SZORN v Minister for Immigration - [2010] FMCA 987

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZORN v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 987

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error - whether or not the Refugee Review Tribunal properly considered the applicant’s claim to be a refugee in Fiji – whether the Refugee Review Tribunal sent the applicant an invitation in accordance with section 425 of the Migration Act – whether, even if there was a breach of section 425 of the Migration Act, the Court should exercise its discretion to grant relief.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 65(1)(b); 66(2)(d)(iv), 91R; 424, 424A,425, 429, 477(1), 477(2), 474; pt.8 div.2

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263;
SGBB v Minister for Immigration and Multicultural and Indigenous Affairs(2003) 199 ALR 364;
Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801;
SCAL v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCA 548;
NAHI v MIMIA [2004] FCAFC 10;
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29;
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407;
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259;
Abebe v Commonwealth of Australia (1999) 197 CLR 510;
Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24;
SZOFE v Minister for Immigration and Citizenship (2010) 269 ALR 343;
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630.

Applicant:

SZORN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2201 of 2010

Judgment of:

Emmett FM

Hearing date:

8 December 2010

Date of Last Submission:

9 December

Delivered at:

Sydney

Delivered on:

17 December 2010

REPRESENTATION

Applicant appeared in person

Counsel for the Respondent:

Ms R Graycar

Solicitors for the Respondent:

Ms A. Totoeva (Clayton Utz)

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2201 of 2010

SZORN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 2 September 2010 and handed down on 3 September 2010.
The applicant claims to be a citizen of the Republic of the Fiji Islands (“Fiji”), a member of the Riverina Fijian Community and a member of the Methodist Church of Fiji (“the Applicant”).
The issues raised by the Applicant in this case are whether or not the Tribunal properly considered her claim to be a refugee in Fiji, whether the Tribunal sent the Applicant an invitation in accordance with s.425 of the Act and whether, even if there was a breach of s.425 of the Act, the Court should exercise its discretion to grant relief. These issues are considered below in the context of considering whether the Tribunal’s decision is affected by jurisdictional error.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the Applicant’s protection visa application claims and the decision of the delegate of the First Respondent (“the Delegate”) and a summary of the Tribunal’s review and decision.

Background

The Applicant arrived in Australia on 30 September 2009 having departed legally from Fiji on a passport issued in her own name and a subclass 676 Visitors visa issued in Suva. The Applicant departed Australia on 26 October 2009 and returned as the holder of a subclass 676 Visitors visa on 27 November 2009.
On 31 December 2009, the Applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 17 March 2010, the Delegate refused the Applicant’s application for a protection visa.
On 13 April 2010, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 2 September 2010, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 12 October 2010, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then s.65(1)(b) mandates that the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.

The Applicant’s claims for protection

The Applicants claims for protection are accurately summarised in the written submissions of counsel for the First Respondent, Ms Graycar as follows:
5. The Applicant first visited Australia, arriving on 30 September 2009 as part of a cultural visit by the "Lautoka Cultural and Entertainment Group" of which she was a member, to participate in the inaugural Fijian Day Festival in Griffith. The group stayed for 4 weeks, returning to Fiji on 26 October 2009. The Applicant returned to Australia (and to Griffith) on 27 November 2009.
6. During the course of the first visit, the Applicant and her group performed at the Fiji Day celebrations in Griffith and the Chief Guest was Colonel Jone Baleidrokadroka. The Applicant’s group performed for him and also performed a traditional dance "on the victory of the Deposed Prime Minister" (who was not present). The Applicant stated that at the ceremony the Chief Guest spoke about some of his thoughts on the "present regime and ideas on how it can be conquered" (CB 51).
7. The Applicant claims she fears persecution if she were to return to Fiji on four different bases set out in her application as follows (see CB 22):
"a) I fear my safety as illegal arrest, torture and abuse and death.
b) This ongoing activities at the military camp still exists.
c) I have witnessed people who have been abused at the camp to suffer permanent injury, family separation, mental disorder, imprisonment and even death.
d) For the above, media blackout is alive in Fiji at present."
8. These claims were elaborated upon by the Applicant in an attachment (CB 37) to a letter sent to the delegate dated 25 February 2010 (CB 36). In that attachment she indicated that:
(a) the problems she faced in Fiji were that the Constitution of Fiji had been abolished; she had been a local government councillor but her term had been affected by the coup by the Military Regime; and she was a staunch Methodist and "Methodist in Fiji has been raped by this illegal government" (CB 37); and
(b) the reasons she applied for the visa were that "visa itself explains my need and that is to be protected from the torturing I might face back in Fiji"; she had no employment to go back to; and she "would like to leave (sic) where Democracy is alive and practised" (CB 37).
9. The Applicant also attached letters of support from four members of the local (Griffith) community (CB 38-41); a letter from the Lautoka City Council confirming that the Applicant had been an elected member from 2005 to 2008; a number of newspaper articles by way of country information (CB 44-53); and a letter of support from the Multicultural Council of Griffith (CB 54-55).

