SZOVN v Minister for Immigration
[2012] FMCA 550
•4 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOVN v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 550 |
| MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal. ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it failed to consider a change of circumstances, breached s.425 of the Migration Act 1958, failed to consider evidence, did not conduct its review in good faith, denied the applicant procedural fairness, failed to question the applicant adequately, failed to consider whether state protection was available to the applicant, made unreasonable findings, failed to consider the applicant’s particular social group and failed to consider the question of relocation. |
| Migration Act 1958, ss.65, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 SZOOR v Minister for Immigration & Citizenship [2012] FCAFC 58 |
| Applicant: | SZOVN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2601 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 13 June 2012 |
| Date of Last Submission: | 13 June 2012 |
| Delivered at: | Sydney |
| Delivered on: | 4 July 2012 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2601 of 2011
| SZOVN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Fiji who arrived in Australia on a tourist visa on 2 April 2010. On 3 May 2010 he lodged an application for a protection visa alleging that he feared persecution in Fiji because of his political opinion, religion and membership of the particular social group of homosexual men in Fiji. On 29 July 2010 his application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
The Tribunal decision the subject of these proceedings is the second such decision relating to the applicant. A previous Tribunal decision dated 11 November 2010 was quashed by consent on 20 May 2011.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-16 of the Tribunal’s decision. Relevant factual allegations are summarised below.
In his protection visa application the applicant claimed that he feared for his safety in Fiji because of his political opinion. He claimed that he would be harmed by certain government agencies, the military and the police because he supported non-governmental organisations such as the human rights movement which the government was against. The applicant further claimed that his freedom to worship had been affected.
At a departmental interview on 21 July 2010 the applicant also claimed that he would be persecuted because of his mixed race, particularly his part-Chinese heritage. He further claimed that in 2009 whilst attending a church conference, some soldiers had warned the attendees not to hold further large gatherings without government permission.
First Tribunal
In his application for review of the delegate’s decision the applicant attached a letter from his migration agent. The letter, dated 18 August 2010, was addressed to the Minister and referred to the plight of the agent’s Fijian clients.
Prior to the hearing with the first Tribunal the applicant submitted a supporting letter dated 14 September 2010 in which he claimed that his life would be in danger if he retuned to Fiji. He claimed that the military dictatorship in Fiji denied citizens freedom of expression and association. The applicant further claimed that the military and the police had arrested and detained human rights activists, journalists and others perceived to be a threat to the government. The applicant also provided the Tribunal with a support letter from his aunt and country information relating to human rights abuses in Fiji.
The applicant attended a hearing before the first Tribunal on 13 October 2010 and made the following claims:
a)he was a Methodist and attended church on Sundays in Fiji, as well as other classes. He had attended church in Australia a few times;
b)he supported minority groups, particularly homosexual groups. If people became aware of this he would be threatened;
c)he had experienced low level harassment and bullying because of his Chinese background but had not suffered actual harm;
d)he first had fears for his safety in Fiji when the government came to power in 2006;
e)he had not spoken out against the government in Fiji in the past and had not belonged to any political party;
f)he had previously visited Australia between December 2008 and March 2009 to celebrate his birthday. His more recent visit was for the purpose of spending Easter with his uncle and his family. He had not applied for a protection visa on his first visit because things had not been bad in Fiji. When he returned to Fiji in March 2009 he did not fear persecution there for any reason but things became worse. There was a curfew imposed, his work hours were reduced and he only earned $2.30 an hour; and
g)he had joined the “democratic movement” in Australia but had not attended any meetings or functions. The members of the movement wanted to re-instate democracy and the rule of law in Fiji.
After the hearing, the applicant provided a letter dated 18 October 2010 from the Fiji Democracy and Freedom Movement (“FDFM”). The letter stated that the applicant had attended an FDFM rally on 2 October 2012 and had signed up to join the movement. The letter also stated that the military regime in Fiji had enacted a law, Crime Decree No 44 of 2009, criminalising certain actions by Fijian citizens overseas. It stated that Fijian citizens who had joined the movement and advocated for the restoration of democracy in Fiji faced a strong possibility of persecution on their return to Fiji.
