SZQJI v Minister for Immigration - [2011] FMCA 841

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQJI & ORS v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 841

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicants claiming political persecution in Fiji – applicant studying in Australia under a Fijian Government scholarship which was cancelled – Tribunal finding that the applicant had not and would not suffer serious harm and that the scholarship cancellation was unrelated to the applicant’s political opinion – whether the Tribunal erred in finding that the applicant had not spoken publicly against the regime – whether the Tribunal erred in considering the applicant’s particular social group claim – whether there was a constructive failure of jurisdiction and whether the Tribunal decision was irrational or illogical considered.

Migration Act 1958 (Cth), ss.36, 91R, 414, 430

Abebe v Commonwealth of Australia (1999) 162 ALR 1
Applicant WAEE v Minister for Immigration (2003) 75 ALD 630
Minister for Immigration v SZLSP (2010) 187 FCR 362
Minister for Immigration v SZMDS & Anor (2010) 240 CLR 611
Minister for Immigration v SZOCT [2010] FCAFC 159
Minister for Immigration v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration v Yusuf (2001) 206 CLR 323
Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407
Rezai v Minister for Immigration [2001] FCA 1294
Thirukkumar v Minister for Immigration [2002] FCAFC 268

First Applicant:

SZQJI

Second Applicant:

SZQJJ

Third Applicant:

SZQJK

Fourth Applicant:

SZQJL

Fifth Applicant:

SZQJM

Sixth Applicant:

SZQJN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1285 of 2011

Judgment of:

Driver FM

Hearing date:

1 November 2011

Delivered at:

Sydney

Delivered on:

28 November 2011

REPRESENTATION

Counsel for the Applicant:

Ms T Baw

Solicitors for the Applicant:

Sarom Solicitors

Solicitors for the Respondents:

Mr I Temby
Minter Ellison

ORDERS

The amended application filed on 8 September 2011 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1285 of 2011