The Delegate’s decision

On 23 February 2010, the Applicant attended an interview with the Delegate.
On 17 March 2010, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.
The Delegate was not satisfied that the Applicant’s fear of persecution in Fiji in the reasonably foreseeable future was well founded. The Delegate noted that at the interview she claimed to have been informed that the military would arrest her if she were to return. However, the Delegate found that no action had been taken against her in the period of one month that she spent in Fiji during late October to November 2009 before she returned to Australia. The Delegate also was not satisfied that her unemployment was Convention related.

The Tribunal’s review and decision

The decision of the Tribunal is accurately summarised by counsel for the First Respondent in her written submissions as follows:
“10. The Applicant participated in a hearing at the Tribunal by video conference on 27 May 2010 and was assisted in doing so by a migration agent (see CB 114; Tribunal’s reasons for decision at [21]). A number of witnesses also gave evidence to the Tribunal in support of the Applicant (see CB 114; at [20]).
11. In its reasons for decision, the Tribunal referred to the Applicant’s claims in her protection application, including the claim that the military would await her on her return to Fiji (see CB 114-115) and recorded the evidence of the Applicant at the hearing as follows:
(a) the Applicant was educated to year 12, and had been employed by the Fiji Electricity Authority. She was married and had six children. Her husband was medically retired and the Applicant had travelled to Australia with one of her children (CB 119; [40]);
(b) the Applicant’s mother was alive and living in Fiji, though her father had passed away. The Applicant reported that her parents had not been involved in politics, and while they were also Methodist, had not experienced difficulties on that account. However, the Applicant considered that because of her education, she was more able to have roles that could advance the causes of the Church and this had created difficulties for her (CB 118-119; [38]-[39]);
(c) the Applicant had been an elected representative on the Lautoka City Council where she had worked with unemployed youth (and this was the connection with the youth group with whom she had travelled to Australia). She had been a member of the Labour party prior to her election as a councillor (CB 119-120; [42]-[43]);
(d) she told the Tribunal that she had heard from her daughter that if she returned to Fiji, the "military people would be after" her (see CB 120 at [47]) but she was unable to provide any further information on this claim;
(e) she had had difficulty in finding employment in Fiji and attributed this, at least in part, to the military coup (CB 124; [68]); and
(f) she was concerned about her freedom to practise her religion and stated that permits were required for certain religious meetings and these were not frequently granted (CB 124-125; [70]-[71]).
12. In its reasons for decision, the Tribunal also notes that it put to the Applicant at the hearing a number of concerns it had regarding her evidence, namely:
(a) the Applicant claimed that her term as City Councillor had ended earlier than it was meant to as a result of the coup (CB 120-123; [49]-[63]). The Tribunal also explored with the Applicant her role in the Labour Party and invited her – both orally at the hearing, and subsequently – to provide any further information that she could in relation to her involvement with the Labour Party. However, no further information was forthcoming;
(b) the Tribunal also put to the Applicant the fact that those people who had given evidence on her behalf, or had provided statements in support of her claim, did not refer to persecution or to her claim to be a refugee (with the exception of Reverend Tabulutu) (CB 125-127; [73]-[74]; [79]-[86]);
(c) it noted that the Applicant had made a number of claims about being harassed and followed by police but that she did not claim that other members of her family had been subjected to the same treatment (CB 123; at [64]); and
(d) the Tribunal referred to its attempts to have the Applicant elaborate upon the claims she had articulated in relation to torture by the military (CB 125-126; [75]-[76]).
13. By a decision dated 2 September 2010, the Tribunal affirmed the decision not to grant the Applicant a protection (class XA) visa. The Tribunal considered that there were four separate categories into which the Applicant's claims fell and articulated them as follows:
(a) membership of a particular social group - participation in the Lautoka Cultural and Entertainment Group;
(b) imputed political opinion - organiser of the Lautoka Cultural and Entertainment Group;
(c) political opinion - association with the Labour Party; and
(d) religion - as a member of the Methodist Church.
14. The Tribunal made the following findings and comments in relation to each of these claims:
Membership of a particular social group - Participation in the Lautoka Cultural Group
