SZOYZ v Minister for Immigration

[2011] FMCA 201

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOYZ & ORS v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 201

MIGRATION – Review of a decision of Refugee Review Tribunal – whether there was bias or the apprehension of bias on the part of the Tribunal – whether the Tribunal denied the applicant a fair hearing – whether the Tribunal failed to consider claims – whether the Tribunal’s decision was illogical or irrational and was affected by Wednesbury unreasonableness – whether the Tribunal failed to consider that the applicant belonged to a particular social group – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.420, 425, 476

Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568
Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parteDurairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405
Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422
Shah v Minister for Immigration and Multicultural Affairs [2000] FCA 489
Minister for Immigration and Ethnic Affairs v Guo & Anor [1997] HCA 22; (1997) 191 CLR 559; (1997) 144 ALR 567; (1997) 71 ALJR 743
SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638
Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50; (2010) 184 FCR 485
Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507; (2001) 178 ALR 421; (2001) 75 ALJR 679
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749
Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425; (2001) 75 ALJR 982
Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
Mahzar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188
SZLLY v Minister for Immigration and Citizenship [2009] FCA 185
SZGGD v Minister for Immigration and Citizenship [2009] FCA 1250
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592; (2006) 81 ALJR 515
SZLPI v Minister for Immigration and Citizenship [2008] FCA 1841
Wu Shan Liang v Minister for Immigration and Ethnic Affairs [1994] FCA 926; (1994) 48 FCR 294
Yilmaz v Minister for Immigration & Multicultural Affairs [2000] FCA 906; (2000) 100 FCR 495
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248; (2004) 139 FCR 344; (2004) 211 ALR 261
Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367; (2010) 84 ALJR 369

Applicant: SZOYZ & ORS

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 165 of 2011

Judgment of: Nicholls FM

Hearing date: 24 March 2011

Date of Last Submission: 24 March 2011

Delivered at: Sydney

Delivered on: 31 March 2011

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application made on 2 February 2011 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 165 of 2011

SZOYZ & ORS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This application was made on 2 February 2011 under s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 6 January 2011, which affirmed the decision of the delegate of the respondent Minister to refuse protection visas to the applicants.

Background

1. The applicants before the Court are a mother, one adult child and two younger children. All are Fijian nationals. Another child, who was an applicant before the Tribunal, is not an applicant before the Court.

Claims to Protection

1. The first named applicant (“the applicant”) claimed that she and her family feared persecutory harm from the military in Fiji. This was said to emanate from a belief by the Fijian authorities that her husband (who is now in Papua New Guinea) campaigned against the Fijian government.

2. She claimed that in May 2007 the military came to her house and arrested her husband, who was then detained and mistreated. She claimed she and her family were then harmed by the military while her husband went into hiding after being released.

3. The applicant was assisted by a Pastor from her church in Australia in making her application. She also submitted a number of documents in support of her claims, including letters to the Fijian Police Commissioner and the Fijian Prime Minister (See Court Book – “CB” – CB 49 to CB 63).

4. In all, the application expressed the claim to fear persecutory harm as being on the basis of race, imputed political opinion, and membership of a political social group.

The Delegate

1. The applicant attended an interview with the delegate on 18 August 2010 (CB 81). She also submitted a letter containing further information in support of her claims (CB 72 to CB 74).

2. The delegate refused the application on 7 September 2010 (CB 79 to CB 87). The delegate accepted that the incident of May 2007 had occurred, but was not satisfied that the incident involving her husband was Convention related, or that he would be targeted for a Convention reason.

3. Further, the delegate referred to independent country information and found that there was no evidence that persons with a low political profile would be targeted by the military. Even further, the delegate found an inconsistency between the applicant’s stable and steady life-style and the claim to have been subjected to constant harassment by the military.

The Tribunal

1. The applicant and her children applied for review by the Tribunal on 6 October 2010 (CB 88 to CB 91). She continued to be assisted by the church pastor (“the Pastor”).