SZQJI

First Applicant

SZQJJ

Second Applicant

SZQJK

Third Applicant

SZQJL

Fourth Applicant

SZQJM

Fifth Applicant

SZQJN

Sixth Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 17 May 2011. The Tribunal affirmed decisions of a delegate of the Minister not to grant the applicants protection visas. There are six applicants. The first applicant made the relevant protection visa claims. He is the husband of the second applicant and the father of the remaining applicants who have all claimed as members of his family. I appointed the first applicant the litigation guardian of the third to sixth applicants. Any references in this judgment to the “applicant” are references to the first applicant.
The following statement of background facts is derived from the submissions of the Minister filed on 25 October 2011.
On 4 March 2006, the first applicant arrived in Australia from Fiji[1] to study at the University of Queensland[2].
[1] court book (“CB”) 3
[2] CB 305, [22]
The first applicant's studies were supported by a scholarship from the Fijian government, by whom he was employed at the Ministry of Agriculture, however that scholarship was apparently cancelled in 2008 after a coup took place in Fiji[3]. The applicant subsequently resigned from his employment with the government on 7 January 2010[4].
[3] CB 309, [35]
[4] CB 305, [22]
On 16 August 2010, the first applicant and each of his immediate family members (the second to sixth applicants) applied to the Minister’s Department (the Department) for a Protection (Class XA) visa[5]. In the first applicant's application he claimed that[6]:
The current military government will harm and mistreat me since I totally disagree and against undemocratic government and will not tolerate working under a non elected government under any circumstances.
[5] CB 1-58
[6] CB 12
On 13 December 2010, a delegate of the Minister wrote to the first applicant, inviting him to attend an interview with an officer of the Department on 21 January 2011[7]. That interview was subsequently rescheduled for 28 January 2011[8], which the first applicant attended[9].
[7] CB 143
[8] CB 159
[9] CB 177
On 9 February 2011, a delegate of the Minister refused the applicants' application for protection visas[10]. The first applicant was notified of this decision by letter dated 9 February 2011[11].
[10] CB 175
[11] CB 161
On 8 March 2011, the applicants sought review of the delegate's decision by the Tribunal[12].
[12] CB 186
On 30 March 2011, the Tribunal invited the applicants to appear before it on 11 May 2011 to give evidence and present arguments relating to the issues arising in their case[13]. The applicants attended that hearing[14].
[13] CB 220
[14] CB 242
On 17 May 2011, the Tribunal decided to affirm the delegate's decision not to grant the applicants protection visas[15]. The Tribunal notified the applicants of that decision by letter dated 17 May 2011[16].
[15] CB 302
[16] CB 301
The Tribunal made the following findings in rejecting the applicants’ refugee claims, which it succinctly summarised as arising from the first applicant's
claimed opposition to the military regime and his imputed political opinion arising from the cancellation of his scholarship and what followed; in particular his resignation and the apparently unresolved issue of his bond and potential impact on his employment prospects[17]:
[17] CB 319, [76]
The Tribunal did not accept that the cancellation of the first applicant's scholarship amounted to “serious harm” within the meaning of the Migration Act 1958 (Cth) (“the Migration Act”) and, in any case, did not accept that the cancellation of the scholarship was motivated by his political opinion or any other Convention reason[18]. The Tribunal found that:
a)the first applicant had received unsatisfactory course results immediately prior to his scholarship being cancelled[19];
b)the first applicant's claim that more favourable treatment was given to another scholarship holder because his uncle was in the army was mere conjecture on the first applicant's part[20];
c)despite the first applicant's claim that he had been told that the regime was aware that he had spoken against it, the first applicant gave evidence that he had not spoken against the regime publicly, nor ever joined a political party or organisation[21];
d)the first applicant appeared to have enjoyed the confidence of his government employer, as shown by the leave granted to him during the second half of 2009 and the work references provided in 2010 by the then Director and former Director of the Division in the Ministry of Agriculture where the first applicant had worked[22]; and
e)the first applicant had been able to travel between Fiji and Australia on three occasions after his scholarship was cancelled, with no apparent difficulty, suggesting that the first applicant was of no interest to the regime.
[18] CB 317, [66]
[19] CB 317, [66]
[20] CB 317, [66]
[21] CB 317, [67]
[22] CB 317, [68]
While the Tribunal accepted that the military regime has been sensitive to criticism and has acted against outspoken critics, and further accepted that the first applicant is opposed to the regime, it did not accept that the first applicant has taken any public role in the past in relation to his political opinion, nor would develop a political profile in the immediately foreseeable future that would bring him to the attention of the regime[23]. The Tribunal found that:
a)the first applicant's claim that an issue may exist between him and his employer over the non-payment of a bond relating to his cancelled scholarship was an administrative matter without a Convention nexus[24];
b)the first applicant had given evidence that he had had no involvement in political activity in Fiji[25];
c)the evidence before it suggested that the first applicant's employer wished to see him return to his employment in Fiji[26], including the first applicant's ability to return to his position without difficulty after his scholarship had been terminated and the fact that his Directors within the Ministry wrote “glowing” work references for him in the knowledge of his resignation[27], which suggested that his resignation had engendered no ill feeling and led the Tribunal to conclude that the first applicant's resignation would not attract undue interest[28]; and
d)nothing had happened to the applicant while he was working and living in Fiji[29].
[23] CB 318, [69]; CB 319, [77]
[24] CB 318, [71]
[25] CB 319, [78]
[26] CB 318, [69]
[27] CB 319, [78]
[28] CB 319, [78]
[29] CB 318, [71]; CB 319, [75]
The Tribunal accordingly concluded that[30]:
Having considered the applicant's claims individually and cumulatively, I do not consider that the applicant's fear of persecution for a Convention reason following his return to Fiji is well-founded, now and in the reasonably foreseeable future.
The Tribunal is not satisfied that any of the applicants is a person to whom Australia has protection obligations under the Refugees Convention. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b).
[30] CB 320, [80]-[81]