(a) while the Lautoka Cultural Group (Group) is a "particular social group", the Tribunal did not accept that the Applicant will face persecution on account of belonging to this group on return to Fiji (CB 132; [105]-[106]);
(b) the link between the Group’s performance in front of former Colonel Baledrokadroka and in honour of the former deposed Prime Minister, and its representation as a political statement, is tenuous (CB 132; [107]);
(c) there was not a real chance that the Applicant would come to the attention of authorities as someone with an imputed or actual political opinion simply for having participated in performances as part of a cultural traditional dance group, which on one occasion performed in front of a deposed political figure (CB 133; [111]);
(d) the country information demonstrated the existence of a watch list of persons whose movements in and out of the country might be restricted, however there was no evidence of any interest being shown by the authorities in the movements of the Applicant and the Group (which had exited and entered Fiji without difficulty) (CB 133; [112]);
(e) it does not accept the Applicant's claim that she was notified by her daughter that there were rumours that the military would await her at the airport on her arrival in Fiji, given that the Applicant was able to depart Fiji in November 2009 without difficulty (CB 135; [115]);
(f) the Applicant never was, nor will be, of concern to the military on account of her membership of the Group (CB 136-137; [119]-[121]);
Political Opinion - Organiser of the Group
(g) the group did not conduct itself as a Group with political affiliations nor were there any reports of its having committed acts of political defiance and it was not known for its activities beyond its participation in the multicultural festival (which was consistent with the comment by those who wrote letters of support for the Group and the Applicant) (CB 136; [123]-[124]);
(h) after considering the Applicant's role in organising the Group to travel to Australia, it found that the combination of that role and the Applicant’s political role on the local council as a Labour Party Member, would not lead to a real chance that were she to return to Fiji she would face persecution on account of her political opinion (CB 137; [127]-[128]);
Political Opinion - Association with the Labour Party
(i) it accepted that the Applicant was a member of the Labour Party but did not accept that simply being a member of that Party would lead to her being perceived as a dissident. It was for that reason that the Tribunal sought further information on that connection, via the s 424A letter (CB 137; [129]-[130]; and see the letter set out at CB 127-128; [88]);
(j) it noted that country information indicated that being a member of the Labour party in Fiji in itself would not attract persecution were the Applicant to return to Fiji;
(k) it did not accept the Applicant's claim that the termination of her position as a member of the local council occurred 7 months prematurely due to her political beliefs and found that the Applicant was not removed from her position as claimed (CB 137-138; [132]-[138]). This was because the Tribunal noted that there was no evidence provided to support this claim, other than the limited evidence of Reverend Tabulutu which was based on what he had been told by the Applicant (CB 139; [139]);
(l) it did not find the Applicant to be a credible witness in respect of her claims that by being in the Labour Party she would have been targeted by the government authorities and did not accept that the Applicant was ever followed or threatened or monitored by authorities in any way due to her political affiliations (CB 139; [140]);
Religion - Member of the Methodist Church
(m) based on country information, the Tribunal found that simply being a member of the Methodist Church (which the Tribunal described as the most powerful civil society institution in Fiji) did not attract persecution in Fiji (CB 140; [146]);
(n) it accepted that belonging to the executive of the Methodist Church could also imply an imputed political opinion, that is, opposition to the current Bainimarama regime, but noted that the Applicant had not claimed to have had a high profile in the Methodist Church in Fiji (CB 140; [147]-[148]); and
(o) persons of the Applicant's profile, that is, an ordinary member of the Methodist Church, are able to practise their religion without interference by the authorities. Therefore the Applicant's involvement with the Methodist Church would not lead to there being any real chance that were the Applicant to return to Fiji, she would face persecution on the basis of her religion (CB 147; [151]).
15. The Tribunal concluded that, taking into account the Applicant's claims both individually and cumulatively, there was no real chance that the Applicant would face persecution on her return to Fiji, now or in the reasonably foreseeable future, on any of the identified grounds. As the Tribunal was not satisfied that she was a person to whom Australia has protection obligations under the Refugees Convention, the Tribunal affirmed the decision not to grant the Applicant a protection (class XA) visa (CB 141; [154]-[155]).”

