SZQUP v Minister for Immigration
[2012] FMCA 276
•4 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQUP v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 276 |
| MIGRATION – Review of decision of Refugee Review Tribunal – persecution – where applicant HIV positive female from the Ukraine – whether Tribunal failed to consider persecution as member of social groups of women living in Ukraine/Eastern Europe, people living with HIV/Aids, people living with HIV/AIDs in Ukraine/Eastern Europe and perceived membership of social groups of sex workers and injecting drug users in the Ukraine – whether Tribunal failed to consider applicant’s claim of inability to have family – where Tribunal found no persecution of particular social groups – whether Tribunal required to consider psychological persecution to members of groups – whether Tribunal considered whether HIV discrimination laws “effective state protection”. MIGRATION – Persecution – whether Tribunal erred in finding applicant could avoid discrimination through not disclosing HIV status – jurisdictional error. MIGRATION – Independent country information – where issue previously raised by delegate – where s.424A exclusions apply equally to s.424AA of Migration Act 1958 (Cth) – whether Tribunal required to grant additional or reasonable time to respond to information – whether procedural unfairness. |
MIGRATION – Interpreters – where, by agreement, interview conducted in English – whether standard of interpretation so inadequate as to prevent applicant from giving evidence – whether hearing not in accordance with s.425 of Act – whether lack of use of interpreter affected finding on consistency.
MIGRATION – Subjective fear of persecution –where finding partly based on applicant’s return to the Ukraine following HIV diagnosis – where applicant not previously persecuted – where disease for which applicant claims fear of persecution currently asymptomatic – where other factual grounds for finding – conclusions as to fact – whether Wednesbury unreasonableness – whether Tribunal required to consider subjective fear in respect of each claim made by applicant – whether Tribunal made finding on basis of applicant’s articulated claims.
| Migration Act 1958 (Cth), ss.422B, 424A, 424AA |
| Appellant S395/2002 v Minister for Immigration & Anor 203 ALR 112 SZMCD v Minister for Immigration & Anor [2009] FCAFC 46 SZBEL v Minister for Immigration & Anor [2006] 228 CLR 152 Appellant P119/2002 v Minister for Immigration & Anor [2003] FCAFC 230 SZQYM v Minister for Immigration & Anor [2007] FCA 1293 Singh v Minister for Immigration & Anor [2001] FCA 1376 |
| Applicant: | SZQUP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2451 of 2011 |
| Judgment of: | Raphael FM |
| Hearing date: | 22 March 2012 |
| Date of Last Submission: | 22 March 2012 |
| Delivered at: | Sydney |
| Delivered on: | 4 April 2012 |
REPRESENTATION
| Solicitors for the Applicant: | HIV/AIDS Legal Centre |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $6,250.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2451 of 2011
| SZQUP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Ukraine who first arrived in Australia on 31 July 2010 [stated to be 31 August 2010 in her PVA statement]. She departed Australia on 28 December 2010 and returned on 3 February 2011. On 29 October 2010 the applicant applied for a protection (Class XA) visa. On 23 June 2011 a delegate of the Minister refused to grant her a protection visa and on 8 July 2011 she applied for review of that decision from the Refugee Review Tribunal. She attended a hearing before the Tribunal together with her advisors and witnesses. On 22 September 2011 the Tribunal determined to affirm the decision not to grant a protection visa.
During the first of the applicant’s two stays in Australia she was diagnosed with HIV. She made her application for a protection visa on the basis of the treatment which she alleged she would receive in the Ukraine as a female HIV sufferer and as a member of a number of possible particular social groups being:
·Women in Ukraine/Eastern Europe
·People living with HIV/AIDS
·People living with HIV/AIDS in Ukraine/Eastern Europe (PLWHA)
·Perceived membership of a particular social group of “injecting drug users in Ukraine (a presumption based upon perceptions about PLWHA; and
·Perceived membership of a particular social group of “sex workers in Ukraine” (a presumption based upon perceptions about PLWHA).
In a statement provided to the department with a statutory declaration dated 10 April 2011 the applicant gave the background of the diagnosis of her condition and her relationship with the doctor who gave her that diagnosis. That experience was not a happy one:
“The experience I had with Dr L brought to the forefront what I would expect to face upon my return to Ukraine. However, had this occurred in Ukraine I would not have had the ability to seek assistance elsewhere and have a better response.”[1]
[1] CB 47
In the statutory declaration the applicant then dealt with her fears of returning to Ukraine. She stated that she feared stigmatisation and discrimination to the extent that she would not have the support of family or friends. She was afraid of persecution from her friends, her community, her family and the government when her status was inevitably disclosed. She stated that the inevitability of the disclosure was due to the lack of privacy protection by the government and that she would not be able to obtain work. She stated that she feared that she would be denied the ability to have children and that she would be persecuted as a result of being assumed to be a sex worker or an injecting drug user because most people in the Ukraine believed that it was only these classes of persons who were infected by the disease. She said that she did not know of any places that could treat HIV in Ukraine and she was afraid to tell her family about her status because they would think badly of her. She stated that she had a psychology degree and had been a social worker and that during her studies she remembered that she had to conduct interviews with people who were HIV positive and that those persons had told her terrifying stories of how they were treated because of their illness:
“A woman who is HIV positive is not able to have a baby in a normal hospital and she can be refused assistance at a hospital. Therefore if I had a baby in Ukraine there would be a risk I would pass HIV onto my child during childbirth which I would have to do naturally and not by Caesarean section as is recommended to avoid transmission.”[2]
[2] CB 47
In the statement the applicant spoke further about the difficulties of finding treatment in the Ukraine and referred to a system of medical cards where illnesses and diseases were recorded that could be viewed by doctors and nurses. She said that this would indicate her HIV status. She told that although she had a university degree in social work she had worked as a manicurist and that any employer would look at her medical book and that would expose her status and she would not obtain employment. She stated that in the Ukraine there was no social welfare system and so without her family and friends to support her she would have nothing and would not be able to be employed. She stated that special anti-discriminatory laws protecting people living with HIV/AIDS do not exist in the Ukraine.