The present application

These proceedings began with a show cause application filed on

20 June 2011. An amended application was filed on 8 September 2011. The applicants rely upon that amended application. There are four grounds in that application:
Ground 1
The Tribunal fell into jurisdictional error by misdirecting itself in relation to Article 1A(2) of the Refugee Convention, or asking the wrong question, when it made the finding that it was not satisfied that the appellant had a well-founded fear of persecution for reason of his political opinion.
Particulars
The Tribunal concerned itself with whether the applicant spoke against the military regime “publicly” or whether the applicant had a “public” role in relation to his political opinion.
However, it failed to give proper consideration to the evidence that what was said by the applicant against the military regime (whether publicly or privately) is now known to the military.
Ground 2
The Tribunal fell into jurisdictional error when it failed to properly consider whether the applicant was a part of the social group of civil servants considered an opponent of the military regime in Fiji.
Particulars
(a)The applicant was a public servant in Fiji who had come to Australia on a scholarship granted by his employer.
(b)The Tribunal accepted that the applicant is opposed to the current military regime in Fiji.
(c)The applicant claimed that he has spoken against the military regime in small gatherings in Australia.
(d)The applicant claimed that what he said against the military regime was reported back to the government in Fiji and he was informed of this by a taskforce comprised of military personnel, within his employer.
(e)The applicant claimed that the taskforce said that as a consequence of him speaking against the military regime he was not given a second chance after his scholarship was terminated by his employer, which was unlike the treatment of two other Fijian students.
(f)The applicant claimed that when he returned to Fiji briefly he had witnessed and heard what the taskforce had done to other colleagues, and he feared the same treatment now that the taskforce was aware that he was opposed to the military regime.
(g)The Tribunal made no credibility finding against the applicant.
(h)The Tribunal made no findings that it did not believe what was alleged by the applicant in (c) to (f) above.
(i)In the absence of findings in (g) and (h) above, the Tribunal failed to properly consider the applicant as a part of the social group of civil servants considered an opponent of the military regime.
Ground 3
The Tribunal fell into jurisdictional error when it failed to set out its finding on a material question of fact contrary to s.414 of the Migration Act 1958 (Cth).
Particulars
(a)Refer to the particulars (a) to (f) in Ground 2 above.
(b)The failure of the Tribunal to make any finding as to whether the evidence in (c) to (e) above was correct or credible was a failure to make a finding on a material question of fact.
Ground 4
The Tribunal’s finding that the applicant had not taken any public role in the past in relation to his political opinion and he would not develop a political profile that would bring him to the attention of the regime in the future, was irrational, illogical and not based on findings and inferences of fact supported on logical grounds.
Particulars
(a)The applicant claimed that what he said against the military regime was reported back to the government in Fiji and he was informed of this by a taskforce comprised of military personnel within his workplace.
(b)The applicant claimed that when he returned to Fiji briefly he had witnessed and heard what the taskforce had done to other colleagues, and he feared the same treatment now that the taskforce was aware that he was opposed to the military regime.
(c)The Tribunal made no findings that it did not believe what was alleged by the applicant in (a) to (b) above.
(d)The Tribunal made a finding that the applicant had been employed in the public sector in Fiji before coming to Australia and he had returned to that employment without difficulty for over a month in 2009.
(e)Yet, the Tribunal ignored the evidence that during his brief return to Fiji, he kept a very low profile.