Second Tribunal
The applicant appeared before the second Tribunal on 29 July 2011. Before the hearing commenced, the applicant told the Tribunal that he was unwell and wished to have the hearing postponed. The Tribunal indicated that it would adjourn the hearing to allow the applicant to attend a doctor in the city and return with a medical certificate which it would then assess and decide whether to adjourn or proceed with the hearing. The applicant then said that he was well enough to proceed.
At his hearing before the second Tribunal the applicant made the following claims:
a)he was no longer claiming to fear persecution on the basis of his ethnicity;
b)he was homosexual. He had not mentioned this claim in his protection visa application because he had been focussed on other issues and had no reason for not raising it at his departmental interview. The applicant then said that he did not mention this claim because being homosexual was taboo in Fiji;
c)he had faced name-calling and had been beaten up by people for being homosexual. His friends, family and church knew that he was homosexual. The church had not stopped him from worshipping and neither the church nor his friends had harmed him. He had to hide his homosexuality from some people and had to be careful with other people to avoid offending them. He was rejected by his family and other people because he was homosexual;
d)he was punched in 2005 in a bar for being homosexual. He ran away and did not report the matter to the police or seek medical treatment;
e)in 2008 while drunk and walking down a street he was attacked by two drunken men who stole his valuables. He reported the matter to the police but later decided not to pursue charges against his attackers;
f)he had attended a homosexual pageant in Fiji as a spectator. He had not wanted to be actively involved because of a fear of persecution. Even though he had attended homosexual seminars and workshops, this was not active involvement;
g)the decriminalisation of homosexual sex in Fiji would make homosexual men targets and increase their risks;
h)he had not had any involvement in political activities before the military took over in 2006. He then said that he had supported the SDL while it was in power and had attended one meeting with university friends. He had also donated money to the party;
i)he had only attended an FDFM activity in Australia on 2 October 2010, the day he signed up. His evidence at the first Tribunal hearing that he had not attended any activities was a mistake. He checked their website periodically for information;
j)neither he nor any member of his family had been harmed in the past because of their political opinion;
k)he would not be involved in political activities if he retuned to Fiji because he “would be put down by the regime”;
l)there were only reports about what happened to “high status” people in Fiji but nothing about what happened to ordinary people like him;
m)if he returned to Fiji, he would not have a job and it would take about six to twelve months for him to find one; and
n)if the authorities found that he had lodged a protection visa application he would be questioned, threatened and physically harmed by the military or the police.
On 18 August 2011 the applicant submitted to the Tribunal an article concerning government action against the Methodist church in Fiji and a collection of articles concerning homosexuals in Fiji.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal found that the applicant did not face a real chance of serious harm from the general population in Fiji, the government, police or military by reason of his homosexuality. In this regard:
i)the Tribunal found that the applicant had not raised his claim of being homosexual in his application, at his departmental hearing and at the first Tribunal hearing and that he had not given a satisfactory reason for this. The Tribunal accepted that the applicant was truthful in his claim that he was homosexual but was of the view that he did not raise the claim earlier because he did not fear serious harm in this respect. The Tribunal was thus not satisfied that the applicant’s fear of serious harm for being homosexual was as great as he claimed;
ii)the Tribunal noted the applicant’s evidence that he had not been harmed by his church, family or friends. The Tribunal also found that, based on the limited evidence before it, it could not be certain whether the applicant was criminally assaulted in 2005 and 2008 because he was homosexual. The Tribunal noted that the applicant had not reported the 2005 assault but said that if he had, he might have been offered state protection. The Tribunal further noted that the 2008 assault might have been a crime of opportunity and that although the police helped him, it was the applicant who had decided not to pursue criminal charges against his attackers. The Tribunal was therefore not satisfied that the past events described by the applicant showed that he had faced serious harm because he was homosexual;