The interview with the Tribunal was conducted with the aid of an interpreter and at the beginning of the interview the following exchange took place:
“TM:And madam interpreter good morning to you as well. Um I understand from the hearing attendant that you are happy to have most of the hearing conducted in English?
APP:Yes is ok.
…
TM:Ok, just before we start, so I’m speaking to you without an interpreter. It’s it’s very important that we understand each other this morning. So if at any stage you have having difficulty understanding what I’m saying, feel free to use the interpreter. That’s what she’s there for.
APP:yes.
TM:and and I will do the same if I/m having any difficulties understanding you.”[3]
[3] [T1]
As the interview proceeded the transcript notes discussions between the applicant and the interpreter before questions were answered. At [T22] the applicant states, after a break during which the Tribunal heard evidence from her two witnesses, that she would like to speak through the interpreter and this occurs. Regrettably, the transcript ends at [T24] because the tape thereafter became inaudible.
During the course of the interview the Tribunal put to the applicant certain independent country information including information contained in a June 2011 document known as “HIV policy assessment; Ukraine” prepared by the US Agency for International Development. That report indicated that a new law in relation to people living with HIV/AIDs was signed in January 2011. At [36] [CB 205] the Tribunal refers to the summary of the report found at page 8 of the document:
“[36]The Tribunal put to the applicant information contained in the June 2011 HIV Policy Assessment: Ukraine prepared as part of the Health Policy Project by the United States Agency for International Development. That report indicated that a new law in relation to people living with HIV/AIDS was signed in January 2011. The report included the following summary at page 8:
· 1991 and 2010 HIV/AIDS laws prohibit discrimination based on HIV status.
· Infringement of individuals’ rights based on discrimination is considered a crime.
· Constition (sic) and HIV/AIDS law guarantee a citizen’s rights to bring a case or complaint to court.
· Criminal Code protects confidentiality of PLHIV from disclosure of HIV status by a medical worker.
[37]The report goes on at page 9 to state that article 16 of the 2010 HIV/AIDS law prohibits discrimination against PLHIV and their families on the grounds of their HIV status by employers or potential employers.
[38]The Tribunal indicated that in the event that the applicant suffered discrimination as a result of having HIV, she would have legal redress. The Tribunal also indicated that discrimination could be expected to reduce over time as a consequence of the law.”
The Tribunal also put to the applicant information contained in a document entitled “Social Security Programs throughout the world; Europe 2008” which indicated that sickness benefits were available to persons in the Ukraine.
There are certain other paragraphs of the Tribunal’s decision record that are important to reproduce in order to understand the submissions made by the applicant in this matter.
At [47] [CB 206] the Tribunal said:
“[47]The Tribunal put to the applicant that she could largely avoid discrimination in the Ukraine by not disclosing her HIV status. As the applicant had said she did not wish to disclose her HIV status to persons in Australia, this would not require behavioural modification on her part. The applicant stated that people would find out somehow. They would ask questions when she became sick, or they would see her pills.”
And at [48] and [49]:
“[48]The Tribunal noted that the applicant has visited the Ukraine since the lodgement of her protection visa application, and had indicated during the hearing that she wished to visit the Ukraine again in the future. The Tribunal put to the applicant that in those circumstances it might not accept that she has a subjective fear of persecution. The applicant stated that that she did not know that she was going to be a refugee. She wants to be here; she is not running from her country.
[49]The Tribunal put to the applicant that her answer suggested that her prime motivation in lodging a protection visa application was to stay in Australia for the better medical treatment which is available and to be with [her partner]. The applicant agreed with this. After a pause, she added that if she went back she might have problems in the future when she became ill, but was not sure how long that would be.”
After the Tribunal had put the applicant on notice of the independent country information of the legislative changes her representative asked for further time to lodge written submissions:
“[64]The Tribunal declined to allow the representative time to lodge further written submissions following the hearing. The Tribunal observed that the law changes had taken place in January 2011, and that the hearing invitation had been issued some weeks before the hearing (on 1 August 2011). The Tribunal also considers that this matter was adequately canvassed at the hearing, and the representative had made submissions on the issue. It was not otherwise made clear to the Tribunal what other issues the representative wished to canvass. The Tribunal stated that the representative had adequate time to prepare any submissions prior to the hearing, and noted that it had the benefit of her detailed submissions to the Department.
[65]The representative also requested the Tribunal delay its decision for a week to allow the applicant to present any further evidence which may not have occurred to her during the hearing. The Tribunal notes that it had asked the applicant several times whether there was any other information she wished to present, and it has had the benefit of the detailed statutory declaration set out above. In those circumstances, the Tribunal declined to specify when it would make its decision.”
The Tribunal’s findings and reasons in the matter were relatively short and the substantive grounds for rejecting the application are set out below:
“[67]The applicant has provided a copy of a Ukrainian passport issued in her name on 2 November 2011. The Tribunal accepts that the applicant is a national of the Ukraine and has assessed her claims against the Ukraine as her country of nationality.
[68]the Tribunal does not accept that the applicant has a subjective fear of persecution if she returned to the Ukraine. The applicant has returned to the Ukraine for a period of approximately 1 month since she lodged her protection visa application, and wishes to return in the future. The applicant accepted that her primary motivation in lodging a protection visa application was to remain in Australia to obtain better medical treatment and to stay with her partner. She stated that she was not running from the Ukraine, but rather wanted to be in Australia. It is apparent from the evidence of the applicant and her representative that a protection visa application was only lodged after it became apparent that this was the only visa application she could lodge onshore.
[69]After she agreed that her primary motivation in lodging a protection visa application was as set out in the preceding paragraph, the applicant added that after a pause that she was also concerned that she would have problems at an unascertained time in the future. Later in the hearing, after an adjournment, the applicant stated that she was terrified of returning to the Ukraine as she had HIV. The Tribunal finds that these statements were afterthoughts, and made only to strengthen her refugee claims.
[70]The Tribunal finds that the entirety of the claims made by the applicant were adopted only after research for the purposes of the protection visa application and are not genuinely held by the applicant. The Tribunal does not consider that her return to the Ukraine and desire to visit in the future, in particular, are consistent with the fear which she claims. The Tribunal considers that the applicant’s motivation for making the protection visa application is to stay in Australia so that she can continue her relationship with the applicant and access a higher standard of medical treatment, and that she had no onshore options to do this other than lodging a protection visa application.