2. The Tribunal invited the applicant to a hearing. The applicant accepted this invitation and notified the Tribunal that one of her children (who is not an applicant before the Court now) and the Pastor would attend, and that she wished them to give evidence (CB 93 to CB 96).

3. The applicant gave evidence at the hearing on 9 December 2010, as did the Pastor. The applicant’s daughter said she did not wish to say anything (see [41] at CB 133 to [78] at CB 138).

4. The applicant provided further documentary material in support of her claims (CB 106 to CB 116).

5. The Tribunal’s unchallenged account of the hearing reveals that the Tribunal squarely put its concerns about the credibility of her claims, particularly the “difference in evidence provided”, to the applicant ([76] at CB 138).

6. After the hearing she submitted an undated Statutory Declaration in which she claimed that the unsigned application, as “submitted” by the Pastor, was “incorrect and misleading”.

7. The Tribunal found that a number of “contradictions, inconsistencies and implausibilities” in the applicant’s claims and evidence led it to conclude that the “applicant is not truthful or credible in relation to her Convention related claims” ([87] at CB 140). The Tribunal gave examples of this (CB 140 to CB 142).

8. In this the Tribunal also found the applicant’s husband’s ability to depart Fiji legally was inconsistent with the claim that he was of adverse interest to the authorities. Further, the fact that the applicant and her family claimed they suffered serious harm yet remained in Fiji for three years after the claimed incident was difficult to accept.

9. The Tribunal considered each of the documents submitted by the applicant and found further inconsistencies. On this basis it found the documents were not genuine and placed no weight on them ([88] to [89] at CB 142).

10. In all, therefore, the Tribunal rejected the applicant’s factual account of what she said had relevantly occurred in Fiji and affirmed the delegate’s decision.

Before the Court

1. The applicant and one of her sons, the second named applicant, appeared in person. She was assisted by an interpreter in the Hindi language. The other two applicants are children. They were represented by their mother, whom I had earlier appointed as their litigation guardian. Mr T Reilly of counsel appeared for the first respondent.

2. It was quite clear in their submissions that the applicant and the second named applicant had difficulty in understanding that the issue for the Court was not whether the Tribunal should have accepted their claims to fear persecutory harm in Fiji, but whether in rejecting their claims the Tribunal fell into legal, or jurisdictional, error. Their oral submissions therefore for the overwhelming part (even after I sought to explain the difference in the role and function of the Tribunal and the Court) did not assist. The applicant in effect asked this Court to engage in impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568)

3. The applicant submitted that it was a “legal” mistake for the Tribunal to have refused her and her family recognition as refugees. The claim was that it was left unexplained why the Tribunal found against them.

4. The simple answer to this is found, as submitted by Mr Reilly, in the lengthy paragraph at [87] (CB 140 to CB 142) of the Tribunal’s decision record. The Tribunal found inconsistencies, implausibilities and contradictions in the applicant’s account, which led it to conclude that she was not truthful or credible.

5. As to the documents she submitted in support of her claims, the Tribunal found for the large part that their contents were generally inconsistent with her own claims.

6. All of these findings, and the conclusions to which they led, were reasonably open to the Tribunal on what was before it. Further, the Tribunal gave cogent reasons for its findings. In these circumstances, no legal error is revealed.

7. The applicant also complained that the Tribunal only “listened to the husband’s story”, not to her own. I took this to be a reference to a document prepared by the applicant’s husband, supposedly in support of the applicant’s claims. This document was apparently handed to the Tribunal by the applicant on the day of the hearing (see CB 113 to CB 116). Following the hearing the applicant advised the Tribunal that the document was given by “mistake” (see CB 112). The Tribunal noted this in its analysis (CB 141.9).

8. The applicant’s complaint was that the Tribunal should not have taken the contents of the document into account in these circumstances. That is, it should not have looked at this document.

9. The difficulty for the applicant is that the Tribunal considered this explanation, but nonetheless found that, in the first instance, the purpose of providing the document was to corroborate her claims. By inference, it was not given in error. This finding was open to the Tribunal on what was before it. In these circumstances also, as Mr Reilly submitted, the Tribunal was entitled to rely, or rather to consider, the contents of the document.