iii)having considered the applicant’s evidence, his claims and country information, the Tribunal preferred independent country information it had obtained about the current situation of homosexual men in Fiji which led it to conclude that they did not face a real chance of serious harm. In light of the country information and its other findings, the Tribunal concluded that whilst there might be a degree of intolerance, verbal abuse, simple harassment and discrimination displayed towards homosexual men in Fiji, this did not mean that there was a real chance of harm to the applicant then or in the reasonably foreseeable future. The Tribunal considered that the chance of serious harm was remote;
iv)the Tribunal referred to country information showing that any risk of harm for homosexual men could be lessened by living in one of the larger cities and it found that as the applicant had resided in Suva in the past he could do so in the future; and
v)the Tribunal found that the applicant had lived openly as a homosexual man, having told his family and friends and attended a homosexual pageant as well as homosexual seminars and workshops. It found that he had lived safely as a homosexual man in the past and could again live openly as a homosexual man and safely in larger places such as Suva where he had already lived previously;
b)the Tribunal was not satisfied that the applicant faced a real chance of serious harm from the interim government, police and military in Fiji based on his religion. In this regard:
i)the Tribunal accepted that the applicant was a genuine Christian and Methodist who had attended church. The Tribunal also accepted that during one gathering military officers had told those present that in future they would need to obtain a permit for large gatherings but found that the applicant did not describe suffering any serious harm or having had his right to practise his religion infringed; and
ii)the Tribunal referred to country information showing that some high profile Methodist church leaders who had been outspoken against the government had been targeted and had had charges laid against them. However, the country information also indicated that ordinary members of the church could continue to practise their religion without being targeted or subjected to harm. The Tribunal noted that the applicant had not been a leader nor had he been involved in the religious/political activities of the church leaders;
c)after noting the applicant’s evidence that he had not been involved in political activities in Fiji in the past, the Tribunal accepted that if he returned to Fiji he would not be involved in any political party or activities. The Tribunal was thus not satisfied that the applicant would face a real chance of serious harm on the basis of political opinion because of anything political that he had done, or that had been imputed to him, in Fiji in the past;
d)the Tribunal was not satisfied that the applicant’s actions in Australia of lodging a protection visa application and joining the FDFM and checking its website periodically, would, either on their own or in combination with the introduction of the Fijian Crime Decree, result in the applicant facing serious harm based on his real or imputed political opinion. In this regard:
i)the Tribunal accepted that the applicant had lodged a protection visa application because had a subjective fear of returning to Fiji, rather than as a means of claiming that he would be persecuted in Fiji for lodging the application. However, the Tribunal found that there was no evidence or country information before it to suggest that the Fijian government would have access to the applicant’s protection visa application information and it thus did not accept that the applicant would face a real chance of serous harm in Fiji because he had lodged a protection visa application;
ii)the Tribunal noted that the applicant provided inconsistent evidence about whether he had attended an FDFM meeting and did not accept his explanation for the inconsistency as plausible. Whilst accepting that the applicant may have attended for the purpose of joining the FDFM, the Tribunal found that the applicant had not attended any rally and rejected the FDFM’s evidence. Given its findings about the applicant’s lack of past political opinions and activities, his joining of the FDFM six months after being in Australia and the fact that he had not been involved with the group other than checking its website, the Tribunal formed the view that the main reason the applicant joined the FDFM was to strengthen his claim to be a refugee. The Tribunal was, however, satisfied that the applicant had joined the FDFM because he also, as a concurrent reason, had a genuine concern about the political and economic future of Fiji. Noting the applicant’s claim that he would be harmed because of his membership of the FDFM, the Tribunal found that there was no evidence or country information to suggest that the Fijian government had access to the FDFM membership roll; and
iii)the Tribunal found that there was no evidence or independent country information to suggest that the Fijian military government would take any action against the applicant for his conduct in Australia under the provisions of the Crime Decree or that the law had been used in the way claimed by the applicant since coming into effect;
e)the Tribunal was not satisfied that curfews imposed by the government or the applicant’s economic hardship in Fiji were on the basis of political opinion or for any other Convention reason. However;