[71]The Tribunal notes that the High Court held in Chan v MIEA (1989) 169 CLR 379 that ‘well-founded fear’ involves both a subjective and objective element. In Iyer v MIMA [2000] FCA 1788 (Heerey, Moore & Goldberg JJ, 15 December 2000) the Full Federal Court affirmed that once the Tribunal rejects an applicant’s claim that there is a subjective fear, it is not necessary to determine whether the non-existent fear was well-founded. On this basis the Tribunal finds that the applicant does not have a subjective fear of persecution. Accordingly, the Tribunal finds that the applicant does not have a well-founded fear of persecution in this basis.”
At [72] the Tribunal notes:
“[72]Although it is not necessary to consider the applicant’s claims further, the Tribunal notes that it does not in any case accept that the applicant has an objective fear of persecution. The reasons for this follow.”
The Tribunal then deals with the gravamen of the applicant’s claims in what Mr Temby, who appears for the Minister, accurately described as “short form”, indicating that the changes in the law meant that if the applicant suffered the discrimination she claimed by the publication of her medical condition including her inability to find employment she could seek redress. The Tribunal found that whilst the availability of treatment for people with HIV in the Ukraine was inadequate this was a resource issue and not a convention one. The Tribunal was not satisfied that the applicant would be left in a position where she could not support herself and pointed to the availability of some social security payment. It did not accept that the applicant’s family or all of the family would cease contact with her and noted that she had said that she could cope emotionally on her own. In regard to the various particular social groups formulated by the applicant’s representatives the Tribunal said:
[77] “Based upon the above findings, the Tribunal does not find that women or people living with HIV in Ukraine are at risk of persecution. The Tribunal finds that the applicant would not be perceived as being an intravenous drug user or sex worker. The applicant gave evidence that she was not in fact such a person. She also gave evidence that she does not wish to tell anyone in Australia or in the Ukraine about her HIV status. By not disclosing her HIV status except to medical workers, which would require no behavioural modification on her part, the applicant would preclude such perceptions from arising. The Tribunal has dealt with the issue of disclosure by medical workers earlier. In the absence of disclosure, the Tribunal finds that there is no real chance that the applicant would be discriminated against by an employer.”
In January 2012 the applicant filed an Amended Application in this court seeking review of the decision of the Tribunal. There were four grounds of application. The first was:
“1.The Second Respondent failed to conduct a review of the decision by entirely failing to consider integers of the Applicant’s claims within the meaning of s.91R of the Migration Act 1958.”
There were four sets of particulars to this ground. The first related to claims arising due to the applicant’s perceived membership of the particular social groups of sex workers in the Ukraine and injecting drug users in the Ukraine. The second related to the applicant’s claims of her inability to have a family. The third related to her claim that the persecution on the basis of membership of the various formulations of social groups or perceived social groups amounted to psychological harm and the fourth was the failure to consider the claim that laws in relation to HIV discrimination and privacy in existence in the Ukraine do not amount to effective state protection. If one looks at the particulars of the first claim, which are set out below, one will see that they are, in effect, argumentative as to the manner of the Tribunal’s reasoning. This is to seek an impermissible form of merits review. Even the particular found in (v) below does not assist the applicant in relation to this claim because I cannot see it could upset the Tribunal’s conclusions from the applicant’s evidence. I am unable to see a jurisdictional error in these particulars:
“a.Claims arising due to the Applicant’s perceived membership of the particular social group of sex workers in Ukraine and injecting drug users in Ukraine;
i.The Applicant claimed that she would be persecuted as a result of being presumed to be a sex worker and/or as an injecting drug user, a presumption based upon being a HIV positive woman in Ukraine;
ii.The Second Respondent found that the Applicant was not a sex worker or an injecting drug user;
iii.the Second Respondent found that the Applicant would be unlikely to be disclose her HIV – positive status to persons outside her treating medical team in Ukraine;
iv.The Second Respondent therefore found that the Applicant would not be presumed to be a sex worker or an injecting drug user;
v.In finding that the Applicant would be unlikely to disclose her HIV – positive status in the Ukraine, the Second Respondent failed to consider whether the choice of the Applicant to live discreetly was a voluntary choice uninfluenced by the fear of harm if she did not live discretely.
vi.The Second Respondent also failed to consider the evidence of the Applicant that she had previously disclosed her status to a family member.
vii.In so doing, the Second Respondent fell into error in finding that the Applicant was unlikely to be perceived as a sex worker.
b. Claim of the Applicant’s inability to have a family;
i.The Applicant claimed that she would be denied the ability to form a family if she returned to Ukraine;
ii.The Second Respondent determined that the Applicant’s reason for seeking to remain in Australia was to be with her partner;
iii.The Second Respondent failed to consider this integer of the Applicant’s claims.
c. Claim that the persecution on the basis of membership of the various formulations of social groups, or perceived social groups, amounts to psychological harm;
i.The Applicant submitted that she would suffer psychological harm as a result of the persecution;
ii.The Respondent failed to consider whether psychological harm amounted to real harm within the meaning of s.91R of the Act and if so would this harm amount to persecution; and
d. Claim that laws in relation to HIV discrimination and privacy in existence in the Ukraine do not amount to effective State protection
i.The Applicant provided evidence to the Tribunal that the laws in the Ukraine were ineffective and had no mechanism for enforcement;
ii.The Tribunal failed to consider whether there was effective State protection against HIV based discrimination in Ukraine.”
The second particular relates to the applicant’s claim of her inability to have a family. Read in context that claim is not that the state would prevent her from having a family but that the circumstances in which she might give birth to a child are circumstances which might put that child at risk of contracting HIV/AIDS from the applicant. The applicant asserts that a woman who is HIV positive is not able to have a baby in a normal hospital. But that assertion of discrimination would appear to be negated by the legislation referred to by the Tribunal. I note that the issue is not specifically addressed even though one can see that the Tribunal would likely consider the whole issue speculative.
