SZSTR v Minister for Immigration

[2014] FCCA 2554

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSTR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2554

Catchwords:
MIGRATION – Application for review of the decision of the Refugee Review Tribunal – whether Tribunal failed to consider an integer of the applicant’s claim – whether Tribunal failed to consider evidence – whether Tribunal’s decision was illogical or irrational – jurisdictional error found – application made out.

Legislation:

Migration Act 1958 (Cth), ss.36, 425, 430, 476

Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248
SZQYM v Minister for Immigration and Border Protection [2014] FCA 427
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16
VSAI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1602
Minister for Immigration & Multicultural Affairs v Haji Ibrahim [2000] HCA 55; (2000) 204 CLR 1
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
MZWPD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1095
SZGUW v Minister for Immigration & Citizenship [2008] FCA 91
Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58
Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Lee v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 464
Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123; 113 ALD 46
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
SZRBA v Minister for Immigration and Border Protection [2014] FCAFC 81
SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774
SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125
SZQPG v Minister for Immigration & Anor [2011] FMCA 978

Applicant: SZSTR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 795 of 2013

Judgment of: Judge Nicholls

Hearing date: 11 February 2014

Date of Last Submission: 19 March 2014

Delivered at: Sydney

Delivered on: 7 November 2014

REPRESENTATION

Solicitors for the Applicant: Mr. T Silva of Silva Solicitors

Counsel for the Respondents: Mr B O’Donnell

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. A writ in the nature of certiorari issue quashing the decision of the second respondent made on 18 March 2013.

2. A writ in the nature of mandamus issue compelling the second respondent to reconsider the application according to law.

3. The first respondent pay the applicant’s costs set in the amount of $6,646.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 795 of 2013

SZSTR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 17 April 2013 and amended on 24 June 2013 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 18 March 2013 which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

Background

1. The applicant is a citizen of Fiji of Indian ethnicity (CB 15 and CB 16). She arrived in Australia on 28 February 2012 as a visitor (CB 16). She applied for a protection visa, with the assistance of a registered migration agent, on 22 May 2012 (CB 1 to CB 63, including attachments).

2. The claims to protection were initially set out in a Statutory Declaration made by the applicant on 16 May 2012, attached to the protection visa application (CB 53 to CB 55). The applicant claimed that she feared harm from “Fijian people” because she was “an Indian woman living alone without any male to protect [her]” ([4] at CB 53). She claimed that she had been harassed at home, through vandalism and burglaries, and in the community. The applicant claimed that her home had been damaged and burgled in December 2011, and that in February 2012 she had been assaulted in a home invasion by “two persons” who broke into her house.

3. The applicant attended an interview with the delegate (CB 76). The delegate accepted that the applicant had been subject to harassment from “local indigenous Fijian males” because she was a “single,

   
   

   Indo-Fijian woman”, and, consequently, the claims of specific harassment that she had made. However, the delegate found that the applicant could “access state protection and [could] relocate within Fiji” (CB 84). Therefore, the delegate refused her application for a protection visa.

The Tribunal

1. The applicant applied to the Tribunal for review of the delegate’s decision on 28 September 2012 (CB 88 to CB 94). She was assisted by the same registered migration agent and solicitor. The applicant and her representative attended a hearing with the Tribunal on 5 March 2013 (CB 123). The representative submitted a number of further materials to the Tribunal at this time (CB 119 to CB 122). The applicant made a claim at the hearing that she did not contact the police after the home invasion because they had not assisted after a previous “break in”, and had not otherwise assisted her when she had been harassed. She also claimed that she had been “targeted by a group of Fijians” who inhibited her from going to the police.

2. The Tribunal affirmed the decision of the delegate to refuse the protection visa to the applicant on 18 March 2013. The Tribunal accepted that she had been the victim of harassment and that the applicant had been “largely credible as to what happened to her in Fiji” ([109] at CB 150). However, the Tribunal did not accept the applicant’s claims made at the hearing that she had been targeted by a “particular group of Fijians in her area” ([109] at CB 150).