The evidence and submissions

I received as evidence the court book filed on 29 July 2011 and a supplementary court book filed on 11 August 2011. I also received the affidavit of Hirstroma Singh made on 26 October 2011, to which is annexed a transcript of the oral hearing conducted by the Tribunal on 11 May 2011.
The applicants contend that the Tribunal misdirected itself or asked itself the wrong question when it concerned itself with the question of whether the applicant had spoken against the Fiji military regime “publicly” or whether the first applicant had a “public role” in relation to his political opinion. There was some confusion in his evidence given to the Tribunal as to whether his political statements were made in public or private but the Tribunal took the view that they were made in private.
The applicants further contend that the Tribunal erred by failing to set out its findings on material questions of fact in breach of s.430(1)(c) of the Migration Act. During the course of argument counsel for the applicants agreed that the third ground in the amended application should be further amended to assert a breach of s.414 rather than s.430.
Finally, the applicants contend that the Tribunal’s decision is irrational, illogical and not based on findings and inferences of fact supported on illogical grounds.
The Minister contends that the grounds in the application attempt merits review. The Minister submits that the Tribunal understood the first applicant’s claims and dealt adequately with his claim of imputed political opinion. The Tribunal also considered the first applicant claim as a particular social group claim. The first applicant did not assert any harm amounting to persecution in the past and the cancellation of the first applicant’s scholarship was plainly not politically motivated. There was no reliable evidence before the Tribunal of any knowledge on the part of the Fijian regime of the first applicant’s criticism of it. The Minister contends that the Tribunal had regard to all relevant considerations and all elements or integers of the applicants’ claims. The Minister disputes that the Tribunal decision was illogical, irrational or not based on findings and inferences of fact supported on logical grounds. In particular:
a)the Tribunal found, in relation to the applicant’s claims premised on his membership of a particular social group, that:
i)the applicant had not spoken out against the military regime publicly;
ii)the applicant did not otherwise have a profile that was likely to attract adverse attention from the regime;
iii)the applicant’s employer wished to see him return to his employment in Fiji;
iv)the applicant had not been harmed in Fiji in the past;
v)the applicant’s resignation from his employment was not related to any Convention reason.
b)the above findings provided a cogent basis for the Tribunal’s finding that the applicant would not be of any interest to the authorities in Fiji if he returned there on the basis of any imputed political opinion.

Consideration

Grounds 1 and 2: application article 1A(2) of the Refugees Convention

Grounds 1 and 2 of the applicants' amended application allege that the Tribunal misdirected itself in relation to Article 1A(2) of the Refugees Convention in determining whether the first applicant had a well-founded fear of persecution by reason of his political opinion and/or by reason of his membership of a particular social group comprising civil servants considered to oppose the military regime in Fiji. The essence of the first applicant's claim is that the Tribunal allegedly focussed solely on whether the first applicant had spoken against the military regime publicly and/or whether he had a public role in relation to his political opinion, rather than on the question whether the first applicant's opposition to the regime was known to it.
The Minister submits that the Tribunal’s reasons for decision show that the Tribunal properly directed itself in relation to Article 1A(2) of the Refugees Convention, including by asking itself whether the first applicant had a well-founded fear of persecution by reason of his political opinion and/or by reason of his membership of a particular social group. The Minister submits that the Tribunal identified the law relevant to its decision and correctly applied that law to the facts which it found to exist.
The Minister’s submissions address the legislative background relevant to the applicants' claim, including Article 1A(2) of the Refugees Convention. The Tribunal was required to consider the terms of Article 1A(2) by virtue of the fact that s.36(2)(a) of the Migration Act provides that a criterion for the grant of a protection visa is that an applicant is “a non citizen ... to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol” and by the fact that Australia has protection obligations under the Refugees Convention to “refugees”, which is a term defined in Article 1A(2).
The Minister submits that it is clear that the Tribunal understood these considerations by the terms of [6] to [19] of its reasons for decision[31] and, in particular, at [10] of its reasons for decision which sets out the definition of a refugee as being a person who [CB 304].:
owing to 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, is 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
[31] CB 303-305