The third claim “psychological persecution on the basis of membership of a particular social group” was again not specifically considered in the findings and reasons. But that is because the Tribunal concluded that the applicant would not be persecuted as a member of those particular social groups or in respect of the two social groups she claimed she would be perceived as being a member of. In those circumstances there was no necessity for the Tribunal to consider her allegation of psychological harm in the context of s.91R(3) of the Migration Act 1958 (Cth)[4].
[4] “Act”
The fourth particular of claim, that the laws in relation to HIV discrimination and privacy do not amount to effective state protection, was also not dealt with in terms by the Tribunal because it had come to the conclusion that the recent amendments to the law provided redress. True it is that the applicant said that laws were not always obeyed in the Ukraine but this was done without any knowledge of the law the Tribunal was referring to and it seems to me that when the Tribunal found there was no real chance of disclosure of her condition it took into account the possibility that the laws would not be applied universally.
The second ground of application is:
“2.The Second Respondent erred in finding that the Applicant could eliminate persecution by taking avoiding action within her country of nationality by not disclosing her HIV status and in doing so did not properly consider the Applicant’s claims within s.91R of the Act:
Particulars of which are as follows:
a.The Applicant claimed that she had not disclosed her HIV status to family and friends in Ukraine;
b.The Applicant claimed that she would need to disclose her HIV status to family or friends in Ukraine for support and assistance.
c.The Second Respondent claimed that she would not face discrimination if she continued not to disclose her HIV status”
Before me the applicant’s legal practitioner presented this as what she described as an “S395/2002” argument; Appellant S395/2002 v Minister for Immigration & Anor 203 ALR 112[5]. In the leading judgment of McHugh and Kirby JJ their Honours refuted the submission that the Tribunal had required the two applicants to be discreet in their membership of the particular social group of homosexuals in Bangladesh. They accepted the Minister’s submission that the Tribunal had merely found that the appellants would live discreetly in the future as they had done in the past because “there is no reason to suppose that they would not continue to do so if they returned home now” at [34]. But at [35] they pointed to the error in the Tribunal’s reasoning:
“[35]The reasons of the tribunal show, however, that it did not consider whether the choice of the appellants to live discreetly was a voluntary choice uninfluenced by the fear of harm if they did not live discreetly. It did not consider whether persons for whom the government of Bangladesh is responsible condone or inculcate a fear of harm in those living openly as homosexuals, although it seems implicit in the tribunal's findings that they do. Nor did the tribunal's reasons discuss whether the infliction of harm can constitute persecution where an applicant must act discreetly to avoid that harm. Nor did they discuss whether, if the appellants wished to display, or inadvertently disclosed, their sexuality or relationship to other people, they were at risk of suffering serious harm constituting persecution. If the tribunal could not have properly exercised its jurisdiction without considering these matters, it has fallen into jurisdictional error and the Federal Court should have set aside the tribunal's decisions.”
[5] “S395/2002”
It seems to me that there is not really very much difference between the situation of the applicants in S395/2002 than that of this particular applicant. She is not willing to reveal her HIV status because as she says at [T10]:
“No I don’t want to tell anyone, I don’t think it’s a proud thing you have to divulge.”
But even though she admitted she would probably not go around telling people about her status in Ukraine she says:
“I am talking about confidentiality. Here I can have it and here I don’t have to go to my registration place to take a test because everybody knows each other personally. They will talk 100%. Here nobody knows me and if they say somebody has HIV they say oh big deal. If they know me personally it will spread, every people know me you know. A very big fear for that. No confidential.” [T10]
I am satisfied from reading this commentary in its context that the applicant was talking about Ukraine and not Australia. Again at [T13] the Tribunal says:
“TM:Ok just in terms of discrimination in Ukraine, it it it seems to me that you could probably avoid most discrimination by not disclosing that you have HIV, um, and given that you’re not wanting to disclose that you have HIV in Australia, it doesn’t seem that not disclosing your HIV in Ukraine would result would require any modification in your behaviour, And um so if people didn’t know that you had HIV, it seems to me unlikely that you will be discriminated against.”
This comment informs that part of the decision where the Tribunal says at [77] [CB 210]:
“By not disclosing her HIV status except to medical workers, which would require no behavioural modification on her part, the applicant would preclude such perceptions from arising.”
If the Tribunal did not engage fully with the claims made by the applicant as to what would occur should her condition become general knowledge it was because it was effectively making it a requirement that she did not permit this to happen. To my mind the Tribunal was obligated to give consideration to the applicant’s claims of discriminatory behaviour should her condition become known. It was in the absence of disclosure that the Tribunal found there was no real chance that the applicant would be discriminated against by an employer. The Tribunal did not turn its mind to what might happen if there was disclosure. To that extent and subject to the views that I would express upon the overarching response to the application I believe that the Tribunal did fall into jurisdictional error.
The third ground of application is in the following form:
“3.The Second Respondent failed to afford the Applicant procedural fairness by refusing to grant additional time to provide comments in relation to the issues under review. The Second Respondent erred at law by failing to give effect to s 424 AA of the Act. And in the alternative the Second Respondent failed to afford the Applicant procedural fairness by failing to allow reasonable time or an adjournment to consider and respond to information provided to the Applicant under s424AA.”
The particulars refer to the independent country information concerning the recent anti-discrimination laws addressed to persons with HIV and information concerning the availability of social security in the Ukraine. The applicant proceeds on the basis of a common misunderstanding about the nature of s.424AA of the Act. In order to understand these references it is best to set out below both 424A and 424AA:
“424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
424AAInformation and invitation given orally by Tribunal while applicant appearing
If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so--the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.”
The misconceptions which the applicant holds is that s.424A is a separate part of the code from s.424AA. It is not. It merely provides an alternative method of raising matters with persons appearing before the Tribunal to those set out in s.424A. All the exclusions that are found in sub-s.3 to that section apply equally to s.424AA.