f)based on country information provided by the applicant, the Tribunal accepted that the situation had changed politically in Fiji between the applicant’s first and second visits to Australia. Nonetheless, the Tribunal found that the applicant did not give a satisfactory explanation as to why he did not seek to leave Fiji prior to April 2010 if he developed a fear of serious harm based on his political opinion shortly after he returned to Fiji after March 2009. The Tribunal found that the applicant’s failure to explore any way of leaving Fiji prior to April 2010 raised doubts about the strength of his claimed fear of harm based on his political opinion at that time;
g)the Tribunal was of the view that the applicant would not be involved in political activity or in publicly expressing his opinion in Fiji in the future. In addition, the Tribunal found that the applicant would not openly or publicly express his political opinion because it was not in his nature to be politically involved or to openly express his opinion, rather than because of a fear of harm. In support of this conclusion, the Tribunal noted that the applicant had had minimal political involvement in Fiji in the past; he had not publicly expressed his political opinion in Australia, where he did not face harm from the military, and had not given any plausible reasons for this; and he had joined the FDFM for the main reason of improving the prospects of his protection visa application being successful on review;
h)as it had found that the applicant would not publicly express his political opinion in Fiji because it was not in his nature, the Tribunal found that the applicant would not be forced to live discreetly in the context of his political opinion if he returned to Fiji; and
i)the Tribunal was not satisfied that the applicant would face anything more than the widespread economic hardship faced by most Fijians because of Fiji’s economy. The Tribunal noted that the applicant had not claimed that his fear of significant economic hardship was for a Convention reason and there was no information to suggest such a connection.
Proceedings in this Court
In the application commencing these proceedings the applicant alleged:
1.The Tribunal have sent in a decision dated the 24 OCT 2011 specifying refusal to grant the Protection. The Constitution as well as the Tribunal has the power to re-consider the application when circumstances have drastically changed and the present circumstances are attached to the earlier situation and in this connection please read the noted below of the UNHCR.
2.The Federal Magistrate Barnes FM dated the 20th May 2011 remitted the case to the Tribunal. The applicant attended the hearing and requested the Tribunal to postpone the hearing and was unwell and not in the state of mind to produce in its original form and had just got sick but however had turned up at the hearing to advise that he was sick and had throat problem. As the applicant was not in his state of mind but the Tribunal. The Tribunal as laid out in Point No.37 – The applicant was advised “that the hearing was his opportunity to tell the Tribunal everything important about his case. The applicant was not in his frame of mind and was sick and did not know what was going on in the hearing owing to his swollen throat and body ache which apparently happened just the night before the hearing.
3.An Affidavit duly made out in the initial application lodgement to the Department of Immigration by the applicant declaring and indemnifying that the Applicant suffered great pains and has gone through significant difficulties and escaped and have expressed their concern on the return of the applicant owing to change in the circumstances have not been taken into account. Also the circumstances and political situation is worsening day by day as known to the world. He has been discriminated because he is gay. This is a statutory declaration and declarant is aware that such a declaration is punishable by law for proving false information.
4.The above examples show that the Tribunal did not in fact raise specific issues in relation to the applicant’s claims. The Tribunal more or less ran the hearing in a manner that it wanted to dismiss on vague reasons.
5.By conducting the hearing in the manner in which it did the Tribunal’s decision was infected by jurisdictional error because it circumvented the hearing process without following the procedures and allowing for questions pertinent to the hearing.
6.It must be noted that the conduct of the hearing is controlled by the Tribunal. It is the Tribunal who has the responsibility to focus on questions that is directed to the applicant so that the Tribunal can ascertain the claims particularly the political opinion.
1. Procedural unfairness
The Tribunal is therefore guilty of procedural unfairness because during the conduct of the hearing the Tribunal did not address specific issues with the applicant and then to reach the conclusion it did as part of its decisions spells jurisdictional error and bias.
5.Constructive failure to exercise jurisdiction/failure to carry out the statutory function
The applicant contends that the Tribunal is charged with the Statutory function of fact finding and assessing claims.