The proceeding before this Court

The Applicant was unrepresented before this Court.
On 9 November 2010, the Applicant attended a directions hearing before me. The Applicant confirmed that she wished to continue with the application. The Applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing.
Although the Applicant’s application for judicial review was filed a few days outside the 35 day time limit provided in s.477(1) of the Act for the filing an application for judicial review, no issue is taken by the First Respondent either in their Response or by their solicitor, Mr Smith, who attended the directions hearing. In the circumstances, the Court proceeded to set the matter down for final hearing.

At the directions hearing, the Applicant was referred to the Court’s Legal Advice Scheme for free legal advice. The Applicant has participated in the Court’s Legal Advice Scheme and received free legal advice. The Applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in English.
At the commencement of the hearing, an order was made extending time to the Applicant to rely upon her application for judicial review of the Tribunal’s decision dated, 3 September 2010, and filed on 12 October 2010 pursuant to s.477(2) of the Act.
The Applicant confirmed that she had not filed any amended application, evidence or submissions in support of her application and that she had no further documents to present to the Court this morning in support of her application.
The Applicant confirmed that she relied on the ground contained in an application filed on 29 September 2010 as follows:
“1. Court to relook at the definition of refugee and the situation in Fiji.”
The Applicant was invited to make submissions in support of the ground of her application and in support of her application generally. The Applicant commenced to re-state her claims and assert that the Tribunal did not understand that she was at risk in Fiji and was therefore a refugee.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal gave careful and comprehensive consideration to the Applicant’s claims and her supporting material. The Tribunal explored those claims with the Applicant in significant detail and put to her matters of concern it had about her evidence and noted the Applicant’s responses.
In particular, the Tribunal explored with the Applicant her claims of being an elected representative of the Lautoka City Council; her membership of the Labour Party; her return to Fiji from Australia in October 2009 and her subsequent return to Australia a month later; her alleged interest to the authorities in Fiji; that her term with the Lautoka council appeared to have been concluded without incident; the letter she provided from the council praising her contribution; whether the Applicant’s curtailment of a political career constituted serious harm or persecution; whether being removed from her job amounted to persecution; whether she was followed by police in Fiji following her departure from the council; whether her family was being pursued in Fiji; whether the Applicant had been closely monitored whilst in Fiji, yet given a passport to leave Fiji on two occasions; country information that suggested there was a watch list in respect of people of interest to the Fijian military police; the circumstances for which she was able to depart Fiji, whether she was able to worship at the Methodist church in Fiji; the effect of any media ban in Fiji; her claim to have witnessed torture in military camps in Fiji and, that the cultural event in Griffith which the Applicant performed did not have any “real political connotation”.
In addition, the Tribunal spoke by telephone to each of the witnesses who had written letters of support for the Applicant. The Tribunal put to the Applicant that while the letters of support were praising of the Applicant in terms of the entertainment group she organised to come to Australia, they were silent on issues involving persecution. The Tribunal summarised the telephone exchanges it had with each of the witnesses.
There was no transcript of the Tribunal hearing provided to this Court, nor did the Applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 9 November 2010 the Applicant was given an opportunity to file a transcript of the Tribunal hearing. The Applicant was also directed to give notice if she wished to rely on recordings of the hearing. However, no step was taken by the Applicant to rely on any such evidence. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and each of her witnesses.