3. Further, the Tribunal found that the independent information available did not support the applicant’s claims that she was at risk of serious harm because of her race (see [112] at CB 150 to [124] at CB 153). The Tribunal found that the harassment and specific incidents, were “opportunistic in nature” ([114] at CB 151), and while there was some discrimination against Indians in Fiji, the specific incidents that had occurred were not a result of that discrimination ([116] at CB 151).

4. The Tribunal separately considered the applicant’s claims under s.36(2)(aa) of the Act. It found that there was not a real risk that the applicant would suffer significant harm as a result of “general violence” ([126] at CB 153).

Application Before the Court

1. The application before the Court, as amended on 24 June 2013, contains the following grounds and particulars:

   “(1) The Tribunal made jurisdictional error in that it failed to consider an issue/claim it was required and which was squarely put to the Tribunal by the applicant’s Representative

   Particulars

   It was put to the Tribunal twice by the Representative at the hearing that the unusually high frequency of the harmful events that the applicant was subject to over a very short period of time took her case outside that of an average person in Fiji and made her case unusual and made it necessary for the Tribunal to consider her case as such.

   The first submission of the Representative to the Tribunal at the hearing appears in the Transcript at Page 23 line 18-25

   I also remember you suggested to her about targeting. You suggested that she may not have been targeted, it’s just random, and this is the way crime is in Fiji. But if you look at the stat declaration, there have been several incidents of harm over a reasonably short period of time. Which would be very high compared to an average person in Fiji, what she has encountered. So it shows that her case is unusual in that sense, so there must have been some element of targeting involved.

   See also Transcript at Page 28 line 24-30 for the second submission.

   Although DFAT report indicated that there is a risk of generalized robbery and possible violence against persons in Fiji and that most robberies occur from opportunistic circumstances and are random in nature (CB 150 para.113), the task for the Tribunal would have been firstly to consider whether frequency of the harmful events faced by the applicant was high/very high compared to an average person and if so secondly to identify the reason for it. Thirdly, for the Tribunal to consider whether that reason fell within one of the convention reasons. These were essential tasks that were not performed impacting on the jurisdiction.

   (2) The Tribunal made jurisdictional error in that it failed to consider an issue it was required to consider and which came clearly out of the questions put to the applicant by the Tribunal

   Particulars

   The Tribunal failed to ask, whether the fact that all the harmful events happened to the applicant after her husband died and she started living alone, was because she was targeted as a single woman living alone or for various combinations of factors put to the Tribunal in terms of various particular social groups that the applicant may belong to.

   The relevant exchange appears at Transcript Pg11 ln26-38

   [Tribunal]: Are you saying this wasn’t random, you were robbed because you’re an Indo-Fijian woman, living alone?

   [Applicant]: Yes.

   [Tribunal]: Is it that they want to harm you, directly, or is it that they just see you as an easy target, an easy place to rob because you’re a woman living alone?

   [Applicant]: Because these things have been happening since my husband died. So that’s why I think that’s one of the reasons, because I’m by myself.

   (3) The Tribunal made jurisdictional error in that it failed to consider all the harmful events it accepts, cumulatively, in deciding whether she was targeted and harmed for a convention reason.

   Particulars

   In its decision at CB 151 Para.114, in considering the reason for the harm perpetrated against the applicant, the Tribunal did not consider all the harm referred to in a summary form by the Tribunal at CB 149 in para.108 and accepted by the Tribunal at CB 150 in para.109, but just looked at the 2011 theft and 2012 robbery in finding she was not harmed for a Convention reason.

