SZNLF v Minister for Immigration

Case •

[2009] FMCA 847

•

3 September 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNLF v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 847
MIGRATION – Review of decision of Refugee Review Tribunal –  consideration of Tribunal’s findings – Tribunal considered all claims and integers – Tribunal made findings open to it – whether Tribunal failed to consider applicant’s request for postponement of hearing – Tribunal properly considered applicant’s request – Tribunal entitled to refuse postponement – applicant seeking merits review – no jurisdictional error – application dismissed.
Migration Act 1958 (Cth), ss.91R, 425, 427, 429A
Migration Legislation Amendment Act (No.6) 2001 (Cth), s.3
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379
Applicant A & Anor v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1996) 190 CLR 225
Ibrahim v Minister for Immigration & Multicultural Affairs [2000] FCA 351
S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473
Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; 222 CLR 1
Minister for Immigration v Haji Ibrahim [2000] HCA 55; 204 CLR 1
Ibrahim v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 259; [1999] FCA 374
VQAD v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 481
Applicant S v Minister for Immigration & Multicultural Affairs [2004] HCA 25; (2004) 217 CLR 387
Minister for Immigration v Khawar [2002] HCA 14; 210 CLR 1
Craig v South Australia (1995) 184 CLR 163; (1995) 131 ALR 595
VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Minister for Immigration and Citizenship v SZKTI [2009] HCA 30
Minister for Immigration and Citizenship v Applicant 125 of 2003 [2007] FCAFC 162; (2007) 163 FCR 285
SZATV v Minister for Immigration and Citizenship and Another [2007] HCA 40; (2007) 233 CLR 18
NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Applicant: SZNLF
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 849 of 2009
Judgment of: Nicholls FM
Hearing date: 1 June 2009
Date of Last Submission: 15 June 2009
Delivered at: Sydney
Delivered on: 3 September 2009

REPRESENTATION

Appearing for the Applicant: In person
Solicitors for the Applicant: Nil
Counsel for the Respondents: Ms L Clegg
Solicitors for the Respondents: Sparke Helmore

ORDERS

  1. The application made on 9 April 2009 is dismissed.

  2. The applicant pay the first respondent’s costs set in the amount of $6,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 849 of 2009

SZNLF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application made under the Migration Act 1958 (Cth) (“the Act”) on 9 April 2009, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 23 February 2009, which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.

Background

  1. The applicant is a national of Fiji who arrived in Australia on 13 May 2008. She applied for a protection visa on 11 September 2008. (See Court Book “CB” – CB 1 to CB 35, with covering letter and annexures.)

  2. The applicant claimed to fear harm from her former “de facto partner”, who had subjected her to domestic violence. Further, she claimed to have witnessed criminal activity perpetrated against her employers in circumstances where the police had “not taken [the case] seriously”. She feared harm from these persons because she was a witness to what had happened.

The Delegate

  1. The delegate accepted the applicant’s claim that she faced persecution for the reason of being a member of a particular social group, namely: “‘women suffering domestic violence in Fiji from former de facto partners.’” The delegate found, however, that the applicant would have access to assistance and protection from the relevant authorities due to the “new ‘no-drop’ policy that has been instituted in Fiji” (CB 67.5). It was on this basis that the delegate found that the applicant did not have a genuine fear of harm for a Convention reason, and refused the application for a protection visa (CB 55 to CB 68).

  2. The delegate’s decision is said to be dated 25 November 2007. (See CB 68.) In context, however, given that the application was made in September 2008, and given the sequence of documents in the Court Book following this decision, it is clear that this was a mistaken reference to “25 November 2008”.

The Tribunal

  1. The respondent, who continued to be assisted by the same migration agent (Mr Khalsa), applied for review on 19 December 2008 (CB 69 to CB 74).

  2. The applicant appeared at a hearing before the Tribunal on 9 February 2009. Her representative was said to be “Present by Phone” (CB 99 – see further below). Also present were the applicant’s two witnesses, Mr and Mrs Wilson, who were her employers in Fiji and who appeared to have continued to employ the applicant in Australia.

  3. By letter dated 15 January 2009 the Tribunal invited the applicant to comment on information that it said would be (subject to any comment or response made by the applicant) the reason, or part of the reason, for affirming the decision under review (CB 77 to CB 78). The applicant ultimately responded to this letter. (The response appears at CB 107 to CB 115.)

  4. The Tribunal affirmed the delegate’s decision on 24 February 2009 (CB 163 to CB 182). (The basis of this decision is the subject of more detailed examination below.)

Application to the Court

  1. The “grounds” of the application before the Court are said to be:

    “1. The Tribunal erred by not delaying the hearing so that the representative could attend.

    2. The Tribunal erred by not calling off the hearing the Tribunal passed out during the hearing.

    3. The Tribunal erred when a staff [member] made unsupported claims outside the hearing room that the representative was having the applicant lie.

    4. The Tribunal erred by not advising the applicant that the Tribunal may not accept that the ex-partner of the applicant had no political connection through his cousin.

    5. The Tribunal erred by not considering the connection at Nandi Airport would include Nausori.

    6. The Tribunal erred by not considering the lack of employment outside Nandi & Suva.

    7. The Tribunal erred by not considering the ease of locating the applicant outside Nandi & Suva when the Tribunal considered the applicant could be located in Nandi & Suva.

    8. The Tribunal failed to consider the fact that there is no criminal offence for domestic violence in Fiji.

    9. The Tribunal incorrectly considered a ‘no drop’ policy which applies to the abuse of children as protecting the applicant from domestic violence.

    10. The Tribunal erred by considering the police would give the applicant protection from domestic violence when there is no law against domestic violence.”

    [Errors in the original.]

Hearing before the Court

  1. At the hearing before the Court the applicant appeared in person. Ms L Clegg of Counsel appeared for the first respondent.

  2. The applicant sought to hand up a bundle of documents which she referred to as her “written submissions”.  These consist of:

    1)A handwritten letter addressed to the Court. This submission appears to address the issue of the reasonableness of relocation, with reference to the Tribunal’s finding that the applicant could reasonably relocate to an area outside Nadi and Suva in Fiji. On its face, this submission appears to seek to re-agitate the issue of the reasonableness of relocation (but see further below). Various “downloaded” materials from the Internet are attached to the submission. This material dealt with the living conditions and unemployment situation in Fiji. None of this material assists the applicant in the task facing the Court. Plainly, this Court is not able to review the merits of the Tribunal’s findings (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).

    2)The second written submission seeks to take issue with the Tribunal’s finding in relation to the applicant’s claim to have been a victim of domestic violence and the availability of protection from the Fijian authorities. Again, the attached material from the Internet invites the Court to substitute its own findings for those made by the Tribunal.

    3)The third submission takes issue with the Tribunal’s finding as to the ease with which the applicant can pass through airports in Fiji and attaches a document “downloaded” from the Internet, about airports in Fiji. This appears to be a promotional document. (See further below.)

    4)The fourth bundle of documents is comprised of four personal references, which attest to the applicant’s character and why she should be granted residence in Australia. Plainly, this Court has no power to grant the applicant a visa, and these documents are not relevant to the issue before the Court. Namely, whether the Tribunal’s decision is affected by jurisdictional error.

The Tribunal’s Decision

  1. The Tribunal’s decision record requires a far higher degree of attention than normally is the case to enable some understanding as to how the Tribunal has reasoned its way to its conclusion.

  2. Ms Clegg submitted that “in essence” the Tribunal accepted aspects of what was described as the applicant’s core claim, that is, that she had been the victim of domestic violence by her former de facto partner, but that it ultimately rejected this claim on the basis of independent country information before it to the effect that she would be able to access state protection from the relevant Fijian authorities. (See [72] to [75] at CB 179 to CB 180.)

