at [80], [174] and [211]; see also SZBYR v Minister for Immigration and Citizenship [2007] FCA 26; (2007) 235 ALR 609 at [29].
[46] In those circumstances no purpose would be served by granting the relief sought. The appeal should be dismissed …”
In the current case, even if the Tribunal’s error could be said to be jurisdictional error it is, in my view, not appropriate that the discretion be exercised, and I will not do so.
In the current cases, while the Tribunal turned its mind to the application of s.91R(3), what clearly remains is that it did not elect to disregard the applicants’ father’s conduct in Australia in any aspect.
Ultimately, the Tribunal did have regard to the father’s conduct in Australia, and it did consider whether as a result of this conduct the two applicants would face harm if they were to go to Fiji. After consideration (see CB 190.8 to CB 192.8), the Tribunal found that they would not face such harm.
Given this, I cannot see that any: “useful result could ensue from the grant of the relief desired” or that any: “purpose would be served by granting the relief sought”, given the consideration and ultimate finding by the Tribunal. Plainly, the matter would have been different had the Tribunal chosen to disregard some aspect of the fathers’ conduct in Australia. The error, therefore, by the Tribunal, even if it is said to be jurisdictional error, was not one that denied the applicants procedural fairness, or involved any failure to consider any aspect of their claims, or had any impact or consequence on the outcome.

Conclusion

In the circumstances, therefore, both applications are refused and I will make orders accordingly.

Costs

At the hearing Mr Markus indicated that the Minister, if successful, would press costs. The applicants’ father indicated that he would not be present at the handing down of the judgement, given the difficulties that he had in travelling to Sydney.
If successful, the Minister indicated that he would seek an amount of $3,500, if successful, in respect of each application as costs, totalling, therefore, $7,000.
I gave the applicants’ father the opportunity to make submissions on this issue, explaining to him that if his children were to be successful, there would be no such issue for the Court to consider. But in the event of their being unsuccessful, then the Court would need to consider the Minister’s application for costs. The applicants’ father’s submissions were to the effect that he did not “have any money”.
In my view, it is appropriate that a costs order be made in each of the cases before the Court. There is nothing before the Court to argue against the making of such orders. With respect to the applicants’ father, a lack of funds is not, in my view, a sufficient reason not to make the orders.
As to the amounts, I am not satisfied that an amount of $3,500 for each case totalling $7,000 is reasonable in all the circumstances. I do note that in submissions the Minister’s solicitor/client costs were said to be in excess of $3,700 in each matter.
The relevant Schedule to the Rules of this Court dealing with matters of this type, provide for an amount up to $5,000 for the successful party, following a final hearing of a matter. While I take the view that I am not strictly bound by what is set out in the Schedule, it is, of course, a useful guide.
While it is true that the conduct and hearing of these matters involved two applications, it is also the case that the applications and documents submitted in support of the applications were identical in both cases. The Minister’s solicitors were required to deal with, in effect, one party, that is, the applicants’ father. For practical purpose purposes, in my view, on the issue of costs, it is more appropriate to view these two applications as, in effect, being one application involving two applicants with identical claims.
While it is the case that some additional documentation was generated as a result of the two separate applications (for example, two separate Court Books were prepared for each applicant), it is also the case that the Court Book prepared for the second named applicant made reference directly to documents reproduced in the Court Book of the first named applicant, and did not reproduce those documents (see, for example, the index to documents in SZNCU).
Further, it is the case that responses and written submissions were identical in both cases, and there was no necessity for two final hearings in these matters. Both were dealt with at one final hearing.
In all, therefore, I take the view that in considering what is reasonable in all the circumstances, and using the amount set out in the Schedule as a guide, that the total for the two cases should be, at its base, the amount of $5,000 (that is, the amount applicable to one case having reached the final hearing).
However, given that some additional work has been done, it is also appropriate that the total amount, in my view, be set at somewhere above $5,000. I note, in this regard, that at the first Court date in this matter, while there was an appearance for the Minister, there was no appearance by the applicants’ father, or the applicants, or anyone else on their behalf, which necessitated a second date for directions, at which the Minister’s solicitor attended.
Further, the Court Book for SZNCU did contain some additional documents to that found in the Court Book relevant to SZNCT. In my view, an additional total amount of $800 would appear to be reasonable to cover this “additional” work.
On that basis, therefore, I propose to make orders that the applicants’ litigation guardian pay the first respondent’s costs in the total amount of $5,800. But I will make orders as to the costs being $2,900 in respect of each applicant.

I certify that the preceding one hundred and twenty-four (124) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: C Darcy

Date: 20 March 2009