   (4) The Tribunal made jurisdictional error in that in considering the issue of whether the applicant was harmed for convention reason during the attack on her in 2012 the Tribunal made three legal errors which either individually or together impacted on its jurisdiction

   Particulars

   (a) In its decision at CB 151 para.114, the Tribunal failed to deal with the claim (see CB 54 para.9 &10, CB 135 para. 43 and also Transcript pg 13 ln 1-5 & ln 31-35; pg 17 ln 5-22; pg 23 ln 36- 40 and pg 29 ln 10-13 ) that the applicant fainted after she hit her head on the ground when she tried to save herself from being sexually assaulted, while attempts were being made by perpetrators forcefully to remove her clothes;

   (b) In its decision at CB 151 para.114 & para. 116, the Tribunal failed to deal with the claim stated in her statutory declaration ( CB 54 para. 9) that the perpetrators used racist taunt during the crime as follows:

   One of them said you Kaindia why don’t you people go home to India

   ‘Kaindia’ is an insulting and racist term used by native Fijians to refer to Indo-Fijians. The purpose usually is to belittle them by emphasising the concept that Indo-Fijians do not belong to Fiji but belong to India; and

   (c) The Tribunal was irrational, illogical and Wednesbury unreasonable in finding that because she was not sexually assaulted after she fell down, hit her head and fainted while the perpetrators were trying to remove her clothes, it was not the intention of the perpetrators to harm her other than to rob her (CB 151 para.114; CB 152 at para.120; Transcript Pg 27 ln32-35). That finding is so arbitrary and unreasonable that no reasonable decision maker would have come to that conclusion.

   (5) The Tribunal made jurisdictional error in that it failed to consider whether two critical piece of country information provided to the Tribunal by the applicant supported three issues critical to the applicant’s case

   Particulars

   (a) The Tribunal was provided with a news report from ‘The Fiji Times ONLINE’ dated 11/07/2012 which it referred to in its decision at CB140 para.70. This report also appears in its entirety at CB 119. However the Tribunal stated at CB 143 in para.83 that:

   Nor were reports located of Indo-Fijians being unable to access protection for specific reasons of their ethnicity.

   A strong inference was available that this information showed that:

   (i) Indo-Fijians reporting crime against native Fijians will be punished by Native Fijian leaders and the community if they complain directly to the police without approaching the native Fijian community leaders first; and

   (ii) Police do not provide protection in the above scenario and thus no state protection is available.

   See also Transcript Pg 24 ln28-41 where this news report was drawn to the attention of the Tribunal by the Representative. The Tribunal should have considered whether that news report was such information it was looking for but it failed to do that.

   (b) In CB 152 at para.121 the Tribunal referred to Former Police Commissioner Teleni’s racist comments about

   
   

   Indo-Fijian police officers but dealt with it in a cursory manner without addressing the obvious question that is ‘If the Police Commissioner himself is an openly racist person then, could the Indian population expect state protection from the police force when there is racist attack against them?’.

   (6) The Tribunal made jurisdictional error in that it misunderstood some aspect of the applicant’s claim and used that as a basis to make a finding about as to why she didn’t seek protection soon after the incident in 2012

   Particulars

   The Tribunal stated at CB 150 in para.109 that the applicant made a new claim at the hearing in that she claimed that she will be targeted by a particular group of Fijians in her area. The Tribunal further stated that ‘I do not accept this to be true as later in the hearing when I questioned her about this group she said she did not know who they were’.

   Firstly it is not a new claim since she had claimed that in her Statutory Declaration (CB 53) in the following terms:

   (6) I suspected the thieves were neighborhood Fijian boys. Police came and checked the house. I told the police about the suspected thieves and they said they will tell me after some investigations what they find later on, but they never got back to us. Since that event the problem became worse. Sometimes at night they throw rocks and stones at my house and on one occasion put dead rat and on another occasion lit fire to the clothes drying outside on the clothesline.

   Secondly the Tribunal's version of the evidence is clearly wrong. See Pg 10 ln 18-Pg 11 ln20; Pg 14 ln 22-Pg 15-ln 22; Pg 18 ln 30-Pg 19 ln 16; Pg 25 ln 33 -Pg 26 ln 34.