The information which the Tribunal referred the applicant to was independent country information, it was not specifically about the applicant but about a class of persons of which the applicant was a member; SZMCD v Minister for Immigration & Anor [2009] FCAFC 46 at [2] and [90]
[2]It cannot be doubted that s 424AA and s 424A are intended to be complementary. This is obvious from the legislative history and the terms of both sections. The former section, if complied with, relieves the Tribunal of the duty imposed by the latter. The only possible point of uncertainty about the operation of the two sections, at least as revealed in these proceedings, is whether a possibly imperfect but unnecessary attempt to comply with the former might somehow give rise to jurisdictional error, irrespective of the fact that the circumstances did not create a duty to comply with the latter. I say unnecessary because in the present case the contentious information was "country information" comprehended by s 424A(3)(a) of the Act (that is, information that was not specifically about the applicant or another person and was just about a class of persons of which the applicant or other person is a member). Accordingly, there was no duty under s 424A to give particulars of that information. As there was no duty under that section, it was unnecessary for the Tribunal to seek to avoid (as it is entitled to do) the performance of the duty by seeking to act in the way contemplated by s 424AA if this is what it was intending to do. Any non-compliance with s 424AA in circumstances where there was no duty otherwise imposed by s 424A, is, in my opinion, of no legal consequence. Where there is an imperfect attempt to give effect to s 424AA the result merely is that the exemption offered in s 424A(2A) is not engaged. However, there can be no non-engagement of that subsection in circumstances such as the present given that s 424A does not, in any event, apply. If there is no obligation to provide particulars under s 424A, then s 424A(2A) has no field of operation having regard to the opening words of that subsection, which presupposes the existence of such an obligation. Section 424AA is, in my opinion, clearly not intended to create a duty to take particular steps independently of the existence of a duty under s 424A. In a case such as the present it cannot be said that the Tribunal failed to perform a duty that might give rise to jurisdictional error.
[90]Section 424A(1) prescribes what must be done. What must be done is subject to the exceptions in subs (2A) and subs (3). Section 424AA is thus facultative--it is one way by which the Tribunal can satisfy the substance of what is required of it under s 424A(1). If it elects to invoke s 424AA, it may do so expediently and by way of oral communication rather than by written communication. Given the primacy of s 424A(1) and the exceptions to it, it would be absurd to interpret the section in a way which exempted country information from the s 424A(1) requirements but did not do so in respect of the s 424AA requirements.”
The respondent also notes that the existence or potential existence of anti-discriminatory laws protecting persons with HIV/AIDS was raised in the delegate’s decision where the delegate stated:
“The country information indicates that there are support services and advocacy groups that are committed to promoting awareness and access to HIV prevention treatment and care in the Ukraine. Furthermore, the Ukrainian government are taking steps, including making changes in legislation to address the HIV/AIDS “epidemic”. [emphasis added][6]
[6] CB 142
I am troubled by the Tribunal’s refusal to allow the applicant some time in which to make a comment about that legislation. Its existence was certainly central to the Tribunal’s consideration of the claims being made by the applicant, indeed, it was the answer to those claims. It will both prevent discrimination and ensure that if it did exist it could be remedied. But this is not a case like SZBEL v Minister for Immigration & Anor [2006] 228 CLR 152 where the issue could not have been anticipated and, as the natural justice hearing rule before the Tribunal is limited by the Division 4 of the Act commencing at s.422B, I do not believe that what might appear as a lack of fairness constitutes a jurisdictional error on the part of the Tribunal. The remarks which I have made above relating to the anti-discrimination law apply equally to the information concerning the availability of social security which the applicant accepted did exist.
The fourth ground of application was:
“4.The Second Respondent erred at law in failing to give effect to s425 of the Act;
Particulars of which are as follows:
a.The Second Respondent had a duty to afford the Applicant a real hearing.
b.The Second Respondent failed to provide “adequate or proper interpreting service” to the Applicant.
c.In so failing, the Applicant was unable to properly understand the Tribunal’s queries and provide her evidence.
d.The Tribunal drew conclusions adverse to the Applicant and material to the Tribunal’s ultimate findings as a direct result of such failings.”
In her written submissions the applicant accepts that she must show that the supplied translation services were so inadequate that she was effectively prevented from giving evidence at the Tribunal or that errors made by the Tribunal were material to the conclusions adverse to her; Appellant P119/2002 v Minister for Immigration & Anor [2003] FCAFC 230 per Mansfield and Selway JJ at [17]. She submits that both the standard of interpretation was so inadequate that she was effectively prevented from giving evidence and that the second respondent failed to afford her procedural fairness by not utilising the interpreter who was present. She notes that in SZQYM v Minister for Immigration & Anor [2007] FCA 1293 per Graham J at [27] his Honour opined that:
“[27]A meaningful opportunity in the case of a person who is not fluent in the English language will only be afforded if an interpreter is present and it is evident that subject to reasonably accurate interpretation that which an applicant wishes to convey to the Tribunal and that which the Tribunal wishes to convey to an applicant is fairly interpreted.”
It is to be recalled that when the hearing started the Tribunal indicated to the applicant that it was aware that she had a knowledge of English and so proposed a procedure whereby English would be used as the language of the interview but that the applicant could utilise the services of the interpreter if she felt she did not understand something. Equally the Tribunal could ask the interpreter to interpret the questions proposed by the Tribunal into Russian. The applicant argues that the Tribunal member was not present when the hearing attendant and the applicant had a conversation in relation to the use of the interpreter and had no direct indication from the applicant as to if or how the applicant wished to use the interpreter. But it is clear that she agreed to his proposition that most of the hearing could be conducted in English. I do not think there is any significance in the fact that this agreement came as a result of a discussion at which the presiding Tribunal member was not present.
In order to establish that the failure to use the interpreter resulted in error the applicant points to an early series of questions in which the applicant provided a response apparently unconnected with the question. The Tribunal is asking about the visit back to the Ukraine that the applicant took after she had been diagnosed:
“TM:Alright um were you in the Ukraine for the whole of that period, apart from, obviously, the time it takes to get there? Or did you visit somewhere else?
APP:(crying).
APP:Can you repeat question sorry?
TM:I just asked were you in Ukraine for the whole of that period, obviously apart from?
APP:Yes I was in Ukraine, I was born in little, in a little village and then I was living in different city because I was working there I was a student. And then I came to Kiev I was living there 12 years.
TM:I was just talking about the trip you had at the end of last year and the beginning of this year. Was was so that was about two months, sorry one month, bit over a month, you were away for? Did you spend that period in Kiev?
APP:Yes yes I was in Kiev, yeah sorry.