The Minister submits that it is also clear that the Tribunal understood the first applicant's individual claims of persecution, including those based on his membership of a group comprising civil servants who are opposed to the military regime in Fiji. In particular:
a)the Tribunal accepted that the first applicant was a member of the public service[32] prior to his resignation in January 2010[33] and understood the first applicant's claim that he had worked for the Ministry for Agriculture in Fiji since 1987[34];
b)the Tribunal correctly understood the first applicant's claims as being based on his “opposition to the military regime and his imputed political opinion ...”[35]; and
c)at [57]-[62] of its reasons for decision, the Tribunal identified particular social groups who are of interest to the authorities in Fiji, which relevantly include:
i)“high profile, vocal critics of the government, including journalists, lawyers, or high-profile opponents and activists”[36]; and
ii)“public servants perceived to be critics of the Interim Government”[37].
[32] CB 319, [75]
[33] CB 318, [69]
[34] CB 309, [31]
[35] CB 319, [76]
[36] CB 314, [57]
[37] CB 316, [62]
As to the second of the above categories, the Tribunal referred to country information which stated that “non-vocal opponents of the regime could potentially be subject to monitoring and intimidatory threats. If the individual is a public servant, harm could also involve reduced opportunities for promotion or other career development, or possibly demotion or dismissal”.
The Tribunal did not consider whether these forms of harm are sufficiently serious as to come within the terms of s.91R of the Migration Act, however the Minister submits that it was not required to do so as it found that:
a)the first and second applicants had both resigned from their positions with the government (and thus potential harm in the form of a demotion or dismissal could not arise)[38]; and
b)in any case, the first applicant did not have a well-founded fear of persecution based on his claimed opposition to the military regime and his imputed political opinion[39]. It found that although the first applicant is opposed to the regime, he has not taken any public role in the past in relation to his political opinion, nor would he develop a political profile in the immediately foreseeable future that would bring him to the attention of the regime[40].
[38] CB 318, [70]
[39] CB 320, [80]
[40] CB 318, [69]; CB 319, [77]
The Minister submits that these were factual findings that were within the jurisdiction of the Tribunal to make.
I accept the Minister’s submission that, although the applicants have pleaded Grounds 1 and 2 of their amended application as seeking review based on an alleged misdirection in relation to Article 1A(2) of the Refugee Convention, by asking itself the wrong question and/or failing to consider whether the first applicant was a member of the identified social group, those grounds in fact seek to challenge the factual findings of the Tribunal. The applicants' submissions take issue with the Tribunal’s discussion about and findings in relation to whether the first applicant has developed or will develop a public profile concerning his opposition to the military regime. The submissions claim that:
a)the Tribunal should have concerned itself with the question whether the first applicant had in fact come to the attention of the regime; and
b)the Tribunal erroneously found that the first applicant had not spoken publicly.
I accept that, absent illogicality (which is raised in Ground 4 of the amended application), findings of fact are within the proper exercise of the Tribunal to make: Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 per McHugh J.

A challenge to the factual findings of the Tribunal is not a permissible ground of judicial review: Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 53-54 per Gummow and Hayne JJ; Minister for Immigration v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ and 292 per Kirby J.
Further, I accept that the claims made by the applicants in relation to the Tribunal’s factual findings are without substance in any event. Relevantly:
a)the Tribunal acknowledged the first applicant's claim that he had been told that the regime was aware he had spoken against it[41] but, without determining the truth of that claim, found that there was no evidence to support his claim that he was likely to suffer persecution as a result[42], which was the critical question it was required to address; and
b)the transcript of the Tribunal’s hearing prepared by the applicants' solicitors supports the Tribunal’s recitation of the first applicant's evidence at the hearing before it that:
i)“When asked whether he spoke in public against the regime, the applicant said that it was just in general conversation with other Fijian people in Australia”[43];
ii)“The Tribunal asked the applicant whether he has ever spoken against the regime in public. The applicant said that he had said things in small private gatherings”[44].
[41] CB 317, [67]
[42] CB 318, [69]; CB 319, [77]
[43] CB 310, [37]
[44] CB 310, [41]
As to the latter issue, I accept the Minister’s submission that:
a)not only do the passages referred to by the applicants at [17] and [18] of the applicants' submissions show that the first applicant's evidence was that the only time he had spoken “publicly” in relation to his opposition to the regime was when he was talking about the government in private gatherings with other Fijian people, as the Tribunal found; but
b)at page 28 of the transcript, the first applicant confirms that evidence in the following exchange:
[Member]I think I asked you before and I think we sort of got a bit side tracked. About whether or not you had spoken out publicly against the regime or whether you have ever joined a political group or anything like that. Can you tell me about that?
…
[Applicant] Dear Member, I haven't been in a public place, big public place. Just I have mentioned before, just gatherings.
[Member] So just in sort of private gatherings?
[Applicant] Yeah, private gatherings, sitting around drinking and just talking about what's wrong. Because we've been getting emails from friends, this is what's happening and oh I got an email from …
I reject Grounds 1 and 2 of the amended application.