   Therefore the Tribunal's finding at CB150 in para.110 in the following terms is flawed:

   It follows for-the same reason I also do not accept her evidence to be true that she did not go to the police in 2012 as she feared retribution from this group because she reported them in 2011.

   The misunderstanding of the applicant's claim as stated above in Ground 1 has been used to suggest that the applicant was lying on that issue whereas in all other aspects she has been found to be truthful. This is most specifically so in relation to ‘State Protection’ that is whether the Police would be able to provide protection to the applicant because the reasons she was reluctant to go to police is important and one of them being fear of retribution.

   Complementary Protection

   (7) The Tribunal made jurisdictional error in that it used legally flawed conclusion it previously to hold that the applicant is not owed Complementary Protection

   Particulars

   The Tribunal found at CB 153 at in para. 126 that:

   ....For the reasons outlined above the Tribunal has not accepted that the difficulties the applicant faced in Fiji or she claims she will face in Fiji are as a result of the reasons she claims, rather it is as a result of random acts of crime of opportunity or generalised crime......

   The finding was legally flawed because of the legal error identified under Grounds 1 to 4 either individually or taken together.

   (8) The Tribunal made jurisdictional in that (i) it was looking at the case of a different person, and /or (ii) it did not give genuine consideration in deciding whether the applicant is owed Complementary Protection

   Particulars

   (a) The Tribunal referred to the case of a male applicant whereas the applicant is a female and her problems were substantially linked to her femininity; and

   (b) The Tribunal referred to ‘the applicant being removed from Australia to Afghanistan’ whereas the applicant is from Fiji.

   There were only two substantive paragraphs (at CB 153, para.126 & 127) dealing with Complementary Protection. Paragraph 127 refers to “he”, “his” & “him” altogether at four places. The applicant's claims are gender specific and country specific and it should have been looked in that context. The appearance of confusion on the part of the Tribunal lends substance to the claim that the Tribunal’s mind was not on the matter and proper consideration was not given to the issue of Complementary Protection and just cursory consideration was given to this issue as it appears most likely that the Tribunal must have done a cut and paste of the decision from another decision.”

   [Errors in the original.]

Evidence Before the Court

1. The Court had before it the following evidence, read without objection:

   1)

   The bundle of relevant materials filed by the Minister

   
   

   (“the Court Book” – “CB”).

   2)An affidavit made by the applicant on 6 June 2013 which annexed a copy of the transcript of the Tribunal hearing (“T”).

2. The applicant also sought to read the applicant’s affidavit of 22 June 2013 which had annexed to it a recording (“CD”) of an interview with the delegate whose decision was the subject of review by the Tribunal, and presented a transcript of a small part of it. The Minister objected to the whole of the affidavit.

3. The Minister’s submissions and objections were:

   1)It is not the practice of this Court to receive audio recordings of hearings and by analogy therefore delegate’s interviews (with reference to [3] of the affidavit and the annexure).

   2)Paragraph 4 of the affidavit purports to be a “lay transcript” (partial) of the interview. It should have been “professionally” prepared.

   3)Both the applicant and her solicitor have an interest in the outcome of these proceedings.

   4)A partial transcript without context could mislead the Court.

   5)None of the material referred to in the affidavit is relevant in these proceedings. The judicial review is concerned with the Tribunal’s decision, which has the effect of curing any errors in the delegate’s decision (Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248 and SZQYM v Minister for Immigration and Border Protection [2014] FCA 427).

   6)The delegate’s decision may be relevant in certain circumstances. For example, with reference to s.425 of the Act and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 (“SZBEL”) and what may have been a “live” issue as a result of the delegate’s decision. But that did not appear to be relevant here.

   7)Paragraph 6 of the affidavit seeks to give reasons as to why the applicant did not go to police in Fiji after an incident of claimed harm in 2012. This is an attempt to put on evidence now about the merits of one of the issues before the Tribunal. Therefore [6] can only be relevant to merits, not judicial, review.