TM:Alright. And I should just mention just because obviously you reached for the tissues there, um I I I imagine that a lot of what we will be talking about this morning um will be difficult um, and and I certainly understand that so if at any stage you need some time to compose yourself, or whatever, then then you are certainly, you’re certainly very welcome to do that. And I do apologise in advance for having to go through some of these issues.”[7]
[7] T4
I accept that this exchange indicates that the applicant did not clearly comprehend the first question but whether this was because of her limited English or because of her distress it is difficult to say. What is important, however, is that the misapprehension was corrected. In her submissions the applicant then points to the two incidents where the Tribunal has misunderstood the applicant’s responses. One relates to whether or not the people the applicant did tell about her illness were sisters and the other as to whether the applicant was saying that people in the Ukraine believed that HIV/AIDS is spread through the air. I accept that these were both misunderstandings on the part of the Tribunal but I do not think that they point to the type of serious error in interpretation that is required by the authorities. Perhaps the more substantial claim made by the applicant is that if one looks through the transcript one can see that there are several occasions upon which the applicant seeks assistance of the interpreter. Sometimes this assistance is sought at the end of a very long question by the Tribunal member and more often it appears that the applicant has got halfway through a response and is having difficulty in articulating the balance in English and then seeks the interpreter’s assistance. It will be recalled that towards the latter part of the interview the applicant requests that it continue through the interpreter:
“Yes and I would like to talk through the interpreter because I get nervous and may be you won’t understand.” [T22]
In Singh v Minister for Immigration & Anor [2001] FCA 1376 the Full Court Tamberlin Mansfield and Emmett JJ considered a situation relatively similar to that which pertains here. Mr Singh had indicated that he did not need an interpreter but later complained that he had not been properly understood nor did he properly understand the questioning by the Tribunal. The views of the Full Court on this aspect of the matter are set out below:
[23]The mere fact that a person can sufficiently speak the English language to perform mundane or social tasks or even business obligations does not necessarily mean that he or she is able to cope with the added stresses imposed by appearing as a witness in a hearing before a court or tribunal. Thus, an applicant for refugee status may be able to use English for some purposes, even professional purposes, but may be insufficiently proficient to give evidence and make submissions before the Tribunal in support of an application vital to his or her future prospects. The fact that an applicant has sufficient knowledge of English for some purposes does not mean that the applicant will be so proficient that he could cope adequately with the giving of evidence and the making of submissions before the Tribunal - Perera v Minister for Immigration & Multicultural Affairs[1999] FCA 507 at [34] - [36].
[24] The primary judge observed that the transcript demonstrates that the verbal exchange between the appellant and the Tribunal was disjointed. However, her Honour concluded that there was nothing to suggest that language difficulties prevented the appellant from comprehending the full significance of the Tribunal's questions and communicating arguments in response. Her Honour did not consider that the verbal exchange was disjointed to such an extent that communication could be said to have been compromised.
[25] The transcript indicates that the appellant's answers were responsive to the Tribunal's questions. They are generally coherent and are consistent with the written claims contained in his application and with the additional evidence sent to the Tribunal on 17 August 1998. There is no indication that either the appellant or the Tribunal member became confused in the course of proceedings or that the appellant lacked confidence in his ability to participate in the Tribunal hearing by use of English.
[26] There is no warrant for reading s 427(7) as imposing an obligation on the Tribunal. The Act regularly uses the word "may" and "must" in contexts where it is clear that the use of the former indicates a discretion whereas the use of the latter leaves no room for discretion. Section 427(7) must be considered in the context of s 425. Section 425(1) provides that the Tribunal "must invite" an appellant to appear before the Tribunal "to give evidence and present arguments" relating to the issues arising before the Tribunal. Section 427(7) simply empowers the Tribunal to take steps to ensure that there can be real compliance with s 425(1).
[27] There is a clear relationship between ss 425(1) and 427(7). If an applicant for refugee status is unable to give evidence and present arguments in English, the effect of s 425(1) is to necessitate the exercise of the power under s 427(7) to direct that communication proceed through an interpreter - see Perera at paragraph [20]. Thus, the notion of proficiency in English that is referred to in s 427(7) must be understood by reference to the object for which s 427(7) is included in the Act. It is there to ensure that at a hearing the applicant will have a real opportunity to give evidence and present arguments.
[28] That is to say, the proficiency in English contemplated by s 427(7) is the proficiency necessary to enable an applicant to give evidence and present arguments in English in order to communicate the substance of his or her case and to respond to issues raised. It does not require any greater expertise in English. If the applicant can comprehend and articulate English sufficiently well to enable him or her, in a real sense, to give evidence and present arguments in English to the Tribunal, the requirements of s 425(1) will have been satisfied. On the other hand, if an applicant does not have such proficiency, s 425(1) may well not be satisfied in the absence of a direction under s 427(1). Either way, there is no independent obligation imposed on the Tribunal by s 427(1).
[29] We agree with the primary judge that the transcript of the hearing before the Tribunal in the present case indicates that, while the English of the appellant and his wife was at times broken and disjointed, it was sufficient to enable the appellant, in a real sense, to give evidence and present arguments relating to the issues that arose in relation to the decision of the delegate refusing protection visas.
In the instant case the applicant did have the benefit of an interpreter and did use her. The examples of misunderstanding between the Tribunal and the applicant are not significant to the decision. It probably would have been better if all questions and answers had gone through the interpreter but I cannot see that this would have so radically altered the applicant’s responses that it could be said that the interview was compromised in such a way that s.425 was not satisfied. The applicant does not depose to particular and significant misunderstandings. She does make a point that requires consideration. In her written submissions at [74] and [75] she says:
“[74]The Second Respondent stated in Finding and Reasons of the Decision that:
“Later in the hearing, after an adjournment, the applicant stated that she was terrified of returning to the Ukraine as she had HIV. The Tribunal finds that these statements were afterthoughts, and made only to strengthen her refugee claims.
[75]As noted above it was only after the adjournment that the Applicant (not the Second Respondent) was using the interpreter consistently. We accordingly submit that had an interpreter been used from the commencement of the hearing the Applicant would have been in a position to have fully articulated her claims in the first instant and the Second Respondent would not have made a finding that her claims were “an afterthought”.