  3. In relation to the applicant’s claim that she would not obtain state protection because of her former partner’s political contacts, the Tribunal found, in context, and based on inconsistencies in her evidence about those contacts, that this would not affect her ability to obtain protection. Further, in relation to any claim that protection was denied, the Tribunal found that, in any event, even accepting that the applicant could not obtain protection, the harm would not be for a Convention reason.

  4. It was submitted that the Tribunal also addressed what was described as a “different claim” by the applicant. That is, that she would be harmed by persons who were described as “others”, because of her knowledge and observations of some criminal activity that had occurred in connection with Mr and Mrs Wilson. (See [76] to [79] at CB 180 to CB 181.)

  5. Ms Clegg’s submission was that the Tribunal did not “really” accept that the applicant had a proper basis for a fear of harm from her knowledge about this criminal activity in connection with the Wilsons, but that it found, again, that there was no Convention nexus in relation to this claim. Further, that any claim feared by the applicant in this regard did not involve systematic conduct as required by s.91R(1)(c) of the Act. (See [78] at CB 181.)

  6. Ms Clegg submitted that the third aspect of the applicant’s claim, which could be described as a “very broad claim”, was that the applicant would be at risk from the Fijian authorities because of her knowledge about general corruption within Fiji. (See [80] to [82] at CB 181.) The Tribunal did not accept this claim (including the evidence given by the applicant’s witnesses).

  7. Finally, Ms Clegg relevantly submitted that the Tribunal found that the applicant could reasonably relocate within Fiji to an area away from her former partner. (See [84] at CB 182.) Ms Clegg’s submission was that this relocation finding stands as a separate and independent basis from the first two aspects of the claims made by the applicant, but that it could not be fairly characterised as standing insulated from the third claim made by the applicant, given that that claim dealt with her broader knowledge of political corruption over the whole country.

  8. I found Ms Clegg’s submissions in relation to how the Minister says the Tribunal decision should be read to be useful. A plain reading of the Tribunal’s reasoning, and analysis, in my view, does give rise, in part, to questions about what actual findings of fact were made by the Tribunal, and in other part, whether they were made absent doubt, necessitating consideration of alternatives.

The Tribunal decision

  1. Paragraphs [77], [78], and [79] of the Tribunal’s decision record (CB 180) are in the following terms:

    “77. The Tribunal accepts, having regard to extensive documentation presented by Mr and Ms Wilson, that they attempted to establish a business in Fiji. The Tribunal accepts on the basis of such documents that the applicant had at some time been one of the shareholders of the company, as was her partner. The Tribunal also accepts that the company had been removed from the Wilsons’ control. The Tribunal also accepts that the applicant is aware of the stealing of the Wilsons’ property and other matters relating to the Wilsons’ business affairs and personal property. However, the Tribunal does not accept that such awareness gives rise to a real chance of persecution for a Convention reason.

    78. The Tribunal is of the view that if the applicant’s former partner or any other person wished to harm her as a result of such awareness, the reason for their intention would be their desire to hide their criminal activities. Whether or not the applicant’s former partner or others who stole from the Wilsons have any connections with the military or the authorities, and whatever their political opinions or affiliations are, there is no suggestion that such connections, or the applicant’s own political opinion (whether actual or imputed) would be the reason for the harm. Rather, the applicant claims that she would be harmed because of her knowledge of such criminal activities. No Convention basis would be an essential and significant reason for that desire. The reason for the harm the applicant fears is her awareness of criminal activities. Thus, the Tribunal does not accept that the applicant’s former partner or any other person would wish to harm the applicant because of her knowledge of any criminal activity that they had engaged in and, in any event, the Tribunal does not accept that any harm feared by the applicant as a result of such activity would be essentially and significantly for a Convention reason.

    79. Further, and if one may find a particular social group arising from the applicant’s claims relating to the Wilsons’ affair, the Tribunal is of the view that any claim feared by the applicant does not involve systematic conduct as required by s.91R(1)(c).”

  2. In my view, there is some difficulty in understanding what findings the Tribunal has made in relation to some of the applicant’s factual claims. That is, in relation to her claim to fear harm from her former partner and from the “others”, who were said to have stolen from Mr and Mrs Wilson, and their connections with the Fijian authorities.

  3. For example, it is not clear in the first sentence of [78] whether the Tribunal is postulating a possible source of harm as being the applicant’s former partner or “others”, because of her awareness of matters relating to Mr and Mrs Wilson’s affairs and property.

  4. I am mindful of the High Court’s direction in Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (with reference to Collector of Customs v Pressure Tankers Pty Ltd and  Pozzolanic Enterprises Pty Ltd [1993] FCA 322; 43 FCR 280) that:

    “…the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed …”

  5. However, in context, the use by the Tribunal of the word “if” creates some doubt as to whether the Tribunal is engaging in speculation or whether it is making a clear finding. It is unclear whether the Tribunal makes a finding that such persons would be motivated to harm the applicant and, if so, that the reason for their intention would be their desire to hide their criminal activities.

  6. Yet later in that paragraph, the Tribunal states that it does not accept that the applicant’s former partner or any “other” person would wish to harm the applicant because of her knowledge of any criminal activity in which they had engaged. However, in contradiction, the Tribunal then goes on to state that “in any event”, it did not accept that any harm feared by the applicant would be essentially, and significantly, for a Convention reason.

  7. As the Tribunal made a finding that no person (including her former de facto partner) would wish to harm the applicant because of any criminal activity what, therefore, is the harm subsequently said to be feared by the applicant, which would not “be essentially and significantly for a Convention reason”?

  8. Paragraph [79] presents a similar problem. It is not clear what the Tribunal meant by: “… if one may find a particular social group arising from the applicant’s claims relating to the Wilsons’ affair …” Did the Tribunal find that such a particular social group existed, or not?

  9. This must be seen in the light of what the Tribunal said at the end of [74] and [75]. At [74] the Tribunal appears to address the applicant’s claim that her former partner had various political connections and that her complaint of domestic violence would not be dealt with by the relevant Fijian authorities because of these political connections. The Tribunal said that it rejected these claims because of inconsistencies in the applicant’s evidence. It ultimately concluded:

    “Thus, the Tribunal does not accept that the applicant’s ex-partner has any political connections which would prevent, or affect, any investigation by the police.”

  10. In the very next paragraph, however, the Tribunal goes on to say:

    “... even if the Tribunal accepted the applicant’s claim that protection would be denied to her, the applicant claims that protection would be denied because of her partner’s connections with the authorities. Therefore, protection would be denied because of police corruption and not for a Convention reason …”

  11. If the Tribunal did not accept that the applicant’s former partner had any political connections which would lead to a denial of assistance by the police, then why did the Tribunal feel compelled to proceed to consider an alternative consideration? A consideration which, ultimately, did not assist the applicant because the Tribunal found that protection would be denied because of police corruption, and not for a Convention reason.

  12. It is open to infer that the Tribunal’s constant qualification of its findings, with reference to some possibly hypothetical alternative as denoted by the use of: “even if”, or “that is”, or “and if”, denotes some doubts about the strength of its findings. This is reinforced by what appears at the beginning of paragraph [83]: “Even if the Tribunal is wrong in its findings ...”, where the Tribunal goes on to reconsider the issue of relocation.

  13. Before the Court, the applicant presented as a very sympathetic character. The Tribunal did accept that the applicant had suffered domestic violence in Fiji. (See [71] at CB 179.) It is therefore open to say that the Tribunal’s consideration of alternatives was a reflection of a desire to reveal to the applicant that it sought to consider every possible avenue to see if she could satisfy the definition of “refugee”.