1. In all the Minister’s position was that when those paragraphs

   
   

   ([3], [4], [6]) are removed (there was no [5]), the remainder lacks relevant substance. Therefore, the entire affidavit should be excluded.

2. The applicant did not seek to read [6] of the affidavit. For the remainder, the applicant said that she did not seek to press the contents of all of the audio recording. What was “transcribed” was relevant to ground six. In essence the claim was that the Tribunal was in error in misunderstanding some of the applicant’s claims as being “new” claims (with reference to [109] of the Tribunal’s decision record at CB 150).

3. Without hearing argument relevant to the detail of the case, it was not possible to rule on whether the evidence should be read. I admitted the affidavit (absent [6]) provisionally to enable that argument to take place in the context of submissions in relation to ground six. Ultimately, and formally, I find that the evidence should be admitted, given the Tribunal’s reference to what it said the applicant failed to state at the interview with the delegate (however see [173] and [175] below).

4. In saying this, I should note that many of the points raised by the Minister against the admission of the evidence have strength. However, the “usual” practice of this Court in relation to transcripts of Tribunal hearings, and for that matter delegates’ interviews, must be applied with reference to the particular circumstances of each case and what is relevant, appropriate and fair in the circumstances presented. In the current case the applicant’s central argument in relation to ground six does depend, in large part, on what occurred at the interview with the delegate. In these circumstances, notwithstanding the “deficiencies” in the affidavit (for example, the partial transcript was prepared by the applicant’s solicitor), I would not see this on its own as a reason not to admit the evidence.

Before the Court

1. At the hearing before the Court the applicant was represented by

   
   

   Mr T Silva. Mr B O’Donnell of counsel appeared for the Minister.

Consideration

1. The starting point for the consideration of the applicant’s grounds in this case is, somewhat unusually, the respondent’s submissions. Some background explanation is necessary.

2. The amended application ultimately before the Court contains eight grounds, particularised, with a number of elements involved in each particular.

3. While this matter was set down for a half day hearing, the respondent was unable to complete his oral submissions even in the extended time made available on that day. I offered the Minister the option of adjourning the hearing to a later available date, or making written submissions. He chose the latter.

4. In short, the applicant’s grounds as presented and pressed required, caused, and separately, involved lengthy oral submissions by her representative before the Court. It is obviously not appropriate for this Court to seek, in the circumstances of cases of this type, to unduly “interfere” with an applicant’s capacity, or desire, to argue the case she wishes to pursue.

5. However, at the beginning of the hearing, having read all of the material put before the Court (including affidavits which were subsequently put into evidence), I suggested to the applicant that in the judicial review of administrative decisions, minute and over-zealous scrutiny of the Tribunal’s decision record (as appeared from her written submissions) was at odds with relevant authorities. In particular, I had in mind the High Court’s statement in Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”) at [30] – [31] per Brennan CJ, Toohey, McHugh and Gummow JJ:

   “[30] When the Full Court referred to ‘beneficial construction’, it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be ‘concerned with looseness in the language ... nor with unhappy phrasing’ of the reasons of an administrative decision-maker. The Court continued:

   ‘The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.’

   [31] These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin:

   ‘The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.’

6. For the most part, the applicant’s grounds as presented and as explained by written submissions, on their face, appeared to ignore this direction.

7. Further, notwithstanding the above, a large part of the applicant’s subsequent oral submissions continued in the same vein. This led to the opening of the Minister’s oral submissions which focussed generally on the appropriate way in which to read and understand Tribunal decisions on judicial review. The Minister emphasised a number of elements.

8. First, in her amended application, and both written and oral submissions, the applicant made various and repeated references to concepts such as “claim”, “integer of claim”, “issue”, “piece of evidence” and “submissions”. The terms were often used interchangeably. For example, ground one asserts a failure “to consider an issue/claim”. In particular, this was said to be a specific “submission” made by the applicant’s representative to the Tribunal.