Ground 3 – Compliance with s.414 of the Migration Act

Having regard to the former terms of Ground 3, the Minister correctly submits that the Tribunal complied with its obligations under s.430(1)(c) of the Migration Act and that, even if it did not, a failure to do so would not give rise to jurisdictional error: Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at [70]; Minister for Immigration v Yusuf (2001) 206 CLR 323 [8]-[10]; [62]-[69] and [75]; Minister for Immigration v SZLSP (2010) 187 FCR 362 at [46].
The ground is now put as a constructive failure of jurisdiction and a breach of s.414 because of a failure to make necessary factual findings. At [39] of the applicants' submissions, the applicants allege that the Tribunal failed to make findings in relation to four matters, namely:
a)the first applicant claimed that he has spoken against the military regime in small gatherings in Australia;
b)the first applicant claimed that what he said against the military regime was reported back to the government in Fiji and he was informed of this by someone from the taskforce comprised of military personnel, within his employer;
c)the first applicant claimed that the taskforce said that as a consequence of him speaking against the military regime he was not given a second chance after his scholarship was terminated by his employer, which was unlike the treatment of two other Fijian students; and
d)the first applicant claimed that when he returned to Fiji briefly he had also witnessed and heard what the taskforce had done to other colleagues, and he feared the same treatment now that the taskforce was aware that he was opposed to the military regime.
The Minister submits, and I accept, that the Tribunal addressed the above claims of the first applicant in the following ways:
a)the Tribunal accepted that the first applicant is opposed to the regime but found that he had not taken a public role in relation to his political opinion, nor was he likely to develop a profile in the foreseeable future that would bring him to the attention of the regime[45]. The Tribunal did not accept that the first applicant had spoken out against the regime publicly “or has a profile that is likely to attract adverse attention from the regime”[46]; and
b)the Tribunal acknowledged the first applicant's claim that he had been told that the regime was aware he had spoken against it[47] but, without determining the truth of that claim, found that there was no evidence to support his claim that he was likely to suffer persecution as a result[48];
c)the first applicant's claim that the decision not to give him a second chance after his scholarship was terminated was politically motivated, having regard to his claim that more favourable treatment was given to two other scholarship holders, one of whom allegedly reported the applicant for speaking out against the regime and whose uncle was in the military[49] was rejected by the Tribunal on the basis that the first applicant had no evidence to support his claim. The Tribunal found that the claim was mere conjecture on his part[50]; and
d)The Tribunal further found that there were a number of other elements of the first applicant's evidence which contradicted the first applicant's claim that the decision to cancel his scholarship was politically motivated, being the facts that:
i)the first applicant “enjoyed the confidence and good opinion of his employer”, as evidenced by the approval of his leave in the second half of 2009, the approval for him to take the leave abroad and the work references provided by the current and former Directors of the Division of the Ministry of Agriculture where the first applicant had worked; and
ii)the first applicant travelled between Fiji and Australia on three occasions after his scholarship was cancelled with no apparent difficulty[51].
[45] CB 319, [77]
[46] CB 318, [69]
[47] CB 317, [67]
[48] CB 318, [69]; CB 319, [77]
[49] CB 310, [37]
[50] CB 317, [66]
[51] CB 317, [68]
The Tribunal’s duty of review does not require it to address each (or any) of the claims repeated at [36] above, except insofar as it considered that those matters raised facts which it considered material to the decision which it made and the reasons it had for reaching that decision: Minister for Immigration v Yusuf (2001) 206 CLR 323 at [67]-[68] per McHugh, Gummow and Hayne JJ.
I accept that the Tribunal addressed the critical question s.36(2) of the Migration Act required it to consider, being whether the first applicant had a well-founded fear of being persecuted as a result of his political opinion. The Tribunal found that the first applicant does not hold such a fear[52]. Those matters were the questions of fact the Tribunal considered material to its decision, which it set out at [66] to [78] of its reasons for decision.
[52] CB 320, [80]
I reject Ground 3 in the amended application.