Procedural unfairness – Convention reasons not pursued
The applicant states that the Tribunal did not at any stage MENTION or address the Convention reasons surrounding the definition of Refugee. In not doing so the Tribunal displayed procedural unfairness.
Unreasonableness
The unreasonableness and illogicality flows from the tribunal’s failing to make a finding on a factual basis to support the decision.
Social class and failure to take into account relevant considerations
The applicant submits she [sic] constitutes a particular social group against which the finding of protection ought to have been made.
8. Relocation
No finding in relocation appears to have been made. it was within mandatory scope of the Tribunal to consider practicality and reasonableness of relocation: NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37.
9. Well-founded fear of persecution consideration
The tribunal failed to consider the applicant’s claims of well-founded fear of persecution but went on asking without understanding and knowing what is the reality and the present political situation is enough to take cognizance of the scene. The tribunal as pointed out in point no.89(b) have admitted that there are numerous cases where high ranking officials have been targeted by the regime. High ranking officials are publicly known whereas ordinary members are easily killed or swallowed without evidence underground and unknown.
(errors in original)
At the hearing of this application the applicant also alleged that the error committed by the first Tribunal was repeated by the second Tribunal. He also alleged that he felt “bamboozled” at the second Tribunal hearing and had not been given enough “space” to answer questions.
Ground 1: change in circumstances
The first ground of the application invites a consideration of the merits of the applicant’s claim to be entitled to a protection visa. The present proceeding is not concerned with the merits of the applicant’s claim to have a well-founded fear of persecution for a Convention reason, but, as noted earlier in these reasons, with whether the Tribunal’s decision is affected by jurisdictional error.
For this reason, the first ground of the application discloses no basis upon which the Court might set aside the Tribunal’s decision.
Ground 2: breach of s.425 of the Act
In the second ground of the application the applicant alleges, in effect, that because he was unwell on the day of the second Tribunal hearing he was denied the real and meaningful hearing which was his right under s.425 of the Act. The applicant adduced no evidence which supported or corroborated his claim to have been ill at the time of the Tribunal hearing so the only evidence before the Court concerning the conduct of the Tribunal’s hearing, including the applicant’s fitness to attend it, is found in the Tribunal’s report of the hearing set out in its decision record. The applicant did not suggest that that report was deficient or incorrect. As noted earlier in these reasons, the Tribunal addressed the applicant’s fitness as a preliminary issue before the hearing proper started, at which time the applicant advised the Tribunal that he was well enough to proceed. Paragraph 36 of the Tribunal’s reasons further records that it told the applicant that if at any time he felt unwell he should say so in order that the hearing could be adjourned to enable him to consult a nearby doctor and obtain a medical certificate. The Tribunal’s report of the second hearing makes no mention of the applicant having taken up that offer.
In the circumstances, there is no evidentiary basis for me to find that the Tribunal’s rehearsal of the applicant’s claim to have been ill at the hearing on 29 July 2011 but well enough to proceed was otherwise than as described by it. For this reason, I conclude that the applicant was not denied a real and meaningful hearing by reason of poor health on the day of the Tribunal hearing.
Ground 3: failure to consider evidence
In the third ground of the application, apart from impermissibly inviting the Court to review the merits of his visa application, the applicant alleges that the Tribunal did not take into account an affidavit submitted with his original visa application. However, at no point in the visa application and decision review process did the applicant provide the department or the Tribunal with an affidavit or even a statutory declaration other than the ones contained in the printed departmental forms associated with his 2010 protection visa application which affirmed the truth of his claims. Therefore, the Tribunal did not fail to consider an affidavit as alleged.
Ground 4: Tribunal hearing not conducted in good faith
In the fourth ground of the application the applicant alleges that the Tribunal’s conduct of its hearing reflected a desire to “dismiss on vague reasons”. The applicant has not identified, in the context of this allegation, what aspect of the Tribunal’s conduct of its hearing evidenced error. To the extent that this allegation suggests that the Tribunal conducted the hearing with a view to dismissing the review without a proper basis to do so, it must be rejected. The summary of the Tribunal’s hearing and its reasons set out above at [12]-[15] discloses a thorough approach to both. There is no evidence before the Court to support a conclusion that the applicant was unable to put before the Tribunal the evidence and arguments he wished it to have. Further, the Tribunal’s thorough consideration of the evidence before it disclosed a conscientious approach to the making of its decision and gives no suggestion of vagueness, lack of precision or questionable reasoning.