9. I agree with the Minister that some care must be taken in considering each of these terms. “Claims”, “issues” and “evidence”, in particular, have been the subject of judicial consideration, relevant to migration matters. Some of these terms, that have been used interchangeably by the applicant, have been given emphasis and in some instances context, by various authorities.

10. For example, the word “issue” in migration cases, directs attention to s.425 of the Act and the High Court consideration in SZBEL. That is, the Tribunal may fall into jurisdictional error if an issue dispositive of the review, and not identifiable as a live issue arising from the delegate’s decision, is not “discussed” at the hearing. The obligation of the Tribunal is to invite the applicant to a hearing, and to provide a meaningful opportunity for the applicant to appear and “to give evidence and present arguments relating to the issues arising in relation to the decision under review” (s.425(1) of the Act). The Act itself here, distinguishes between “evidence”, “arguments” (in the sense of submissions) and “issues”.

11. The Minister referred to Minister for Aboriginal Affairs v
    Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

    
    

    (“Peko-Wallsend”) per Mason J and submitted that a failure to take into account a relevant consideration is in many ways a “misnomer for the ground”. Respectfully, some care must be taken to understand the relevant context of what was said in that case. As Robertson J said in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 (“SZRKT”) at [99], in relation to:

    “I should refer here to Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 relied on by the applicant. The case was brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and concerned the interpretation of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). It does not therefore provide a sound basis for considering questions of jurisdictional error either at all or under the Migration Act. Further, the emphasis of the case was whether the Minister was bound to make his decision on the basis of the most current material available to him which updated and corrected the view of the facts taken by the Commissioner as to detriment to the respondents which was a matter which the Minister was bound by the legislation to take into account. Because he had not taken into account the material submitted to him updating and correcting the Commissioner’s material on detriment, the Minister was held to have failed to take into account a consideration required by the Act to be taken into account, being the detriment to the respondents. The duty of the Minister was to consider the matters mentioned in s 50(3) in the light of the actual facts as disclosed by the material in his possession at the time he made his decision under s 11 that certain land be granted to a Land Trust: see the report at 30 and 44-45 and 71. In my opinion the decision does not assist in the resolution of the present appeal.”

12. The Tribunal, as an administrative decision maker, is required to take into account relevant considerations. The Minister’s argument, with which I generally agree, is that the failure to take into account a required consideration must be tested as against the relevant statutory context.

13. In a similar vein, it is the case that the Tribunal is not required to consider every piece of evidence before it (see for example WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 (“WAEE”)). Relevantly, the obligation on the Tribunal is to consider all substantial and clearly articulated claims relying on established facts, expressly made or clearly arising from the circumstances presented (Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 (“NABE (No 2)”).

14. I also note, in SZRKT, his Honour made it clear that “…merely to ignore ‘relevant material’ does not establish jurisdictional error” (SZRKT at [97] per Robertson J).

15. In this regard, a claim in the protection visa context has a specific meaning. A claim is the reasons that an applicant says that he or she falls within one of the grounds of the Refugees Convention or is caught by some aspect of s.36(2A) of the Act (in relation to complementary protection).

16. An integer of a claim can be understood to be a part of, or an element in, articulating that claim, relevantly to fear serious or significant harm. The basis from which that articulation arises, is the “evidence” presented. There is no obligation on the Tribunal to mention every piece of evidence presented in its decision record (WAEE). That is also made clear by s.430 of the Act where the Tribunal is only required to refer to the “evidence” or material on which the findings of fact in the case are based (s.430(1)(d) of the Act). In these circumstances “material” may include submissions and arguments made to the Tribunal.

17. In my respectful view an important clarification of these matters is set out in SZRKT ([111] – [112]):

    “[111] In my opinion there is no clear distinction in each case between claims and evidence: see SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 at [24], set out at [69] above. The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.

    [112] As the Full Court said in VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [77] whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims. To the extent that the Minister’s submissions involved the contention that it is always the case that these matters may be dealt with without reference to the Tribunal’s reasons I do not agree.”