  1. However, with great respect to the Tribunal, this leaves a decision record which, in its presentation of reasoning and analysis, is clumsy.

The Minister’s submissions

  1. Ultimately, however, I am persuaded by submissions by Ms Clegg that the Tribunal’s decision should not be seen to be incoherent or defying understanding. Rather, it is to be seen as having dealt with the claims in a number of different ways, without clear differentiation as to which aspect of the claims the Tribunal was seeking to address at any one particular time.

  2. Further, I also agree with Ms Clegg’s characterisation of the applicant’s claims as they were presented to the Tribunal. What follows in subsequent paragraphs in the latter part of its “Findings and Reasons” must be read in light of what the Tribunal says it plainly accepted in relation to the applicant’s claims.

  3. The Tribunal clearly accepted that the applicant had been a victim of domestic violence perpetrated by her former de facto partner in the past. It accepted that if the applicant were to return to Fiji and to reside with her former partner, she may again be subjected to domestic violence (at [71]).

  4. The Tribunal found, however, that the applicant would be able to receive effective protection from the authorities in these circumstances (at [73]). Further, in relation to this claim, the Tribunal found that the applicant could reasonably relocate away from Nadi and Suva, the areas in Fiji where her former partner resides, and that she could reasonably do so (at [83] and [84]).

  5. In finding that effective protection would be available to the applicant, the Tribunal also considered her former partner’s claim that he would be protected by the police because of his various familial and political connections. The Tribunal rejected this aspect of the applicant’s claims because it found it to be inconsistent with other evidence given by the applicant. Further, while accepting that there may have been some subjective belief that he would be protected by police, it did not accept it on any objective basis (at [74]).

  6. When read in context, therefore, the Tribunal’s consideration (at [75]) of what it said was an acceptance of the claim that protection would be denied to her (a claim that, it must be remembered, the Tribunal rejected for the reasons given already), is to be seen as a finding that, even in those circumstances (though such circumstances not being accepted by the Tribunal), such protection would not be denied for any Convention reason.

  7. This appears to address a general claim made by the applicant (also supported by witnesses) about a fear of persecution because of general corruption and lawlessness in Fiji. The Tribunal appears to return to this integer of the applicant’s claims at paragraph [80]. When read fairly, what follows (at [76], [77], and [78]) appears to properly address yet another integer of the applicant’s claims, namely, the claim to fear harm from her ex-partner and “others” because of her knowledge acquired from criminal activities in connection with, and arising from, the employment by the Wilson family. When read fairly, therefore, [76] appears to be directed to the Tribunal’s separation of the strands of the different integers of the applicant’s claims.

  8. The Tribunal accepted the factual basis for the difficulties faced by Mr and Mrs Wilson. But it did not accept that the applicant’s awareness of these difficulties gave rise to Convention related persecution (at [77]). When read fairly, therefore, in context, what appears at the first sentence of [78] needs to be read with what preceded it at [77]. That is, that her awareness of the Wilsons’ difficulties did not provide a basis for Convention related persecution because, to the extent that the applicant claimed that a fear of such harm emanated from her former partner or any “other” person, their motivation for harming her would be to conceal their criminal activities, not for any Convention reason.

  9. What follows in the second sentence (at [78]: “Whether or not …”) should be read fairly. The Tribunal’s reasoning is to be understood as saying that the claim that those who stole from the Wilsons and the applicant’s former partner, did not give rise to a Convention related fear of harm, notwithstanding their connections with the authorities and their political opinions.

  10. The first part of the last sentence of that paragraph (“Thus, the Tribunal does not accept that the applicant’s former partner or any other person would wish to harm the applicant because of her knowledge of any criminal activity that they had engaged in …”) does appear to contradict what is set out at the beginning of [78] (“The Tribunal is of the view that if the applicant’s former partner or any other person wished to harm her as a result of such awareness …”).

  11. In my view, on a fair reading of this paragraph, the Tribunal considered that whether or not the applicant’s former partner, or any other person, was motivated to harm the applicant because of her knowledge of any criminal activity that they had engaged in, any such harm feared by the applicant would not be for a Convention reason.

  12. What follows (at [79]) appears to address whether there existed a particular social group said to arise from the applicant’s claims relating to the Wilsons. That is, whether her awareness of the criminal activities arising from the Wilson’s affairs could give rise to a particular social group which would require the Tribunal to consider whether the applicant was a member of that particular social group.

  13. It is not clear whether the Tribunal’s reference in this respect (“… if one may find a particular social group …”) is a finding that the applicant’s circumstances do give rise to a particular social group, such that the Tribunal was required to consider those circumstances. Ms Clegg suggested in submissions that it may have been that the Tribunal was “importing” familiar phrases from what had been said in the delegate’s decision. (The delegate accepted that there was a particular social group.)

  14. Further, the reference to the view that any claim feared by the applicant did not involve systematic conduct as required by s.91R(1)(c) is difficult to reconcile, when viewed in light of what appears to have been found by the Tribunal in the preceding paragraph. If [78] is to be read as being a finding by the Tribunal that the claim to fear harm arising from the Wilsons’ affairs (by both the applicant’s former de facto partner and from “others”) did not have any Convention nexus, then a subsequent finding that any such harm feared by the applicant did not involve systematic conduct as required by s.91R(1)(c), does not make sense.

  15. The difficulty that I have with this suggested explanation of what the Tribunal had in mind at this point of its reasoning is that if the applicant’s claims put her into the membership of a particular social group, which was said to be “‘women suffering domestic violence in Fiji from former de facto partners’”, then this had nothing to do with the claim to fear harm arising from the Wilsons’ affairs, even to the extent that this harm may have been said, in part, to emanate from the former de facto partner.

Consideration

  1. It is interesting to note that while the concept of “persecution” sits at the heart of the definition of “refugee” as set out in Article 1A(2) of the United Nations Convention Relating to the Status of Refugees, the Convention itself does not provide a definition for this term. This is acknowledged in the “Handbook on Procedures and Criteria for Determining Refugee Status” issued by the Office of the United Nations High Commissioner for Refugees (see re-edited version made at Geneva, January 1992) at pages 14 to 15, at [51]:

    “There is no universally accepted definition of ‘persecution’ and various attempts to formulate such a definition have met with little success. From Article 33 of the 1951 Convention, it may be inferred that a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution. Other serious violations of human rights – for the same reasons – would also constitute persecution.”

  2. For Australian purposes, direction may be taken as to the meaning of the term “persecution” from a large number of cases before the High Court. (For example, Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379, A v Minister for Immigration & Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225, Ibrahim v Minister for Immigration & Multicultural Affairs [2000] FCA 351, S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473, Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; 222 CLR 1.)

  3. Even further, the term “persecution” as found in Article 1A(2) is qualified by s.91R of the Act. The import of s.91R(1) is that, for the purposes of the Act (and the Migration Regulations 1994 (Cth)), Article 1A(2) does not apply in relation to “persecution” for one or more of the Convention reasons, unless sub-sections (a), (b), and (c) of that section are satisfied. That is:

    “(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

    (b)  the persecution involves serious harm to the person; and

    (c) the persecution involves systematic and discriminatory conduct.”

  4. At [79] the Tribunal states:

    “Further, and if one may find a particular social group arising from the applicant’s claims relating to the Wilsons’ affair, the Tribunal is of the view that any claim feared by the applicant does not involve systematic contact as required by s.91R(1)(c).”