10. The applicant also complained that the Tribunal did not take seriously her claim concerning the psychological impact of the family’s situation on one of her daughters.

11. The Tribunal did note this complaint ([76] at CB 138):

    “I mentioned to the applicant that I had serious concerns about her credibility given the difference in evidence provided. I asked the applicant if she understood why I was concerned, and she said she did.”

12. The applicant was unable to explain what further the Tribunal could have done. As Mr Reilly submitted, the applicant’s statement to the Tribunal was not relevant to the issue of whether the family had a

    
    

    well-founded fear of persecution in Fiji.

13. In any event, given the Tribunal’s findings in comprehensively rejecting the applicant’s claimed factual account of events in Fiji, a clear inference can be drawn that even if the applicant’s daughter did have some psychological problems, they were not as a result of these events and the claimed consequent fear.

14. The applicant also raised for the first time in submissions in reply that the Tribunal’s decision was unfair because at the hearing with the Tribunal it did not “explain properly” and directed her to give “short answers” to its questions, and that this was difficult for her to do.

15. At its highest, this was a complaint that the Tribunal denied her a fair hearing.

16. The difficulty for the applicant in sustaining this complaint is twofold. First, on its own, this does not reveal any jurisdictional error in this regard. Second, the applicant has provided no evidence whatsoever to support this claim. This opportunity was extended to the applicant at the first Court date in this matter.

17. What the Court is left with is the Tribunal’s own account of what occurred at the hearing. On this account, the applicant was given the opportunity to put forward her claims (see for example [76] and [77] at CB 178).

Application to the Court

1. The application to the Court does not plead grounds for review in any recognisable form. The 24 paragraphs of the application appear to be a narrative of complaints, at times unintelligible. I read them as being in the nature of submissions.

2. At best the following assertions of error on the part of the Tribunal can be ascertained:

   1)Bias or the apprehension of bias on the part of the Tribunal.

   2)The applicant did not receive a fair hearing.

   3)A disagreement with factual findings made by the Tribunal.

   4)An allegation that the Pastor was biased.

   5)Complaints about the interview with the delegate.

   6)A failure to consider “effective state protection”.

   7)A failure to consider claims.

   8)That the Tribunal’s decision was illogical and irrational and was affected by Wednesbury unreasonableness (Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223).

   9)The Tribunal failed to consider that the applicant belonged to a particular social group.

3. A number of matters need to be made clear by the way of background in fully understanding why the applicant’s complaints do not reveal jurisdictional error on the part of the Tribunal.

4. First, the nature of the Tribunal’s decision is that the Tribunal affirmed the delegate’s decision because it disbelieved the applicant’s account of relevant claimed events in Fiji, and the basis for the applicant’s claimed fear of persecutory harm.

5. It is the case that the Tribunal is not obliged to accept or believe what an applicant puts to it (Randhawa v Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265). The Tribunal acted within jurisdiction in making findings of fact, including the findings leading to its rejection of the credibility of the applicant’s claims (Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parteDurairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405). The Tribunal’s findings were open to it on what was before it, and for which it gave reasons.

6. Second, the applicant’s complaint at “ground 13”, that the Tribunal was in error because the benefit of the doubt should be given to applicants who are generally credible but are unable to substantiate their claims, misunderstands that the Tribunal found the applicant was not credible.

7. The author of the application (the applicant told the Court it had been written by a person who had since returned to Fiji, and who had been engaged for this purpose by a “friend”) was probably referring to [203] to [204] of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (Geneva 1992). While this may be a useful guide, the Tribunal is bound only by those parts of it that have been incorporated into Australian law (Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 and Shah v Minister for Immigration and Multicultural Affairs [2000] FCA 489).

8. No question of the benefit of the doubt arises in the current case. The Tribunal’s findings on credibility were not attended by such doubt as to require it to consider that the claims might otherwise be true (Minister for Immigration and Ethnic Affairs v Guo & Anor [1997] HCA 22; (1997) 191 CLR 559; (1997) 144 ALR 567; (1997) 71 ALJR 743).