18. As stated above, it is not in itself legal error to ignore evidence (see WAEE at [46]). What I respectfully understand from SZRKT is as set out in Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 (“SZSRS”) at [29]:

    “The relevance of the distinction between claims and evidence and the authorities relied on by the Minister are considered later in this judgment. It is sufficient to note at this stage that the Minister did not directly challenge the correctness of Robertson J’s recent analysis of the relevant principles in this area in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT), which was cited with approval by the Court in MZYTS at [68]-[70]. The approach favoured in SZRKT and MZYTS is that the distinction between claims and evidence might be a useful tool of analysis but is not itself the fundamental question. The fundamental question is the importance of the material to the exercise of the Tribunal’s function and the seriousness of the error.”

    [Emphasis added.]

19. A second general area of note in this matter, in light of the applicant’s manner of the articulation of her grounds and submissions, is in relation to how Tribunal decisions should be read. That is, they should be read fairly, holistically and with meaning derived contextually. They should not be read with an “eye keenly attuned to the perception of error” (Wu Shan Liang at [30]).

20. In his submissions the Minister made a useful analogy. That is, a Tribunal decision is not meant to be read in the same way as a statute. The relevant point, and relevant to the way the applicant has made her arguments in this case, with respect, is exemplified by what was said in WAEE at [47]:

    “The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”

Ground One

1. Ground one (and to an extent ground two) requires some understanding of the applicant’s exact assertion of jurisdictional error. Ground one asserts a failure to consider an “issue/claim”.

2. The applicant’s explanation before the Court was that “a claim can be expressed as an issue”. That is, “something that needs to be resolved”. At best, and although not specifically pressed in this fashion, I understood the applicant’s complaint to be as derived, for example, from what Robertson J said in SZRKT (at [111]) “[t]he fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error”. This, of course, depends, as Robertson J explained, on the circumstances of the case (with reference to VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117).

3. For current purposes, therefore, the question arises as to the “importance” of the representative’s submission to the Tribunal that the “unusually high frequency of the harmful events that the applicant was subject to over a short period of time”, in effect, “took her case outside that of an average person in Fiji and made her case unusual”.

4. If that question is decided in favour of the proposition put by the applicant now, the next question to be addressed is how the Tribunal dealt with this statement, irrespective of whether it is described as a “submission” or “claim” or “issue”.

5. The applicant directs attention to the following as evidence for this submission having been made to the Tribunal:

   1)The representative’s submissions at the hearing at T23, lines 18 ‑ 25:

   “[Agent]: I also remember you suggested to her about targeting. You suggest that she may not have been targeted, it’s just random, and this is the way crime is in Fiji. But if you look at the stat declaration, there have been several incidents of harm over a reasonably short period of time. Which could be very high compared to an average person in Fiji, what she has encountered. So it shows that her case is unusual in that sense, so there must have been some element of targeting involved.”

   2)At T28, lines 24 – 30:

   “Agent: Yeah, yeah, I think it’s V-B-A-S. I mean, I need to really check it if anything wrong with the letters. It’s Justice Crennan’s case, where her Honour held that it can be systematic if it is not random. As long as its non random then it’s systematic; you don’t need to have a pattern of behaviour. But here, you would see over a period of time that it has been over a period of time. Not just, we haven’t complained based on one, or two, if you look at it probably there are about eight, or nine, or even ten incidents.”

   [In context, it appears the representative intended to refer to VSAI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1602 and with reference to Minister for Immigration & Multicultural Affairs v Haji Ibrahim [2000] HCA 55; (2000) 204 CLR 1.]

6. For convenience, the representative’s submission to the Tribunal can be referred to as “the several incidents submission”. In all, the submission before the Court was that while the Tribunal considered some of these incidents individually, it did not consider the more nuanced several incidents submission made by the representative, that the cumulative effect of these incidents over a short period of time made the applicant’s case “unusual” and supported the proposition that she had been “targeted” for the infliction of harm.