  5. In Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 (“Chan”), McHugh J explained (at [36]) that:

    “… The notion of persecution involves selective harassment … A single act of oppression may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, she is "being persecuted" for the purposes of the Convention …”

  6. In Minister for Immigration v Haji Ibrahim [2000] HCA 55; 204 CLR 1 (“Haji Ibrahim”) his Honour further explained the use of the expression “systematic conduct” at [99]:

    “It is an error to suggest that the use of the expression ‘systematic conduct’ in either Murugasu or Chan was intended to require, as a matter of law, that an applicant had to fear organised or methodical conduct, akin to the atrocities committed by the Nazis in the Second World War. Selective harassment, which discriminates against a person for a Convention reason, is inherent in the notion of persecution. Unsystematic or random acts are non-selective. It is therefore not a prerequisite to obtaining refugee status that a person fears being persecuted on a number of occasions or ‘must show a series of coordinated acts directed at him or her which can be said to be not isolated but systematic.’ …”

  7. In Ibrahim v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 259; [1999] FCA 374, the Full Federal Court (per O’Connor, Tamberlin, and Mansfield JJ) noted that the word “systematic” can be used in the following ways (at [25]):

    “… One sense is that of deliberate or premeditated or intended conduct, of acting or carrying out actions with a premeditated intent. The other sense is that of habitual behaviour according to a system, regular or methodical. Where those words have been used to indicate the former sense, there will be no error of law. Where those words have been used to indicate a requirement that it is necessary to show a series of incidents or a course of conduct over time involving persecution, so that persecution will not be shown to exist if there is only an isolated incident, it will demonstrate an error of law on the part of the Tribunal …”

  8. It is the case that both Chan and Haji Ibrahim predate the introduction of s.91R to the Act. (See subdivision AL, of which s.91R is a part, which became operational on 1 October 2001. See s.3 and Schedule 1 to Migration Legislation Amendment Act (No. 6) 2001 (Cth), Act No. 131 of 2001.)

  9. What I draw from these authorities, is that the test set out in s.91R(1)(c) does not affect the proposition that a single act may be sufficient. That is, so long as it is part of a course of “systematic conduct” in the sense that (given what is set out above) it is non-random. I note further in this regard what was said per Scarlett FM in VQAD v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 481 at [32] that Haji Ibrahim remains law.

  10. In light of the above, therefore, the issue is, what did the Tribunal intend to do at paragraph [79] with the reference to: “… any claim feared by the applicant does not involve systematic conduct as required by s.91R(1)(c)”?

  11. If the term “systematic” to which the single act (or even acts) relate implies some element of not being random (even though not necessarily needing to be methodical, or even organised), then in what sense can it be fairly said that the Tribunal’s reference to “systematic conduct” applied in the current case?

  12. On its face, it could be that the Tribunal intended to say that the claim of fear by the applicant in relation to, and arising out of, the “Wilsons’ affair”, as it is said to emanate from the applicant’s former de facto partner or “any other” person, did not involve systematic conduct on their part as required by s.91R(1)(c).

  13. However, whichever of the two senses of the use of the word “systematic” (as explained in Haji Ibrahim) is relevant to what the Tribunal said at [79], the issue is further complicated by the Tribunal’s reference at that paragraph to: “a particular social group arising from the applicant’s claims relating to the Wilsons’ affair.”

  14. In relation to “a particular social group”, Applicant A & Anor v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1996) 190 CLR 225 (“Applicant A”) remains the leading case. In Applicant S v Minister for Immigration & Multicultural Affairs [2004] HCA 25; (2004) 217 CLR 387 at [36], Gleeson CJ, Gummow and Kirby JJ reviewed what was said in Applicant A and said:

    “…the determination of whether a group falls within the definition of ‘particular social group’ in Art 1A(2) of the Convention can be summarised as follows . 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’. As this Court has repeatedly emphasised, identifying accurately the ‘particular social group’ alleged is vital for the accurate application of the applicable law to the case in hand.”

    [Citations omitted.]

  15. What, then, is the particular social group arising from the applicant’s claims relating to the Wilsons’ affairs, to which the Tribunal made reference?

  16. Given that the paragraph in which this reference appears ([78]) is placed in the sequence of the Tribunal’s analysis and reasoning, it cannot be a reference to the particular social group found by the delegate. That is: “‘women suffering domestic violence in Fiji from former de facto partners.’” The Tribunal previously dealt with the applicant’s claim to fear harm on the basis of domestic violence from her former partner. It accepted that she had been the victim of domestic violence in the past (at [71]), but found that she would be able to receive effective protection from the relevant authorities (at [73]).

  17. By the time the Tribunal makes the reference to: “particular social group” at [79], its analysis has clearly moved on to consider the applicant’s claims as they are said to arise from her knowledge of the Wilsons’ affairs. The applicant’s claims, in part, are that she feared harm because of the knowledge that she acquired as a result of her employment with the Wilsons, relating to their business affairs and personal property.

  18. At the end of [77], the Tribunal says that it does not accept that such awareness gives rise to a real chance of persecution for a Convention reason. What follows can only be seen as an explanation of that finding. The Tribunal expresses the view (at [78]) that: “… the reason for their intention would be their desire to hide their criminal activities”, noting that there is no suggestion, whatever their political opinion or affiliation, that the applicant’s former partner, or any other person, or persons connections or political opinion, or even the applicant’s own political opinion, would be the reason for the harm. The Tribunal notes the applicant’s claims that she would be harmed because of the knowledge of such criminal activities. It then proceeds to state that it does not accept that any such harm “… feared by the applicant as a result of such activity would be essentially and significantly for a Convention reason.”

  19. Having said that it did not accept that the applicant’s former partner, or any other person, would wish to harm the applicant because of her knowledge of their criminal activity, why then does the Tribunal proceed to say that, in any event, any such harm feared by the applicant would not be essentially, and significantly, for a Convention reason? Implicit in that last part of [78], and the reference in [79] (“particular social group”), is that the Tribunal saw that the applicant’s circumstances gave rise to the need to consider a “particular social group arising from the applicant’s claims relating to the Wilsons’ affair”.

  20. What, therefore, is this particular social group that is said to arise from the claims relating to the Wilsons’ affairs? On the material before me, I cannot see that the applicant’s claims gave rise to any such particular social group.

  21. In relation to the Wilsons’ affairs, and the applicant’s knowledge of these affairs, which in context appears to be what the Tribunal is seeking to address additionally at [79], there is nothing in the material before the Court to show that there is any other person claiming, or who would claim, to fear harm from the applicant’s former de facto spouse or the “others”, because of knowledge of criminal activities arising out of the Wilsons’ affairs.

  22. Simply on the applicant’s own evidence given at the Tribunal hearing, and in her statements, there is nothing to suggest that there was anyone else who worked or lived with the Wilsons, who would have observed the criminal activities of the former de facto partner or the “others”. Nor is there anyone else who could be said to have known of these activities, let alone that the former de facto partner or the “others” would wish to harm any such person for this reason. From the material before the Court, and in particular, the applicant’s own evidence, the only other people who would have known of these activities were the Wilsons, and a representative from the Australian “embassy” in Fiji. (See [44] at CB 173.)

  23. There was nothing before the Tribunal to suggest that the Wilsons seek to return to Fiji, such that it could be said that they would form part of a possible social group. That is, persons who knew of the criminal activities of the former de facto partner and the “others” and feared harm for this reason. Nor is there any suggestion that the Australian “embassy” representative would hold any such fears.

Consideration: Resolution

  1. On a reading of the material before the Court, the applicant’s claims before the Tribunal (and those made on her behalf through her witnesses) can be seen to contain four claims to fear harm from three different sources.

  1. I am satisfied that on a fair reading the following can be said to have been found by the Tribunal in relation to each claim.