Ground 4 – illogicality and irrationality

Ground 4 of the amended application alleges that the Tribunal’s finding “that the applicant had not taken any public role in the past in relation to his political opinion and he would not develop a political profile that would bring him to the attention of the regime in the future, was irrational, illogical and not based on findings and inferences of fact supported on logical grounds”. There is no substance to this assertion. The Minister’s submissions deal comprehensively with this ground and I adopt those submissions.
In Minister for Immigration v SZMDS & Anor (2010) 240 CLR 611 (SZMDS) Crennan and Bell JJ at [94] considered whether an “illogicality”, “irrationality” or “lack of articulation” in a finding of jurisdictional fact could constitute jurisdictional error. Relevantly, after considering earlier decisions in relation to the scope of concepts of “illogicality” and “irrationality” in decision-making their Honours concluded at [130] – [131] that:
In the context of the Tribunal's decision here, " illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion' (emphasis added).
At [135], their Honours further concluded that:
A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
SZMDS was cited in Minister for Immigration v SZOCT [2010] FCAFC 159 (SZOCT) at [19] as supporting an approach which requires an answer to the following question in a case of claimed illogicality, namely:
whether the opinion reached by the Tribunal as to its state of satisfaction under s.65 of the Migration Act 1958 (Cth) was one that could be formed by a reasonable person or:
… was based on findings or inferences of fact which were not supported by some probative material or logical grounds: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 657 [145]; see also Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at [34]' (at [18]).
The applicants' submission is that the decision of the Tribunal was illogical because:
a)the Tribunal allegedly failed to understand why the first applicant kept a low profile during his stay in Fiji in 2009, in circumstances where the first applicant's evidence was that:
i)what he said against the military regime was reported back to the government in Fiji and he was informed of this by a taskforce comprised of military personnel within his workplace; and
ii)when he returned to Fiji briefly he had witnessed and heard what the taskforce had done to other colleagues, and he feared the same treatment now that the taskforce was aware that he was opposed to the military regime; and
iii)the Tribunal falsely equated the consequences of the first applicant visiting Fiji for short periods of time to the consequences for him of staying there permanently.
The Tribunal’s decision was not illogical, in any of the ways described by the applicants. The Tribunal acknowledged the first applicant's claim that he had been told that the regime was aware he had spoken against it[53] but, without determining the truth of that claim, found that there was no evidence to support his claim that he was likely to suffer persecution as a result[54], which was the critical issue it was required to address.
[53] CB 317, [67]
[54] CB 318, [69]; CB 319, [77]
The Tribunal’s finding that the first applicant was not likely to suffer persecution was supported by probative material and logical grounds. The Tribunal found that:
a)the cancellation of the first applicant's scholarship was not motivated by his political opinion or any other Convention reason, but rather appeared to have been the consequence of unsatisfactory course results[55]. This was a factual finding which was reasonably open on the material before the Tribunal;
b)the first applicant's claim that more favourable treatment had been given to another scholarship holder was mere conjecture on his part[56]. This was a factual finding which was reasonably open on the material before the Tribunal;
c)the first applicant appeared to have continued to enjoy the confidence of his government employer. This was a factual finding which was reasonably open on the material before the Tribunal, including the fact that leave was granted to him during the second half of 2009 and the fact that favourable work references were provided to the first applicant in 2010 by the then Director and the former Director of the Division in the Ministry of Agriculture where the first applicant had worked[57];
d)the first applicant's claim that an issue may exist between him and his employer over the non-payment of a bond relating to his cancelled scholarship was an administrative matter without a Convention nexus[58]. This was a factual finding which was reasonably open on the material before the Tribunal;
e)although the first applicant is opposed to the military regime in Fiji, he has not taken any public role in the past in relation to his political opinion, nor would he develop a political profile in the immediately foreseeable future that would bring him to the attention of the regime[59]. This was a factual finding which was reasonably open on the material before the Tribunal, including the first applicant's evidence that he had not spoken against the regime publicly, nor ever joined a political party or organisation[60], nor had any involvement in political activity in Fiji[61];
f)the evidence before the Tribunal suggested that the first applicant's government employer wished to see him return to his employment in Fiji[62], including the first applicant's ability to return to his position without difficulty after his scholarship had been terminated and the fact that his Directors within the relevant Ministry wrote favourable work references for him in the knowledge of his resignation[63]; and
g)nothing had happened to the first applicant while he was working and living in Fiji[64].
[55] CB 317, [66]
[56] CB 317, [66]
[57] CB 317, [68]
[58] CB 318, [71]
[59] CB 318, [69]; CB 319, [77]
[60] CB 317, [67]
[61] CB 319, [78]
[62] CB 318, [69]
[63] CB 319, [78]
[64] CB 318, [71]; CB 319, [75]
Having regard to the above, I find that:
a)the findings the Tribunal reached were reasonably open on the material before it; and
b)the first applicant's ability to return to Fiji after his opposition to the military regime had allegedly become known to the regime was but one of several facts relied on by the Tribunal in reaching its decision that the first applicant was not at risk of harm from the regime and that there was nothing illogical in the Tribunal’s reliance on that fact in the context of its other reasons.