9. Third, the Tribunal’s assignment of “no weight” to some of the applicant’s supporting documents, its findings that they were not genuine, was not simply arrived at because of its disbelief of the applicant.

10. In this regard, as the Minister submits, the Tribunal considered all of the documentary evidence separately, and rejected it on the basis of identified concerns (SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638 at [27] per Finkelstein J). No error is revealed in these circumstances. The Tribunal was entitled to consider the applicant’s credibility and then separately turn its consideration to the documentary evidence (Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50; (2010) 184 FCR 485 at [37] per North and Lander JJ).

Complaint: Bias

1. The applicant asserts bias, or the apprehension of bias, on the part of the Tribunal. This appears to be said to be shown or emanate from the assertion that the applicant did not receive a fair hearing before the Tribunal.

2. The test for bias is that the relevant decision maker did not bring an open mind to the proceedings. Such an allegation goes not only to error on the part of the decision maker but also brings the decision maker’s integrity into question. It is a serious allegation to make. It should be clearly made and distinctly proven (Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507; (2001) 178 ALR 421; (2001) 75 ALJR 679, SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 at [43] to [44] per Tamberlin, Mansfield and Jacobson JJ, Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 (“VFAB”) and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425; (2001) 75 ALJR 982 (“Ex parte H”)).

3. For the applicant’s benefit I note that the test for the apprehension of bias is that the well-informed lay observer would reasonably apprehend that the Tribunal did not bring an open mind to the proceedings (see

   
   Ex parte H

   at [27] to [28] per Gleeson CJ, Gaudron and Gummow JJ, and Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138 at [14] per Branson, Finn and Bennett JJ.

4. The immediate and obvious difficulty for the applicant, putting to one side that the allegation has not been clearly made, is that the applicant has put no evidence to the Court in support of this claim. At best the applicant appears to rely on the Tribunal’s own account of what occurred at the hearing that is contained in its decision record ([41] at CB 133 to [78] at CB 138). In these circumstances the Court is unable to make inferences about what may otherwise have occurred at the hearing (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241).

1. This account reveals that the Tribunal explained its task to the applicant, gave her an opportunity to expand, explain and clarify her claims, put its concerns to her and asked her to respond. It sought to take evidence from the applicant’s two witnesses, and told her that she could provide additional information.

2. There is nothing in this to reveal bias or cause the apprehension of bias.

3. The application may be said to provide some particularity to this complaint. First, that the Pastor who “prepared” her application for a protection visa was biased. He is said to be biased because, in preparing her application, he did not “degrade his Fijian brothers” in what he said. This appears to be an expansion of the assertion in the applicant’s Statutory Declaration submitted to the Tribunal after the hearing (CB 121). The Pastor was said to have been “incorrect and misleading” in what he wrote.

4. The relevant evidence appears to be that:

   1)In her protection visa application, signed by her, the applicant stated that she could speak, read and write English (CB 11).

   2)In answer to the question: “Did you receive assistance in completing this form?” The applicant replied: “No” (CB 8, Question 14).

   3)

   The declaration signed by all the applicants at the time of the making of the application included (CB 9): “The information I have supplied on or with this form is complete, correct and

   
   

   up-to-date in every detail”.

   4)The Tribunal’s record relevantly reveals (CB 133):

   “[44] The applicant provided most of her evidence in English and from time to time, when sought, was provided assistance by the Hindi interpreter. I asked the applicant who prepared her application. She said her son completed the form. She said he is 19. I asked why he had not come to the Tribunal. She said he was working. She said she and the Pastor prepared the claims.

   [45] I noted that she had added some extra claims during her interview with the delegate, and asked why she had not included everything in her application. She said she was stressed and missed out some claims. I asked why she had said during the interview that the Pastor had not mentioned everything in the claims. She said she told him everything and he wrote down the claims. I asked the Pastor if he had written the claims. I showed him that section of the application, and he said that the claims were written by him. He said he wrote everything he was told.”