Following the hearing, on 31 May 2010, the Tribunal wrote to the Applicant pursuant to s.424A of the Act providing the Applicant with the information that may form the reason or part of the reason for affirming a decision under review, explaining its relevance and inviting her to comment. The Tribunal’s s.424A letter essentially put to the Applicant inconsistencies in evidence given by her to the Tribunal with information in a letter from the Lautoka City Council, dated 17 February 2010. The s.424A letter also put to the Applicant its concerns about the connections with the Labour party in Fiji and the Applicant’s term as a member of the Lautoka Council in Fiji, as well as its concerns about the letter written on her behalf by the council.
The Tribunal then noted that the Applicant requested several extensions in order to be able to respond to the s.424A letter. The Tribunal noted that a final extension was granted by the Tribunal by letter dated 27 July 2010, to 24 August 2010. The applicant did not respond by 24 August 2010, despite various further requests for an extension of time during that period.
On 25 August 2010 the Tribunal wrote to the Applicant referring to earlier extensions of time it had granted and notifying the Applicant that her third request for an extension of time to respond to s.424A letter, dated 27 July 2010 was refused.
Whilst the Tribunal has a discretion to grant an extension of time to an applicant to respond to a request for information, there is no statutory obligation on behalf of the Tribunal to grant that request. The last request received from the Applicant, dated 25 August 2010, referred only to further evidence she may seek to obtain from people with whom she had worked in Griffith in NSW and her involvement with the Griffith City Council. The letter also informed the Tribunal that her lawyer was no longer acting for her.
I accept the submissions of counsel for the First Respondent that the content of the Applicant’s request did not suggest that any further information she may provide would be responsive to the Tribunal’s concerns expressed in its s.424A letter.
In the circumstances, the evidence before the Court makes clear that the Tribunal considered the Applicant’s request for an extension of time and, in the proper exercise of its discretion, refused the further extension for the reasons given to the Applicant in the Tribunal’s letter, dated 25 August 2010.
In the Findings and Reasons section of the Tribunal’s decision record, the Tribunal accurately summarised all possible Convention related claims that could have arisen on the evidence and material before it in respect of the Applicant’s claimed fear of persecution in Fiji by authorities (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 where at [58] - [60]). In SGBB v Minister for Immigration and Multicultural and Indigenous Affairs ((2003) 199 ALR 364 at [405]), Selway J referred to the observation by Kirby J in Dranichnikov v Minister for Immigration and Multicultural Affairs ( [2000] FCA 1801) that “[t]he function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances”. He also referred to the observation by von Doussa J in SCAL v Minister for Immigration and Multicultural and Indigenous Affairs ([2003] FCA 548 at [16]) that, “[n]either the delegate nor the Tribunal is obliged to consider claims that have not been made”.
The Tribunal then carefully considered each of those claims by reference to the Convention in detail.
In relation to her claim to be a member of a particular social group, being part of the Lautoka Cultural Entertainment group that has performed in front of or about deposed political Fijian figures, the Tribunal was not satisfied that she was ever notified that the military would await her return to Fiji as a result. The Tribunal found her evidence in respect of this claim to be “vague and limited”. The Tribunal also rejected the Applicant’s claim of having been monitored in Fiji, yet able to depart for Australia in November 2009 for the second time. The Tribunal did not accept that the Applicant was a “high profile dissenter”. The Tribunal also had regard to independent country information that it found did not support the Applicant’s claim that the military government in Fiji would be interested in members of a dance group that had performed in front of former Colonel Baledrokadroka and about the former deposed Prime Minister, Minister Laisene Qarese.
In relation to the Applicant’s claim of fear of persecution by reason of her political opinion or imputed political opinion, the Tribunal did not accept that her dance group had any political affiliation. The Tribunal found that, it followed that in organising the dance group in the course of her welfare work with youth, she would not be imputed with any political opinion if she were to return to Fiji for that reason.