Further, the Tribunal did not misunderstand the first applicant's evidence as to why he kept a low profile during his trip to Fiji in 2009. Paragraph 45 of its reasons for decision[65] states in part:
The applicant said that on the trip in June/July 2009 he tried to seek a further review of the decision regarding his scholarship and when this failed, he applied for his leave and kept a low profile so as not to arouse any suspicions that he did not support the government.
[65] CB 312
This is not inconsistent with the first applicant's evidence at the hearing before the Tribunal, at which he said (pages 19 and 20 of transcription produced by applicants' solicitors):
[Member]Okay. Now you said you went back in 2009 and that was essentially to try and sort out things. To try to get the extension of time till the end of the year is that correct?
[Applicant]Yes ...
[Member]You weren't successful?
[Applicant]No I was not successful then.
[Member]From then I kept my profile very low. I didn't want to say anything. I went back and resumed duties for more than a month
The first applicant's evidence makes more sense if it is taken in the way the Tribunal understood it than that submitted by the applicants. If the first applicant's opposition to the regime was in fact known, there would have been little point in “keeping a low profile”, given that he was working for the regime itself.
In any event, even if the Tribunal misunderstood this piece of evidence, such a misunderstanding would not reveal a jurisdictional error on its part because:
a)it did not form a basis for any of the Tribunal's findings which supported its conclusion that the first applicant would not be persecuted by the regime; and
b)an error of fact based on a misunderstanding of evidence will not constitute jurisdictional error, so long as the error, whichever it may be, does not mean that the Tribunal has failed to consider the first applicant's claims: Applicant WAEE v Minister for Immigration (2003) 75 ALD 630; Thirukkumar v Minister for Immigration [2002] FCAFC 268; Rezai v Minister for Immigration [2001] FCA 1294. There is no evidence that the Tribunal misunderstood the first applicant's claims by reasons of any misunderstanding of the applicant's evidence in this regard.
I reject Ground 4 of the amended application.

Conclusion

The applicants have failed to establish any jurisdictional error in the Tribunal decision. The decision of the Tribunal is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Driver FM

Date: 28 November 2011