   5)The Pastor gave evidence to the Tribunal ([72] at CB 137). The Tribunal took it into account, but noted that: “… his evidence relates to what the applicant has told him about what happened in Fiji…” ([86] at CB 140).

   6)The Tribunal set out in full in its decision record the applicant’s Statutory Declaration provided after the hearing ([79] at CB 138).

5. The complaint that the Pastor was “biased” does not assist the applicant in revealing error on the part of the Tribunal. No such claim was made before the Tribunal such that it could be said that the Tribunal did not deal with it.

6. What was claimed in the applicant’s Statutory Declaration was that the protection visa application was prepared by the Pastor and was “incorrect and misleading”. At best the complaint now is that bias on the part of the Tribunal is revealed because the claims were written by the Pastor, and at the hearing the Tribunal did not address: “specific issues with the applicant”, and therefore: “… the claims were not spelt in the right direction.” (At [8] of the application to the Court.)

7. Whatever this may mean, it does not reveal bias on the part of the Tribunal. This allegation was not made at the hearing before the Tribunal, it was made following the hearing in the Statutory Declaration. It cannot be said that the Tribunal overlooked or ignored this Statutory Declaration. As well as reproducing it in full in its decision record, the Tribunal made specific reference to it in its analysis, albeit in relation to a point other than the Pastor’s claimed mistakes ([87] at CB 141.9).

8. In all these circumstances, I agree with the Minister that, as the Tribunal expressly referred to the Statutory Declaration, there is no inference open that the Tribunal overlooked the Statutory Declaration or any of the applicants’ allegations contained in it (Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 (“WAEE”) (see page 8 of the Respondent’s Submissions at footnote 9)).

9. Nor is it necessary for the Tribunal to expressly refer to every piece of evidence before it. Section 420 of the Act requires the Tribunal to set out the evidence on which its findings of fact were based. In this sense, I agree with the Minister’s submission that it is not necessary for the Tribunal to give a line by line refutation of every piece of evidence before it in circumstances where there is evidence contrary to the Tribunal’s finding of fact (WAEE).

10. In any event, the specific allegation against the Pastor in the Statutory Declaration was not a claim or a part of the applicant’s claims as to why she feared persecutory harm in Fiji. If it had been then a failure by the Tribunal to deal with such a claim could well have revealed jurisdictional error (WAEE, NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27). However, on what is before the Court, the Tribunal dealt with each such claim and aspects of each claim.

11. Bringing this matter back to the way the applicant appears to have drafted her complaint, the allegation is that the Tribunal prejudged the matter and that this was evidenced by its failure to accept that the Pastor wrote the statement in the original protection visa application, and that he did so without the applicant’s knowledge and presented an “incorrect account”.

12. In all of this, the applicant relies only on the Tribunal’s published reasons. As the Minister submits, in these circumstances no inference of bias or prejudgment can be drawn from the fact that the Tribunal made findings of fact adverse to the applicant. This is in circumstances where such findings were reasonably open to the Tribunal to make.

13. I cannot see in the circumstances that the Tribunal had a closed mind to any argument to support a conclusion contrary to the one made by the Tribunal (VFAB, SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668). On any holistic reading of its analysis, the Tribunal proceeded on the basis that what was said in the protection visa application represented the applicant’s claims at that time. No bias is revealed on this basis.

Complaint: No fair hearing

1. The applicant complains that she did not receive a fair hearing. To the extent that this is a complaint about the entire conduct of the review, then this appears to have been put in the context of an allegation of bias as dealt with above. To the extent that this is a complaint about the actual hearing before the Tribunal, then on the evidence available such a complaint cannot be made out.

2. On the evidence available it cannot be said that the Tribunal’s invitation to the hearing was a “hollow shell” or an “empty gesture” (Mahzar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188 at [31] per Goldberg J, SZLLY v Minister for Immigration and Citizenship [2009] FCA 185). The applicant was invited to, and attended, a hearing before the Tribunal. The hearing lasted as least two hours (CB 102). The Tribunal gave the opportunity to the applicant’s two witnesses to give their evidence. That the applicant’s daughter said she had nothing to say does not reveal a failure to afford a fair hearing.