  2. First, in relation to the claim to fear harm from her former de facto partner because of domestic violence, in circumstances where the police would not provide protection, the Tribunal accepted that the applicant had been subjected to domestic violence in the past, but found that effective protection would be available to her. In any event, it would be reasonable for the applicant to relocate to another part of Fiji, away from the two areas that were frequented by the former de facto partner. (See [71] to [73] and [83]. See also [74] and [75], which deal with aspects of state protection available to the applicant.)

  3. The finding (at [71] to [73]) that effective protection is available to the applicant from the authorities in circumstances of domestic violence means that this matter can be distinguished from what was found in Minister for Immigration v Khawar [2002] HCA 14; 210 CLR 1. That case involved an applicant who had suffered domestic violence at the hands of her husband and his family, in circumstances where the authorities not only would not provide protection, but tolerated and condoned such activity. In the current case, as was also found by the delegate, adequate protection was available to the applicant on the same basis as it would be to any woman in Fiji who may suffer such violence.

  4. Second, the applicant also claimed to fear harm from her former de facto partner, because he had stolen from the Wilson family. Her observation of this, arising from her employment connection and relationship with the Wilson family, meant that she knew of this, and feared harm from her former partner because of this. The Tribunal ultimately found that such knowledge, or awareness, did not give rise to a real chance of persecution for a Convention reason, and that the reason for any desire to harm the applicant would be to “hide” his “criminal activities”. (See [76] to [78].) Although at [78] the Tribunal appears to make two relevant findings. One, that it rejected the factual basis of the applicant’s claims to fear harm from her former de facto partner for this reason, but that in the alternative, any such harm feared did not reveal a Convention basis that would be “an essential and significant reason for that desire”.

  5. Third, the applicant claimed to fear harm from “other” persons who had stolen from the Wilsons, and that her knowledge of this would motivate those “others” to harm her. The Tribunal found that such an awareness in relation to these “others” did not give rise to a real chance of persecution for a Convention reason (at [77]), because the reason for any such intention would be their desire to hide their criminal activities (at [78]). And that there was no Convention basis that would be an essential and significant reason for that desire (at [78]). But in the alternative, it did not accept that these other persons would wish to harm the applicant because of the knowledge of any criminal activity that they had engaged in (at [78]).

  6. Fourth, to the extent that the applicant’s circumstances gave rise to a claim that the applicant’s knowledge about the general corruption in Fiji would place her at risk of serious harm from relevant authorities, the Tribunal found, with reference to relevant country information before it, that there was no evidence that such people are persecuted because of any perceived knowledge of corruption (at [80]).

  7. The Tribunal also considered whether evidence given by Mr Wilson on the applicant’s behalf, that there had been discussion of a “political plot relating to the current government” in his house, and some references to the (Fijian) Defence Minister, may give rise to some concern of harm to the applicant. The Tribunal found, however, that “references to these claims were vague and somewhat confused.” In these circumstances it did not accept these claims (at [81]).

  8. What remains is the reference to social group at paragraph [79]. This does not appear to have any basis in the applicant’s circumstances as presented to the Tribunal. It is difficult to conceive of what “particular social group” the Tribunal saw as “arising from the applicant’s claims relating to the Wilsons’ affair.”

  9. If the Tribunal did not accept any claim that there had been discussion about a political plot relating to the then Fijian government, which was discussed in the Wilsons’ home, which involved the then Defence Minister, then what is left of the Wilsons’ affairs is the applicant’s awareness of the criminal activities of her former de facto partner and the “others” in relation to the stealing of the Wilsons’ property and other matters relating to the Wilsons’ business affairs and personal property. In these circumstances, it would be strange, not to say impossible, to conceive of a “particular social group” consisting only of the applicant.

  10. In relation to paragraph [79], I did consider whether the Tribunal was referring to any possible particular social group, being persons in Fiji who had knowledge about general corruption. But even on a fair reading, what appears at [79] (the use of the word, “Further” at the beginning of that paragraph, and the ultimate reference to “systematic contact as required by s.91R(1)(c)”) appears to relate [79] to what precedes it at [78]. In these circumstances, it remains a mystery as to what the Tribunal was seeking to do at [79].

  11. Notwithstanding this, however, while on its face the taking into account of an irrelevant consideration may be seen as jurisdictional error (in this regard, see Craig v South Australia (1995) 184 CLR 163; (1995) 131 ALR 595 at 602 per Brennan, Deane, Toohey, Gaudron and McHugh JJ), in the circumstances of the current case, the Tribunal’s findings in relation to the applicant’s claims, that is, its other findings in relation to the applicant's claims, are tolerably clear and separate to what was addressed at [79], such as to make what he set out there, even if it be in error, not an error affecting the exercise of the Tribunal’s jurisdiction in dealing with the applicant’s claims.

  12. I am satisfied that the Tribunal dealt with each of the applicant’s claims (as set out at [75] to [80] above) and all aspects of these claims. It made findings which were open to it on what was before it, and for which it gave reasons.

Further issue: Request for Postponement of Hearing

  1. Another issue of concern that arose during the hearing before the Court, arises from the circumstances of the Tribunal’s invitation to the applicant to attend a hearing, and a subsequent reference in another letter to an agreement to reschedule the hearing

  2. The applicant applied for review on 19 December 2008 (CB 70). She appointed a registered migration agent to represent her, and the agent was appointed as the authorised recipient for the purposes of correspondence on 19 December 2008 (CB 74). On 9 January 2009, the Tribunal wrote to the migration agent inviting the applicant to a hearing before it, said to be scheduled for “9:00 am” on “9 February 2009” (CB 75). On 15 January 2009, the Tribunal again wrote to the representative, inviting the applicant’s comment on certain information which it said, subject to the applicant’s comments, would be the reason, or part of the reason, for affirming the decision under review (CB 77).

  3. On 20 January 2009, the agent sent by facsimile transmission (CB 85) his letter (CB 86) and a “Response to Hearing Invitation” form (CB 87). The applicant indicated in this response that she wished to attend the hearing and nominated Mr and Mrs Wilson as witnesses.

  4. On 6 February 2009, the agent sent a letter by facsimile (CB 89), seeking a “delay” in relation to the hearing, and the invitation to comment (CB 90 to CB 91). The agent claimed to have a medical problem (with his left eye) for which he provided a medical certificate in support (CB 92). Given his difficulties in reading and writing, he sought a postponement of the hearing date, and the time within which to respond to the invitation to comment on information.

  5. The Tribunal responded to this request by letter dated 6 February 2009 (CB 95 to CB 96). The Tribunal addressed the request for a “Rescheduled Hearing” in the following terms:

    “On 9 January 2009 we sent a letter inviting you to attend a hearing at the Tribunal on 9 February 2009 at 9:00am to give evidence and present arguments relating to the issues arising in your case. On 6 February 2009 the Tribunal received a request that the hearing be rescheduled. The Presiding Member has agreed to the request and the hearing has been rescheduled.

    The new hearing date and time are set out below. Please note that all other hearing details are unchanged

    Date: 9 February 2009

    Time: 8:30am (NSW Time) …”

  6. Plainly, in spite of what is stated on the face of the letter, there was no “new hearing date”. The date remained the same. The only change was in the time, brought forward from 9am to 8.30am.

  7. By another letter dated the same day (9 February 2009), the Tribunal sent to the authorised recipient a response to the request for an extension of time to submit comments (CB 97 to CB 98). That letter told the applicant that the Tribunal had considered the request, but that it had decided not to grant an extension of time.

  8. The applicant appeared in person at the hearing before the Tribunal and gave evidence, as did the two witnesses. Her representative was said to be “Present by Phone” (CB 99). The hearing is said to have commenced at “8.52am” and to have ended at “10.43AM” (CB 99 to CB 100).