Subsequently, in his further ground entitled “Procedural unfairness” which follows para.6 of the application, the applicant asserted that the Tribunal’s conduct at the second hearing was such that he formed an apprehension that it “was only conducting the hearing for the sake of conducting a hearing”. He also alleged that the Tribunal’s conduct satisfied the test of apprehended bias. Under the heading “Procedural unfairness – Convention reasons not pursued”, the applicant also asserted that the Tribunal’s expressed reasons for its decision did not address his claims and “was just a general summary the Tribunal put before him just to complete the routine and protect himself”. The applicant concluded his application with the following statement:
The manner in which the applicant’s claim have been summarised and finalized would suggest to an ordinary person that the Tribunal has shut its find and approached the hearing with a predetermined conclusion that there was no basis of the applicant fearing anything and never determined that his review of application was “well founded fear of persecution”.
For the reasons set out above at [23] I find that a fair-minded lay person who was properly informed as to the nature of the proceedings before the Tribunal, the matters in issue and the Tribunal’s conduct of its hearing, would not reasonably apprehend that the Tribunal was not bringing an unprejudiced mind to the question it was required to decide.
Ground 5: breach of s.425
The implication in the fifth allegation is that the Tribunal hearing was in some way inadequate and failed to permit relevant issues to be explored. No transcript of the hearing was placed before the Court and thus the only record of the Tribunal’s hearing is what appears in its summary of that hearing set out in its decision record. That summary gives no reason to conclude that the hearing was deficient in the way the applicant appears to allege.
Ground 6: Tribunal did not question that applicant properly
The sixth allegation appears to assert that it was the Tribunal’s responsibility to draw out of the applicant the details of his claim, rather than it being the applicant’s responsibility to advance the claims which he wished to make. In this regard, in the allegation under the heading “Procedural unfairness” which follows ground six, the applicant asserted:
There is no defense [sic] on the part of the Tribunal to state that it allowed the applicant to state whatever he wanted. The applicant is not a person from a legal background and he would have no knowledge in how to conduct his own hearing and is also partially impaired owing to stress and nervousness was scared to attend in relation to Point No.47 of the Tribunal’s decision.
The Tribunal is not obliged to prompt or stimulate an elaboration on which an applicant chooses not to embark: Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at 451 [58] per Gummow and Hayne JJ. For this reason, the sixth ground of the application is misconceived and discloses no error on the Tribunal’s part.
Ground 7: procedural unfairness
The matters which are raised under this heading have already been dealt with above in relation to the fourth, fifth and sixth grounds of the application.
Ground 8: constructive failure to exercise jurisdiction
The particulars of this allegation raise four matters: the correctness of the Tribunal’s decision on the merits of the applicant’s application for review; whether the Tribunal erred in the manner in which it questioned him at the hearing; whether it misunderstood his claims; and the significance of its failure to deal with the question of state protection.
In relation to the application for merits review, for the reasons already given such review is not available in these proceedings. Similarly, for the reasons already given the Tribunal did not err by failing to ask the applicant particular questions about his claims. The allegation that the Tribunal misunderstood the claims which the applicant made was not particularised in a way which suggested that the Tribunal had failed to consider any of the indicia of the applicant’s claims. Finally, as the Tribunal concluded that the applicant did not have a well-founded fear of persecution for a Convention reason, there was no need for it to consider whether he needed state protection and the fact that the Tribunal did not address this issue with more than a passing comment does not amount to error.
Ground 9: procedural unfairness – Convention reasons not pursued
In the particulars of this allegation the applicant asserts that the Tribunal failed to determine his “claims under the definition of race, religion and membership of a particular social group etc”. This allegation is quite incorrect on a factual basis as the summary of the Tribunal’s reasons for decision at [15] above discloses.