3. The difficulty for the applicant here is a difficulty common to many of her complaints. She has provided no evidence to support her allegations. The only evidence relevantly before the Court as to what happened at the hearing is that contained in the Tribunal’s decision record.

4. Contrary to the applicant’s claims now, this account shows that the Tribunal asked very specific questions about the applicant’s claims (see for example [45] at CB 133, [54], [56], [60] at CB 135 and [64] at CB 136 to [75] at CB 138). In any event, as the Minister submits, the questions to be asked are a matter for the Tribunal to assist in its assessment of the claims. I cannot see error in circumstances where the Tribunal sought to give shape and direction to the hearing to see whether it could reach the requisite level of satisfaction as to the merits of the claims such that the visa must then be granted (SZGGD v Minister for Immigration and Citizenship [2009] FCA 1250).

5. It must be said that “ground 7” of the applicant’s “grounds” is unintelligible. When read with “ground 8”, however, it appears that, at best, the applicant’s attempt to give particularity to this complaint is that the Tribunal did not accept that the Pastor had written all the claims in the protection visa application and therefore did not address the claims “in the right direction”. I understood this to mean that either it did not ask questions about what she said about her claims at the hearing, or that the Tribunal was not satisfied that these claims alone met the definition of “refugee” such that the protection visa should have been granted.

6. The difficulty for the applicant is that, on the only evidence before the Court, it is clear that the Tribunal did engage with the applicant on the matters she raised for the first time at the interview with the delegate, and then before the Tribunal.

7. Further, the Tribunal preferred to accept, at least implicitly, the Pastor’s evidence that he wrote out the claims in the protection visa application, but he did so based on what he was told ([45] at CB 133). It did not accept the applicant’s subsequent claim that she had no knowledge of what was in the application. This was open to the Tribunal on what was before it.

8. No bias or, for that matter, jurisdictional error is revealed in these circumstances.

Complaint: Breach of s.425

1. The applicant also complains of a breach of s.425 of the Act (see in particular “ground 14” of the “grounds” of the application). In this regard, again, the applicant does not make any clear assertion as to the nature of the breach.

2. If the applicant seeks to invoke some breach as explained by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592; (2006) 81 ALJR 515 (“SZBEL”), then I agree with the Minister that any such complaint does not succeed. The Tribunal’s account reveals that it squarely put its concerns about the credibility of her factual claims and whether she had a subjective fear of persecutory harm to the applicant at the hearing (see in particular [76] at CB 138).

3. The issue in this matter was the veracity or otherwise of the applicant’s factual account of claimed events in Fiji and the claims of fear of harm said to emanate from these events. The Tribunal did more than “sufficiently indicate” to the applicant that it had difficulty in believing her (SZBEL at [47]). The applicant was given the opportunity to respond. This complaint is not made out.

Complaint: Factual Findings

1. Throughout her grounds the applicant appears to take issue with a number of factual findings made by the Tribunal. None of this assists the applicant as the Tribunal’s findings of fact were all reasonably open to the Tribunal to make on what was before it. They were made within jurisdiction. The Tribunal gave cogent reasons for its findings.

Complaint: State Protection

1. The application also complains that the Tribunal made no findings as to effective state protection (see [15] at CB 127).

2. The short and complete answer to the complaint is that the Tribunal did not need to do so. The ground is misconceived and misunderstands the nature of the Tribunal’s decision.

3. The Tribunal found that the applicants did not have a well-founded fear of persecution because it rejected the truth of the applicant’s factual claims said to give rise to a fear of harm if she were to return to Fiji. In these circumstances there was no obligation on the Tribunal to consider whether state protection was available or adequate (SZLPI v Minister for Immigration and Citizenship [2008] FCA 1841).