The transcript is incomplete because of the fault in the disc but at [T22 – 23] the following appears:
“APP:You have been asking me, you have been asking me about my fear that this is exactly my fear, and this is my fear also, it may be my biggest one. Here I have the opportunity to having family with Paul, there no opportunity at all, no family, no friends. And that’s like, my father doesn’t have any money to support me; who will support me? We don’t have any social support for this. With this, even if you find some law it doesn’t matter, it doesn’t in real fact exist. If I do not have any family here I can have husband support and psychological support, financial support, every support I can have. There no one support it’s terrifying me. You know? I am not escape because it’s Ukraine, I escape because I have HIV and what I can have with this, how can I live with this.”
The interpretation that the Tribunal places on a remark such as these is strictly a matter for the Tribunal. Dressing it up as a complaint about interpretation services does not hide the fact that what is really being sought is impermissible merits review.
The respondent maintains that these arguments put by the applicant are ineffective because the Tribunal has made an overarching finding that the applicant has no subjective fear of persecution should she return to the Ukraine. The Tribunal’s findings in this regard are contained at [68] to [70] [CB 209]:
[71]The Tribunal notes that the High Court held in Chan v MIEA (1989) 169 CLR 379 that ‘well-founded fear’ involves both a subjective and objective element. In Iyer v MIMA [2000] FCA 1788 (Heerey, Moore & Goldberg JJ, 15 December 2000) the Full Federal Court affirmed that once the Tribunal rejects an applicant’s claim that there is a subjective fear, it is not necessary to determine whether the non-existent fear was well-founded. On this basis the Tribunal finds that the applicant does not have a subjective fear of persecution. Accordingly, the Tribunal finds that the applicant does not have a well-founded fear of persecution on this basis.”
At first sight it looks as if the reasoning behind the finding could be the subject of a complaint of Wednesbury unreasonableness. The Tribunal in [68] and again in [70] extracted at [13] of these reasons makes reference to the applicant’s return to the Ukraine and that her previous travel there and her desire to revisit the country is not consistent with a subjective fear. Whilst this is a perfectly reasonable argument to make in respect of someone who has suffered persecution in their homeland as a result, for example, of being a Falun Gong practitioner, it is not an analogy that can be applied to the situation of this applicant. She is suffering from a disease, currently asymptomatic, which, she claims, if revealed, would constitute persecution involving systematic and discriminatory conduct constituting serious harm as a result of a denial of access to basic services threatening her capacity to subsist or a denial of capacity to earn a livelihood where that threatens her capacity to subsist (s.91R of the Act). Returning to her homeland for a visit whilst she remained asymptomatic or whilst she was being effectively treated would not trigger the form of discrimination about which she holds fears. If it was the fact of her return between the time of her first and second visits to Australia and her wish to revisit her country and her family alone I might have been tempted into making a finding that in this regard the Tribunal fell into error had I not read the decision of the full bench of the Federal Court; Heerey, Moore and Goldberg JJ in Iyer v Minister for Immigration & Anor [2000] FCA 1788[8].
[8] “Iyer”
As Mr Temby points out, the Tribunal was entitled to come to its view about the applicant’s subjective fear from her responses to its questioning. At [T11] the Tribunal talks to the applicant about improvements in the numbers of people being treated for AIDS in the Ukraine and the treatment itself and suggests that there may not be a convention related reason for the lack of treatment about which the applicant complains. He says:
“TM:It doesn’t seem to me to be that the reason they are not you know treating everybody is you know for a convention reason. It’s just a resourcing issue, did you want to comment on that.”
The applicant then responds:
“APP:You know, I actually, about refugee, I wasn’t even sure if I even going like refugee, I didn’t even know this word, what does it mean. When I ask what does it mean. I had to look it up in the dictionary. What I’m asking for is to stay here, to met me stay here more permanently, I was asking just because I have a doctor here already and he knows my condition and he’s pretty good doctor. And because if you go to another doctor it’s from the zero, each time all the same. And in my country, I don’t have this um ah treatment. We still don’t have enough pills. We still don’t have many things. Yeah of course if I go in they will not say ‘you have HIV we will not treat you we don’t have the pills for you’ If I go they don’t have the pills for you, they say ‘yeah stay in the queue’ or something like that. I don’t know too much about how they treat, no I never was wondering and it never was not necessary. Everything I know it just was from study, that’s all. And I was sure HIV is somewhere there, it was not with me. I never even could never imagine it. You understand. This is why I don’t know what happened, I can’t have in common. I won’t be refugee in here, I want to be a normal person. Everything I was asking, I don’t understand the law, and why I going like a refugee why in this particular case like refugee. Everything I was asking, I just want to stay here with (partner), and also I would like to go him and visit my parents, my father. This is normal. It doesn’t mean I just to stuck in Australia forever, you understand.”
And at [T14] the following exchange takes place:
“TM:Ok. Well it seems to me that your prime motivation, and you can correct me if I’m wrong, your main motivation is that you’d like to stay in Australia because that’s where your doctors are, where you will receive the best treatment, and also where your partner is, because of your relationship?
APP:Yes, If understand right, it was explained to me when you are a refugee, it’s because you are running from discrimination because you have HIV. Maybe this is why I am going like a refugee, I’m guessing so. Because I’m telling you the whole story, and how is this happens. If I have to come back to Ukraine, living permanently there, that will be big problem for me in the future. Who knows how soon future, a year or ten years I don’t think people knows about this.”
Another exchange of relevance took place at [T7]:
“TM:So do I take it from that that what you’re most concerned about is that if you went back to the Ukraine you wouldn’t be able to work?
APP:No it’s not exactly most concern. I can live on my own, ok, but different one, it’s the treatment, what treatment I can have. This is emotional thing, so I can hold my emotion if I, I will try I have to. But what about treatment? Treatment is very expensive, very. And, sorry, and when I will go to doctor I have to find some specialists. I don’t know where, how. Because you know I don’t have any attachments with with this. Ah I have to look for some specialists, I will hope, for example I am luck I found good specialist. I come to him but ah…anyway he have to have my…”
And again at [T8]:
“TM: Ok. Was there any other aspects that you’ve got fears in relation to.