  9. The applicant’s response to the Tribunal’s invitation to comment on certain information was sent to the Tribunal by facsimile on 10 February 2009 (within the time provided by the Tribunal) (CB 107). The applicant’s submission is reproduced at CB 108 to CB 115.

  10. In her letter in response, the applicant requested copies of documents relating to information about the Fijian “no-drop” policy. (This was a police policy in dealing with certain offences.) The Tribunal subsequently provided these documents by way of its letter of 11 February 2009 (CB 118).

  11. By facsimile transmission dated 11 February 2009, the applicant’s advisor sent further material to the Tribunal, being a statutory declaration by the applicant, and a further response to the invitation to comment on certain information (CB 121 to CB 153).

  12. By letter dated 13 February 2009, received by the Tribunal on 18 February 2009, the applicant wrote to the Tribunal advising that she, amongst other things, “wish[ed] to dismiss him, as [her] Migration Agent” (CB 154 to CB 155). By facsimile transmission dated the same day, the applicant’s agent sent further information to the Tribunal (CB 156 to CB 161, including annexures).

  13. The Tribunal made its decision on 23 February 2009. The applicant was notified of this decision by letter dated 24 February 2009 (CB 162). By letter dated 25 February 2009, and which appears to have been sent by the applicant’s agent on 5 March 2009 to the Tribunal, the applicant advised, amongst other things, that she “still would like [her] migration Agent …” (CB 183). The Court Book contains documents relevant to the issue of the removal and subsequent reinstatement of the agent at CB 185 to CB 190, all of which appear to have occurred after the making of the Tribunal’s decision – at a time when the Tribunal had clearly completed its task in conducting the review.

  14. During the course of the hearing before the Court I raised with Ms Clegg my concerns that there appeared to have been a number of unexplained matters, or matters not fully explained, or not understandable, in light of the documentation provided by the first respondent in the Court Book.

  15. Of particular concern was the Tribunal’s letter (reproduced at CB 95) which, notwithstanding that it is stated that it agreed to the request for a rescheduled hearing date, and made reference to a new hearing date, in fact provided exactly the same hearing date as had been previously advised.

  16. I granted leave for the Minister to file any additional documentation that might explain what appears on the face of this document, and to further explain the sequence of events relating to the invitation for hearing and the invitation to comment on information. Following the hearing, the Minister filed a bundle of relevant documents (the Supplementary Court Book – “SCB”). Following the hearing, written submissions were also filed (with leave) by both the first respondent and the applicant.

  17. The documents in the Supplementary Court Book are a series of case notes reporting conversations between a Tribunal officer and the applicant’s representative. All of these report on events on 6 February 2009:

    1)The case note dated 6 February 2009 at 1.29pm reports on a telephone conversation initiated by the representative, making reference to a request for an extension of time of the hearing, which he said he had put in the “same letter which requested an extension to respond to the 424A letter.” The response from the Tribunal officer is that no such request for extension had been received. The representative made reference to his “health problems” and then is reported to have said that he would “put the request for the postponement and the extension in writing and send it through” (SCB 1).

    2)The case note dated 6 February 2009 at 4.05pm reports that the Tribunal employee telephoned the representative and advised that the Tribunal had not agreed to postpone the hearing as had been requested, and enquired as to his availability to participate by telephone (SCB 2).

    3)The case note dated 6 February 2009 at 4.11pm, reports that the Tribunal officer telephoned the representative to report that the member “had considered his request and is willing to change the time of the hearing to 11am.” It appears that the representative had other matters on that day, and it is still unclear as to how the request by him to change the hearing time to 11am came about. (See SCB 3.) [Noting that the telephone calls at (2) and (3) above were six minutes apart.]

    4)The case note dated 6 February 2009 at 4.15pm, reports on a telephone conversation again between the Tribunal officer and the representative. The officer reports that she provided reasons to the representative as to why the Tribunal had not agreed to reschedule the hearing date as had been requested. In relation to the time for the hearing, the advice was that the Tribunal was prepared to “change the start time of the hearing to 8.30”. This appeared to be, in context, to enable the representative to attend at another matter at 10.30am. The representative is reported as having said: “that he would speak to the visa applicant to find out whether she is available and he would give me a call back” (SCB 4).

    5)The case note dated 6 February 2009 at 4.58pm is in the following terms (SCB 5):

    “I called the representative and asked him whether he had spoken to the visa applicant about the change of time for the hearing. He said that he had spoken to them. He said that they are not happy about it but they will be there at 8:30.
    I told the representative that the request for an extension to the 424A letter had been refused.”

  18. In supplementary submissions, the Minister concedes that the Tribunal’s letter of 6 February 2009 (at CB 95) which, on its face, indicates its agreement to the request for an adjournment, “is a clerical error”.

  19. The issue, however, is whether, in all the circumstances, the Tribunal properly dealt with the request for a rescheduling of the date of the hearing, and the time for the hearing.

  20. The request to reschedule the hearing was made by the applicant’s representative on the applicant’s behalf by letter sent by facsimile transmission dated 6 February 2009 (CB 90 to CB 91). It is important to note that the request for rescheduling the hearing was not for any reason related directly to the applicant or her witnesses, but due to the representative’s medical problem (related to his left eye).

  21. I am now satisfied on the material before the Court, that the Tribunal gave proper consideration to this issue. It refused the request for rescheduling the hearing for reasons which were advised to the representative (at SCB 4).

  22. The applicant was invited to attend a hearing before the Tribunal on 9 February 2009. While there were confusing aspects to the Tribunal’s subsequent relevant letter of 6 February 2009 (CB 95 – the “clerical error”), the applicant plainly understood that the date for the hearing was to be 9 February 2009, and the time was to be 8.30am. I am satisfied that the “clerical error” did not affect the invitation to the hearing, or detract from the proposition that what was offered to the applicant, and subsequently afforded to her, was a meaningful opportunity to attend.

  23. This was confirmed by the applicant herself in written submissions made to the Court on 12 June 2009. She clearly states that she understood that her representative was to request a postponement due to his eye problem, but that she nonetheless received a letter from the Tribunal that she was to attend the hearing on 9 February 2009 at 8.30am. The applicant attended at that time with her witnesses. The applicant’s agent also participated by telephone as he had previously agreed with the Tribunal officer.

  24. The only evidence before the Court of what occurred at the hearing, which lasted for just under two hours, is the Tribunal’s own account contained in its decision record. I agree with the Minister’s supplementary submissions that, on a fair reading of this account ([33] at CB 172 to [53] at CB 175), the applicant was afforded a meaningful opportunity to provide evidence and arguments in support of her claims which were explored in some detail with the applicant during the hearing.

  25. The applicant’s submission that her representative did not tell her of any opportunity for the hearing to be held at 11am, as opposed to 8.30am (on the same day) does not assist her now. While this may have been an inconvenient time, and while the applicant may indeed have been “upset at first” (see her written submissions), the applicant agrees in her submissions that she attended at that time as she had been advised by the letter of 6 February 2009.

  26. There is nothing to show that any inconvenience in the time affected the applicant’s capacity to present her evidence and arguments. Nor is there anything to show that her witnesses were inconvenienced such as to detract from their capacity to give evidence. Noting, of course, that her representative also participated, albeit by telephone.

  27. In all, therefore, I am satisfied that the Tribunal properly considered and exercised its discretion not to adjourn the hearing (see s.427(1)(b) of the Act) and that a meaningful opportunity for a hearing pursuant to s.425 was provided to the applicant. The applicant’s other complaints in relation to what occurred in and around the hearing are dealt with below.