The Tribunal found that being a member of the Labour party in itself in Fiji would not attract persecution if she were to return to Fiji now or in the reasonably foreseeable future. The Tribunal made a similar finding in relation to her political role on the Lautoka City Council as a Labour party member in accordance with country information before it.
As stated above, the Tribunal put to the Applicant information relating to those claims that may form the reason or part of the reason for it affirming the decision under review in its letter written to the Applicant pursuant to s.424A of the Act, dated 31 May 2010.
The Tribunal found the Applicant was not a credible witness in relation to her claims of being targeted by government authorities because of her association with the Labour party in Fiji. The Tribunal rejected her claims of ever having being followed, threatened or monitored by authorities due to her political affiliations and rejected her claims of past persecution for those reasons.
In relation to the Applicant’s claims of persecution by reason of her membership of the Methodist Church in Fiji, the Tribunal found that country information was not consistent with those claims. The Tribunal noted that the Applicant did not claim to have any official capacity within the Methodist church. The Tribunal rejected the Applicant’s “vague” claims that quarterly and monthly meetings of her church were shut down by authorities or permits to meet repeatedly refused.
The Tribunal found that any unemployment that the Applicant may suffer in Fiji was not for any Convention related reason.
In the circumstances, the Tribunal found that, taking into account her claims both individually and cumulatively, there was not a real chance that the Applicant will face persecution on her return to Fiji now or in the reasonably foreseeable future for any Convention related reason.
The Tribunal identified with great specificity the country information to which it had regard. It also put country information that caused it particular concern to the Applicant in its s.424A letter dated 31 May 2010 and at the hearing.
It is well settled that the country information to which the Tribunal has regard and the weight it gives that information is a matter for the Tribunal (NAHI v MIMIA [2004] FCAFC 10 and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29)
In the circumstances, the Tribunal’s findings were open to it on the evidence and material before it, including its concerns about the Applicant’s credibility in respect of certain claims. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
Otherwise, the Applicant’s complaints appear to be more in the nature of a disagreement with the findings and conclusions of the Tribunal. Such complaints invite merits review which this court can not undertake. (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [195] per Gummow and Hayne JJ; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24 at 40-42 per Mason J).
During the hearing I raised with the First Respondent whether there was any issue relating to compliance with s.425 of the Act arising from the Tribunal’s invitation to the Applicant dated, 30 April 2010, which stated as follows:
“Arrangement have been made to conduct the hearing by video conference. The Member and interpreter will be in Melbourne. If there is a preference to attend in person in Melbourne, please contact the Tribunal as soon as possible.”
I raised with counsel for the First Respondent whether the fact that the Applicant had filed her review application in Sydney, yet was offered a hearing by video conference or a hearing in Melbourne in person, in any way breached s.425 of the Act. Counsel for the First Respondent submitted that s.429 of the Act permitted the Tribunal to conduct hearings by video conference. Further, counsel for the First Respondent submitted that the address of the Applicant in Griffith was in fact closer to Melbourne than to Sydney. Counsel also submitted that there was no requirement in the Act that an invitation to a hearing be at a specific location.
Counsel referred the Court to SZOFE v Minister for Immigration and Citizenship (2010) 269 ALR 343, where the Full Court of the Federal Court of Australia held that there was no jurisdictional error on the part of the Tribunal in failing to notify an Applicant, pursuant to s.66(2)(d)(iv), of all places at which an application for review of the Delegates decision could be lodged.
Counsel submitted that s.66(2)(d)(iv) made clear that notification to an applicant must state where an application for review can be made. No such requirement is provided in s.425 of the Act.