APP:Yes, ah my relationship with my partner, un I’m not just because I like him, I love this person and it happens in Ukraine before we discovered that I had HIV. And ah we actually said already we would get married when I came here just to know something about this country.”
…
APP:And of course if you have HIV it’s a problem. And can you, actually I was sure he would say sorry you’re not the person I want to live with. But he said no, God why you, why it happen to you.
TM: I understand.
APP:Can I find another man like him? A second one. It doesn’t matter how you good, it doesn’t matter how you beautiful, and how you nice and rich. To be honest, not many man want to live with a woman who is HIV positive.
TM:Look I can certainly understand that, but I’m not sure that that aspect is related to the Refugee Convention.
TM: I understand sorry.”
If one reads these exchanges it becomes clear that even if one excluded the return visit and the desire to return again to see parents and friends there is evidence from which the Tribunal could have come to the factual conclusion that it did. It is not a conclusion that I believe that this court can overturn.
The respondent argues that the conclusion the Tribunal reached has to be relevant to all the grounds of application. In other words it has to be considered against the claims of fear arising out of membership of the particular social groups indentified.
The applicant relied on what fell from the Full Bench Moore, Branson and Emmett JJ in NAPU v Minister for Immigration & Anor [2004] FCAFC 193[9]. NAPU was a case where the Tribunal considered a claim by a Bangladeshi journalist. It was argued at first instance that the Tribunal had not taken into account a claim that the applicant feared persecution by reason of his membership of a political social group of Bangladeshi journalists who had written articles critical of political groups or their supporters have not been considered by the Tribunal. At first instance Bennett J found at [23]:
“[23]That the issue of membership of a particular social group, that is Bangladeshi journalists who had written articles of political groups or their supporters (the claimed social group) was raised before the Tribunal.”
NAPU v Minister for Immigration & Anor [2003] FCA 1543
[9] “Napu”
On appeal Moore J said at [14]:
“[14]Her Honour concluded that there could be no challenge to the finding that the appellant had no subjective fear of persecution as the finding was open to the Tribunal and based on adverse findings of credit that could not be challenged as jurisdictional error. As a consequence, the appellant had not satisfied the second element of the Convention definition of refugee discussed by the High Court in Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 570 (that the appellant feared persecution). Her Honour held (later in her reasons) that the Tribunal was not required to examine the third (whether the fear was for reasons specified in the Convention) and fourth (whether there existed a well-founded fear for one of the Convention reasons) elements of the test for a refugee as discussed in Guo (supra). It is not obvious that the Tribunal made a finding of the type discussed by her Honour and referred to at the beginning of this paragraph. However, this appeal does not turn on whether such a finding was made.”
And Branson J said at [52]:
“[52]As Moore J mentions at [14], the learned primary judge referred in her reasons for judgment to a finding by the Tribunal that the appellant had no subjective fear of persecution. In my view it is plain that her Honour did not intend to suggest that the Tribunal found that the appellant had no subjective fear of persecution on any ground. Had the Tribunal made such a finding the application before her Honour would have been bound to fail. The relevant sentence of her Honour’s judgment follows a recitation by her Honour of a submission of the respondent that the applicant did not, before the Tribunal, articulate a claim that he feared persecution as a member of a social group. The reasons for decision of the Tribunal record that the appellant did not claim that he was at risk of harm from people who disagree with him over political issues. However, the Tribunal accepted that the appellant might have been threatened and warned to cease writing articles making the kinds of accusations that he made in an article that he wrote in October 2000. While the Tribunal did not accept that the appellant is currently at risk of serious harm because of his past articles, it did not give consideration to whether, in Bangladesh, he would face risks in respect of which he would not enjoy state protection, not by reason of any specific article that he had written or might write, but because of who he might be seen to be.”
In the applicant’s submission this meant that a Tribunal must consider the question of subjective fear in respect of each claim made by an applicant and each claim which an applicant could articulate from known facts: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58]-[60].
The respondent counters with the view expressed by another Full Bench in Iyer where their Honours said at [29]:
“[29]Whether the appellant had been obliged to pay a bribe to the LTTE in order to bring his children out of Jaffna, and whether that extortion constituted Convention-based persecution, was not a material question of fact which the Tribunal had to determine, having regard to the Tribunal's clear and explicit finding that:
"... I do not accept that the Applicant genuinely fears that he will be persecuted for Convention reasons if he returns to Sri Lanka. I consider that his claimed fear of being persecuted is `merely assumed' ..."
Once this finding had been made, it was not necessary for the Tribunal to determine whether factual occurrences relied upon by the appellant provided an objective basis for the fear of persecution claimed by the appellant. Once the Tribunal rejected the claim that there was such a subjective fear, it was not necessary for the Tribunal to determine whether the non-existent fear was well-founded. This is so even if the approach of the Tribunal might be viewed as illogical to the extent that it relied upon the appellant's return to Sri Lanka without his son in circumstances where the well-founded fear was based, in part, on what might happen to his son in Sri Lanka.”[emphasis added].
I do not think there is any inconsistency between the two decisions. In the Iyer case there was only one effective ground upon which the applicant claimed a fear of persecution, that his son might be forcibly recruited by the LTTE should the family return. The Tribunal came to its conclusion about the subjective fear as it related to that matter, although as the Full Court noted, the Tribunal’s finding might be viewed as illogical to an extent. I am of the opinion that the authorities require a Tribunal to consider the question of subjective opinion on the basis of all the available claims. But this does not assist the applicant in the instant case because I believe that a proper reading of the Tribunal’s grounds and reasons, in particular paragraphs [68] to [71] [CB 209] thereof shows that the finding was made on the basis of the articulated claims. I have already come to the view that there was sufficient evidence available to the Tribunal, excluding the evidence of the applicant’s return, upon which to base this finding. It is clear from the decision in Iyer that the applicant would face a considerable hurdle even if the decision was based solely upon the apparently illogical ground concerning her return. But that is not a matter that I need to consider further.
In all the circumstances this finding of no subjective fear means that any finding that I might have made with regard to jurisdictional error in the subsequent conclusions of the Tribunal is of no utility. The application is dismissed. The Applicant must pay the First Respondent’s costs which I assess in the sum of $6,250.00.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 4 April 2012
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