  28. Nor can I see any error in the Tribunal’s decision not to extend the time for the response to the invitation to comment on information it considered would be the reason, or part of the reason, for affirming the decision under review.

The Grounds of the Application to the Court

  1. As set out above, the applicant has put before the Court, as her grounds of application, ten listed items.

Ground one

  1. The applicant complains that the Tribunal was in error in not “delaying the hearing” so that her representative could attend.

  2. This issue is dealt with above. First, it was open to the Tribunal not to agree to the request to adjourn the hearing. This is particularly so in circumstances where the request proposed no date or time at which the representative could subsequently attend in person. But, in any event, his participation at the hearing was achieved by use of the telephone. There is nothing before the Court to show that the representative’s participation by telephone denied the applicant a fair and meaningful opportunity to put her evidence and arguments before the Tribunal at the hearing. In fact, it was as a result of his participation at the hearing, that a further submission from the representative was sent to the Tribunal on 11 February 2009. (See CB 123 to CB 153.)

  1. The representative’s submission of 11 February 2009 also made reference to (CB 121):

    “… some other documents which I had intended to hand up at the RRT  Hearing. These were not handed up as I had not attended the RRT Hearing due to my eye and the risk of losing my eyesight. However, these will be sent shortly”

    These appear to be the documents attached to the representative’s subsequent submission to the Tribunal of 16 February 2009 (CB 156 to CB161), being statements by the applicant’s relatives, and a newspaper article referring to domestic violence, presumably in Fiji. The Tribunal plainly took these submissions and attachments into account in its consideration of her claims. (See [63] to [64] at CB 177 to CB 178.)

  2. In all the circumstances, the Tribunal was clearly (given what its officer told the representative) entitled to take into account the provisions of s.414A(1). Given that the request for the adjournment lacked a specific date, and was not for a reason personal to the applicant, it was clearly open to the Tribunal to proceed in the way that it did, noting, of course, that pursuant to s.427(6), in appearing before the Tribunal to give evidence, the applicant was not entitled to be represented before the Tribunal by any other person. Nonetheless, the Tribunal, in my view, consistent with its obligation to act fairly, made arrangements which were agreed to by the representative that he would participate in the hearing by telephone. A method of participation which, it is noted, even permits an applicant to appear before the Tribunal in this fashion. (See s.429A.)

  3. This ground does not succeed.

Grounds two and three

  1. These grounds assert that during the hearing “the Tribunal passed out”, and that the Tribunal “erred when a staff [member] made unsupported claims outside the hearing room that the representative was having the applicant lie.”

  2. I can only agree with the Minister’s submissions that these allegations are vague and, even after the hearing before the Court, remained un-particularised. Ultimately, the applicant has provided no evidence to support these allegations. There is nothing in the material before the Court to show that the Tribunal member “passed out” or that a “staff” member made statements outside the hearing room “that the representative was having the applicant lie.” In the absence of any evidentiary basis for these allegations, these grounds cannot succeed.

  3. I note, in this regard, that the applicant was able to draw on the assistance of a number of people resident in Australia in providing various submissions and letters of reference to the Court. Even more importantly, she accessed and consulted a lawyer on the panel of the Court’s legal advice scheme, who provided written advice to the applicant on 21 May 2009. The applicant clearly had the opportunity to provide evidence to substantiate, or to support, the claims made in these grounds.

Ground four

  1. Ground four asserts error on the part of the Tribunal by not advising the applicant that it may not accept that her former de facto partner had no political connections “through his cousin”.

  2. The applicant’s reference in this ground to her former de facto partner’s “cousin” appears to have been first raised by the applicant in the interview with the delegate. The cousin was said to be “the mayor of Nadi … who is in the military” (CB 169.3). This matter also arose during the course of the hearing before the Tribunal ([41] at CB 172). The applicant’s complaint appears to derive from the Tribunal’s reference in its reasoning to her ex-partner’s connections with, amongst others, “the mayor of Nadi” ([74] at CB 180).

  3. The answer to the applicant’s complaint is derived from a proper understanding of the context within which the Tribunal said ([74] at CB 180) that it did “not accept that the applicant’s ex-partner has any political connections which would prevent, or affect, any investigation by the police.”

  4. The applicant had claimed that she would be subjected to violence from her former de facto partner if she were to return to Fiji, as he had committed acts of domestic violence upon her in the past. The Tribunal found, amongst other things, that the Fijian state did provide for effective protection to the applicant in these circumstances.

  5. At paragraph [74] of its reasons, the Tribunal then went on to consider specific claims made by the applicant as to why such protection would not be available to her. This was said to be because of the ex-partner’s “various familial and political connections”. The Tribunal rejected her claim that any complaint by her of domestic violence would not be dealt with by the authorities, because it found inconsistencies in the applicant’s relevant evidence (CB 180).

  6. The Tribunal’s finding in this regard, was a finding of fact that was plainly open to the Tribunal to make on what was before it, and for which it gave reasons. Further, there is no obligation on the Tribunal to disclose to an applicant for comment, any proposed findings of fact that it intends to make, that is, for example, by way of providing the applicant with a draft decision record (VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 at 476 to 477 per Finn and Stone JJ, cited in SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).

  7. To the extent, however, that the applicant’s complaint may be said to be a breach of the Tribunal’s procedural fairness obligation pursuant to s.425, as explained by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”), the Tribunal is required to “sufficiently indicate” to the applicant during the course of the hearing those issues that are determinative of the review, being issues other than those that the delegate considered dispositive (SZBEL at [35] and [47] in particular).

  8. The issue of the harm feared from the former de facto partner because of domestic violence, and the availability of adequate state protection to the applicant in these circumstances, was clearly a live issue following the delegate’s decision. In this regard, I agree with the Minister’s submissions that the applicant’s subsequent explanation to the Tribunal that she would not be awarded such protection because of her former partner’s political connections, was simply a part of the material relevant to that issue, such that it was not necessary for the Tribunal to specifically address the applicant’s mind to a possible finding that the applicant’s ex-partner had political connections which would prevent or affect any investigation by the police. This was not a new issue, but additional evidence “about an extant issue” (See Minister for Immigration and Citizenship v SZKTI [2009] HCA 30 at [51]).

  9. In any event, it can be said that, on the only evidence before the Court of what occurred at the hearing, the Tribunal “sufficiently indicated” to the applicant the inconsistency of her evidence in relation to the former partner’s cousin and his political connections. (See [41] at CB 172.) I note, in this regard also, the authorities cited by the Minister in written submissions (SZBEL at 158 to 159, [19] to [20], 164, [38], and 165, [42] to [43], Minister for Immigration and Citizenship v Applicant 125 of 2003 [2007] FCAFC 162; (2007) 163 FCR 285).

Ground five

  1. In ground five, the applicant complains that the Tribunal was in error in not considering that the “connection at Nandi airport would include Nausori”. In the absence of any particularity, it would appear that the applicant’s complaint is directed to the Tribunal’s finding that it would be reasonable for the applicant to relocate outside of Nadi and Suva, the areas where her former partner resides.

  2. During the course of the hearing, the Tribunal explored with the applicant the issue of relocation to another part of Fiji (see [48] at CB 173). In that discussion, the applicant raised a difficulty as to her being able to return to Fiji undetected. The Tribunal reports that she said: “He also knows people in Immigration in Nadi. She would not be able to fly to Nadi.”