Further, counsel for the First Respondent submitted that, even if the Court were to find that there was any failure to comply with s.425 of the Act, the Court should not exercise its discretion to grant the relief sought by the Applicant, in circumstances where there has been no injustice suffered by the Applicant as a result of that breach.
The Applicant appeared keen to rely on this issue. I explained to the Applicant that she would need to seek the Court’s leave to file an amended application. I also explained to the Applicant the consequences that may flow to the Applicant if leave was granted to her to file an amended application raising an allegation of breach of s.425 of the Act. I explained that those consequences may be reflected in increased costs which she may bear, if she was ultimately unsuccessful. I explained to the Applicant that in order for her to be granted the relief she sought, she would need to succeed both in establishing that the Tribunal’s decision was affected by a failure to comply with s.425 of the Act and that she should be granted the relief sought.
In order to assist the Applicant further, I adjourned the hearing until the following day and requested the panel advisor, Mr Michel Jones, solicitor, to attend Court at that time so that the Applicant may be able to make an informed decision as to whether or not she wished to seek leave to file an amended application.
Mr Jones duly attended the adjourned hearing the following day and I explained to Mr Jones the issue relating to s.425 that had arisen and the issue in relation to the exercise of the Courts discretion, should an error be found. I then adjourned shortly to allow Mr Jones an opportunity to confer with the Applicant.
Upon resuming the hearing, the Applicant informed the Court that she did wish to seek leave of the Court to file an amended application. I explained to her that, if the Court found that a breach of s.425 was the only error that affected the Tribunal’s decision record, the Court would be unlikely to grant the discretionary relief sought by her in light of the substantial and comprehensive hearing that she had with the Tribunal about her claims. I said I would reserve my decision in relation to her application for leave to amend, pending my decision as to whether the Tribunal’s decision was otherwise affected by jurisdictional error.
I am satisfied that there is no error on the face of the Tribunal’s decision record that goes to its jurisdiction. As stated above, the Tribunal gave careful and detailed consideration to the Applicant’s claims, her evidence in support and its exploration of the Applicant’s claims with her at hearing was thorough. The Tribunal endeavoured to ensure that every possible Convention related claim that may have arisen on the material and evidence before it was considered and determined by it. As stated above, the Tribunal’s findings and conclusions were open to it on the evidence and material before it. The Tribunal correctly applied the relevant law to its findings and in reaching its conclusions.
Even if the Court was to find that there had been a breach of s.425 of the Act in inviting the Applicant to a hearing in the terms that it did, it is clear from the Tribunal’s decision record that there was no prejudice, unfairness or injustice suffered by the Applicant as a result of that breach. The Applicant attended a hearing with the Tribunal by video conference and the Tribunal’s decision record is otherwise without error. As stated above, the Tribunal gave careful and detailed consideration to all claims that arose on the evidence and material before it and heard from all the Applicant’s witnesses. In the circumstances, it is unlikely that the Court would exercise its discretion to set the Tribunal’s decision aside and grant the Applicant the constitutional writ relief she seeks. To remit the matter to the Tribunal in such circumstances would serve no utility.
In the circumstances, I am not satisfied that any amended application raising the issue of a breach of s.425 and the subsequent consideration by the Court of its discretion to grant constitution writ relief has any, or any reasonable, prospects of success.
Accordingly, the Applicant’s application for leave to file an amended application is refused and the grounds of her application for judicial review of the Tribunal’s decision dismissed.

Conclusion

A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about her evidence and noted the Applicant’s responses. The Tribunal also gave the Applicant information that may be the reason or part of the reason for affirming the decision under review in accordance with s.424A of the Act. The Tribunal also put to the Applicant independent country information before it and invited the Applicant to comment upon it. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date: 17 December 2010