Complaint: Interpretation

1. The application also complains that at the interview with the delegate the level of interpretation was inadequate. Putting to one side that the applicant told the Minister’s department that she could speak, read and write English, any such failure on the part of the delegate does not reveal error on the part of the Tribunal. Any such “defect” even if it had occurred would have been “cured” by the Tribunal’s decision (Wu Shan Liang v Minister for Immigration and Ethnic Affairs [1994] FCA 926; (1994) 48 FCR 294 at [14] to [21] per Wilcox J (not affected by appeals), see also Yilmaz v Minister for Immigration & Multicultural Affairs [2000] FCA 906; (2000) 100 FCR 495 at [92] to [96] per Gyles J, Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248; (2004) 139 FCR 344; (2004) 211 ALR 261 and Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314).

Complaint: Illogical and Unreasonable

1. The further complaint that the Tribunal’s decision was illogical and unreasonable in the Wednesdbury sense can only be seen in the circumstances as a disagreement with the Tribunal’s conclusion. It again misunderstands the Tribunal’s reasoning and how it reached its conclusion.

2. The complaint is at best particularised by the assertion that he Tribunal did not determine the applicant’s claims under the definition of race, religion and membership of a particular social group. This is also said to be a breach of procedural fairness. This latter plainly misunderstands how the relevant principles of procedural fairness apply. In any event, this has been dealt with above.

3. Contrary to this complaint, the Tribunal did consider the applicant’s claims against the relevant Convention grounds. The complaint does not say how the Tribunal failed to do this. The Tribunal’s decision record reveals that that Tribunal took into account the applicant’s claims to fear persecution from the Fijian military on the basis of her race, political opinion and her husband’s membership of a particular social group (see CB 17, [24] at CB 128 to CB 129 and [86] at CB 140).

4. The Tribunal comprehensively rejected the applicant’s factual basis for harm feared. In particular it rejected her claim to have suffered harm from the military in Fiji. The Tribunal’s finding, in particular, that the applicant did not leave Fiji because of a fear of persecution for any Convention reason and that it was therefore not satisfied that they had a well-founded fear if they were to return was, in the circumstances, a plain rejection of her claim to fear harm on race, religion or particular social group grounds.

5. The factual underpinning of the applicant’s claims and its rejection means the applicant’s complaint cannot succeed.

6. Although I should just note that nowhere in the course of her application for a protection visa or the subsequent application for review did the applicant explain how her race and religion were factors in her fear.

7. As to the membership of a particular social group, at best the claim was that the applicant’s husband was perceived to be a member of some undefined group, which had the characteristic of including businessmen and critics of the regime in Fiji. The Tribunal expressly rejected that the applicant’s husband was targeted for this reason ([88] at CB 142).

8. It may be allowed that, following the High Court’s judgment in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367; (2010) 84 ALJR 369, illogical reasoning by a Tribunal may found a charge of jurisdictional error. But bearing in mind the relevant test (as per Crennan and Bell JJ, and Heydon J), the Tribunal’s reasoning and findings were not illogical. The Tribunal’s analysis and its conclusion were certainly within the scope of matters on which minds may differ. In the current case the Tribunal’s conclusion was logically probative of the evidence before it.

9. Nor for that matter is the Wednesbury test of assistance to the applicant. The Tribunal’s conclusion in the circumstances was not so unreasonable that no reasonable person could have come to the conclusion reached.

10. In all, the applicant is unable or unwilling to understand that the reason that the Tribunal rejected her application was that it found her not to be truthful or credible in her claims. Once the factual basis for her claimed fear of persecutory harm had been rejected, a finding open to the Tribunal on what was before it, the Tribunal’s conclusion that she did not have a well-founded fear naturally followed.

The Family

1. As to the other applicants, their claims depended on their mother’s claims and evidence. The Tribunal’s conclusion in relation to them was, in the circumstances, also open to it.

Conclusion

1. For the applicant to succeed, the Court would need to discern jurisdictional error. I cannot see such error. The application is dismissed.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: 

Date:  31 March 2011