Ground 10: unreasonableness
The particulars of this allegation essentially assert that the Tribunal’s findings and conclusions were illogical and unreasonable as well as being manifestly unreasonable in the sense discussed in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. Wednesbury unreasonableness is concerned with decisions of a discretionary nature and not with decisions in relation to the state of satisfaction required under s.65 of the Act, which is the relevant decision in this case: Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611; Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59. Consequently, that aspect of the allegation need not be considered further.
As to the remainder of the allegation, in the context of the state of satisfaction required under s.65, illogicality and the relevant form of unreasonableness concern decisions for which there is no evidence or at which no rational or logical decision-maker could arrive: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611; SZOOR v Minister for Immigration & Citizenship [2012] FCAFC 58. The findings and conclusions reached by the Tribunal in the decision under review do not satisfy those criteria. As a consequence, this ground is not made out.
Ground 11: social class
In his application, which appears to have been partly drawn for a person in different circumstances, the applicant characterised the particular characteristics of the social group to which he belonged as:
(a) nuclear group of single wealthy man;
(b) lack of extended family support;
(c)high vulnerability to attacks because of racial and political indifference;
(d)high vulnerability of attacks based on the perception of being wealthy and his political affiliation.
As the applicant made no claim to membership of such a group during the course of his Tribunal review and an unarticulated claim of this nature does not arise tolerably clearly from the materials, he cannot raise the claim now. For this reason, this ground discloses no error on the Tribunal’s part.
Ground 12: relocation
The allegation that the Tribunal erred by not considering whether it was reasonable and practicable for the applicant to relocate within Fiji proceeds on a false assumption. The necessity to consider the question of relocation would only arise if the Tribunal had concluded that the applicant had a well-founded fear of persecution for a Convention reason in his home area in Fiji. It did not make such a finding and, indeed, concluded that he did not have such a fear in Fiji. In such circumstances, there was no need for the Tribunal to consider the question of relocation and the fact that it did not do so is not demonstrative of error.
Ground 13: well-founded fear of persecution consideration
The applicant alleged that the Tribunal failed to consider his claim to have a well-founded fear of persecution but did not identify in what respect this was so. The applicant has not suggested that the Tribunal’s decision record was deficient or inaccurate in this respect and, having considered what the Tribunal said was before it in terms of claims, evidence and arguments and then having considered the reasons for its decision, I find that there is no basis to conclude that the Tribunal failed to consider the applicant’s claims to fear persecution.
Ground 14: allegations at hearing
The first fresh allegation made by the applicant at the hearing of this matter was that the Tribunal had repeated the error which had seen its original decision on whether he met the criteria for the grant of a protection visa set aside. This is not correct. The first decision was set aside because the Tribunal had failed to consider whether the applicant had not spoken out in Fiji because he feared repercussions if he did. In the decision presently under review the Tribunal referred to its first decision having been set aside for that reason and at paras.70-72 of its decision it recorded that it canvassed this issue with the applicant at its hearing on 29 July 2011. Further, at paras.183-192 of its decision, under the heading “Findings and Reasons” the Tribunal discussed this aspect of the applicant’s claims in some detail and concluded that the applicant would not express political views were he to return to Fiji because it was not in his nature to be politically involved or to express his political opinion openly. Consequently, on the facts, this allegation is not made out.
As to the second fresh allegation made at the hearing of this application, the Tribunal’s decision record does not support a conclusion that the applicant was confused or unable in some way to answer the Tribunal’s questions or to present his case. Further, no particulars of this allegation were advanced by the applicant and no particular question or line of questioning was identified for specific consideration by the Court. As a result, I find that this aspect of the allegation is not made out. Related to this claim was the allegation that the applicant had been unable, through lack of “space” to answer the Tribunal’s questions. However, paras.72, 79, 85 and 87 of the Tribunal’s reasons record that the applicant was given adequate opportunity to put his case to the Tribunal, including by written submissions after the hearing, with the result that this allegation has not been proved.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 4 July 2012
5
1