  3. In considering the reasonableness of relocation, the Tribunal directly addressed this aspect of the applicant’s explanation as to the difficulties of any possible return to Fiji undetected by her former partner. The Tribunal’s analysis was ([83] at CB 181 to CB 182):

    “The applicant stated that Nadi is the only international airport in Fiji and that if she were to fly through Nadi, her partner would be aware of her whereabouts through his connections with Immigration or through his niece, who is an air hostess. The Tribunal notes, however, that Nausori Airport is the second International Airport in Fiji and is situated on the eastern side of the main island of Viti Levu. Thus, the Tribunal is of the view that if the applicant were to fly to Fiji through the Nausori airport, she would be able to avoid her partner’s connections with Immigration and other political and familial connections. The Tribunal is of the view that by flying through Nausori airport, the applicant would be able to travel to any area or town away from Nadi or Suva and away from the influence of her former partner and others who are connected with him, thereby avoiding any harm that she fears.”

    [Citation omitted.]

    (I should just note that in the consideration of the reasonableness of relocation, the Tribunal, for those purposes, assumed that the applicant’s former partner did have political and other connections, even though it appears that it had earlier found that not to be the case.)

  4. As the Minister submits, there were factual findings made by the Tribunal which were open to it, and no error is revealed in that regard.

  5. I should just note that in the attachment to the “third submission” made by the applicant to the Court dealing with the Nausori airport, the information provided is that the “Nausori airport is counted as a second International Airport” in Fiji and is “situated on the eastern side of the main island of Viti Levu” (See [12] at item 3 above.) Therefore, as noted by the Tribunal in its reasoning reproduced above (at [137]), it would appear that the material that the applicant herself sought to provide to the Court, supports the Tribunal’s factual finding.

  6. Far from not considering the “connection” at “Nandi airport” and Nausori, the material before the Court reveals that the Tribunal did give consideration to the applicant’s claim that she would be detected through her ex-partner’s political and other connections, but nonetheless found that the applicant could return safely to Fiji through this airport. This ground also does not assist the applicant.

Grounds six and seven

  1. In grounds six and seven, the applicant appears to take issue with findings made by the Tribunal in relation to the conclusion made by it that the applicant could reasonably relocate to a part of Fiji outside of Nadi and Suva. (See the Tribunal’s decision record at [83] and [84]).

  2. I should just note that in relation to the applicant’s claim to fear harm from her former de facto partner on the basis of domestic violence, or because of her awareness of his criminal activities, the Tribunal had already found that effective state protection would be available to the applicant anywhere in Fiji.

  3. What appears at [83] and [84] is clearly directed to the reasonableness of relocation of the applicant away from Nadi and Suva, in the event that the former ex-partner did have political and other connections in those areas where he lived.

  4. (I should just note that this is yet another example of the difficulty created by the Tribunal’s approach to apparently making definitive findings but then for whatever reason considering alternatives as if those findings were attendant with some doubt or were “wrong”.)

  5. Nonetheless, in considering the reasonableness of relocation in the current case (bearing in mind what was said by the High Court in SZATV v Minister for Immigration and Citizenship and Another [2007] HCA 40; (2007) 233 CLR 18), the Tribunal did have regard to a range of relevant factors, including the applicant’s past employment history, prospects of future employment in Fiji, and her language skills. As the Minister submits, the Tribunal did turn its mind to the “practical realities” facing the applicant if she were to so relocate. (See NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37 at [22], [23] and [73].)

  6. Further, the Tribunal, as is already referred to above, did raise the issue of relocation with the applicant at the hearing. (See [48] at CB 173.) If there was other material that the applicant wished to put before the Tribunal, for example, employment prospects outside Nadi and Suva, as she has attempted to put before the Court, then it was plainly open for her to have done so at the appropriate time.

  7. Specifically, in relation to ground seven, it is not clear what the applicant seeks to complain about. The Tribunal did consider the reasonableness of relocation outside Nadi and Suva. As stated, the second part of the sentence in ground seven appears meaningless.

  8. But in any event, when viewed with its finding in relation to state protection, the Tribunal’s finding that it would be reasonable and safe (adequate state protection) for the applicant to relocate outside of Nadi and Suva to avoid harm from her former partner, was a finding that was open to it on the material before it. I cannot discern error in this aspect of the Tribunal’s analysis.

Grounds eight, nine and ten

  1. These three grounds deal with various aspects of what is said to be error in the Tribunal’s finding that the applicant would receive adequate protection from the Fijian state, in relation to any harm emanating from any domestic violence.

  2. The applicant’s complaint appears to be that there is no criminal offence for domestic violence in Fiji, and that the Tribunal failed to consider that fact. It was therefore in error in considering that the police would give the applicant protection in these circumstances.

  3. This issue was raised at the hearing by the Tribunal with the applicant. The Tribunal’s report of the hearing is as follows (at [47] at CB 173):

    "The Tribunal noted that one of its concerns with the applicant’s case was that there was a policy of protecting domestic violence victims and it was not satisfied that if the applicant approached the police, the authorities would be unwilling or unable to protect her. The applicant said she could not give a statement but there was no government and no law in Fiji. Her sister approached the domestic violence centre in Fiji about the law that she was told by the Department and she was told that there was no law and no government. The Tribunal again referred to country information which suggested that all complaints that were made were investigated by the authorities.”

  4. Further, in relation to the “‘no drop’ policy” in Fiji, this also was raised at the hearing with the Tribunal (see [43]). Whether or not there is a criminal offence for domestic violence in Fiji is not conclusive of the issue as the applicant’s complaint implies now. It was plainly open to the Tribunal to take into account independent country information available to it to arrive at its relevant factual findings.

  5. It should also be noted that the applicant’s evidence at the hearing with the Tribunal, at first, was that she had never made a domestic violence complaint to the police in Fiji, but that she later said she may have gone once “but there was no evidence”. Further, she could not remember when this had happened (see CB 168.9).

  6. The applicant’s complaint at ground 9 that the Tribunal “incorrectly considered a ‘no drop’ policy which applies to the abuse of children as protecting the applicant from domestic violence”, does not appear to accord with the material in the Court Book. The reference to offences against children appears at [66] of the Tribunal’s decision  record, where it lists “Information from other sources”, and is a reference to amendments made by the Fijian Parliament to the country’s Penal Code.

  7. However, immediately preceding this paragraph, the Tribunal makes reference to a “2007 US State Department Country Report on Human Rights Practises” in Fiji (released in March 2008), and which relevantly stated as follows ([65] at CB 178):

    “Although there is no specific law against domestic violence, it can be prosecuted as assault. The police claim to practise a ‘no-drop’ policy, under which they pursued investigations of domestic violence cases even if a victim withdrew her accusation…”.

  8. It was clearly open to the Tribunal to find, based on independent information which was available to it, and on the applicant’s own evidence, that she had not sought, or that it was at best unclear as to whether she had sought, protection from the police in the past, to find that effective protection would be available to her. The choice of country information and the weight to be accorded to it is, of course, a matter for the Tribunal. (See NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at 11.)

  9. None of these grounds assist the applicant now.

Conclusion

  1. It must be said that it is not clear why the Tribunal chose to deal with the applicant’s claims in a manner where, notwithstanding where for the most part it appeared to make clear findings absent from doubt, it then proceeded to consider alternatives as if some doubt had existed. Nor is it clear why the Tribunal felt compelled to address a situation (particular social group) in the way that it did.

  2. Notwithstanding this however, on a fair reading of the Tribunal’s decision record, I am satisfied for the reasons set out above that the Tribunal’s decision does not contain jurisdictional error. For the applicant to succeed before the Court, such error, at least, would need to be seen. Therefore, this application is dismissed.

I certify that the preceding one-hundred and fifty-six (156) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  C Darcy

Date:  3 September 2009

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Cases Citing This Decision

1

SZSTS v Minister for Immigration [2014] FCCA 744