7. The Minister agreed that the several incidents submission was not explicitly mentioned in the Tribunal’s decision record. However, the Minister relied on WAEE at [47] in this regard (see above at [37]).

8. In this light, the Minister proposed four reasons to be considered, cumulatively, to support his argument that the several incidents submission was “subsumed in findings of greater generality”. That is, that this submission was in the Tribunal’s mind and was considered, if not explicitly stated.

9. First, at [124] (at CB 153) the Tribunal states:

   “For the reasons outlined above, the Tribunal is not satisfied that if the applicant returns to Fiji there is a real chance that she will be persecuted in the reasonably foreseeable future for any Convention reason. The Tribunal has considered her circumstances individually and cumulatively and, in the absence of further evidence, is not satisfied that she does have a well-founded fear of persecution for a Convention reason.”

1. The Minister argues that this part of the Tribunal’s analysis supports his proposition that the several incidents submission was subsumed within the totality of the Tribunal’s decision. However, in my view, there is a high degree of uncertainty, even on a fair reading, that this extract assists the Minister in support of his proposition. Before the Court the Minister sought to explain his position by presenting a series of points of explanation in support of his contention, and, then arguing that when these are taken as a whole, the “explanation” for his assertion was such as to make good the proposition that the several incidents submission was subsumed in a finding of greater generality. On its own, there is sufficient uncertainty to be able to say that the several incidents submission is subsumed within the above conclusion ([124] of CB 153 and see above at [46]).

2. The Minister’s understanding of at least some level of uncertainty in this regard led to his emphasising that the relevant approach did not involve some predetermined “checklist”, but rather elements or indicia, arising from the relevant circumstances, that the Tribunal considered and addressed this matter.

3. However, as the applicant submitted, the Tribunal’s statement at [124] (at CB 153) is so broad and “template” in nature, that in the absence of any direct link or clear relationship to the remainder of its analysis, what is left is that the Tribunal considered the claimed incidents individually (with reference to what is set out elsewhere in its decision record). However, there is nothing to reveal the “cumulative” reasoning, or any focus on the thrust of the several incidents submission made by the representative to it (see also MZWPD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1095 (“MZWPD”) at [72] – [74] and SZGUW v Minister for Immigration & Citizenship [2008] FCA 91 at [55] – [60] and

   
   

   [65] – [67]).

4. Second, the Minister argues that elsewhere in its decision record the Tribunal comprehensively summarised the applicant’s claims. In particular, that she had claimed to be a victim of theft and vandalism in December 2011, home invasion, theft and assault in February 2012, and other “less serious” incidents between October 2011 and February 2012 (see variously CB 132 to CB 134). The submission was that the “issue” had been identified “at some point” (submitted with reference to WAEE at [47]).

5. It is the case that the Tribunal set out each of the individual claims made by the applicant of incidents of harm in its decision record. The Minister submits that that exposition done in sequential form, and when read in context of the use of the word “cumulatively” (at [124 at CB 153), provides a reasonable basis to draw the inference that the Tribunal understood that it was not just confronting individual events, but a sequence, or serial incidents, a claimed pattern of conduct against the applicant. That is, the Tribunal understood and considered that the applicant claimed, as an additional matter, that she feared harm on a cumulative basis, above and beyond each individual instance.

6. In my view, the Minister’s argument may gather some strength from the Tribunal’s specific reference, and acknowledgement, in its account of what occurred at the hearing, to the representative’s relevant submissions. The Tribunal specifically records ([66] at CB 138 to CB 139):

   “The agent made the following submissions

   - Just because there is a lack of information as to how Indian women living alone are treated, it does not mean it is not happening as Indian women are passive and there are incidents of rape. He questioned whether the lack of information as sufficient to assess the plight of Indo Fijian women without male protection.

   - As to relocation, he noted that even if she moves closer to her family, she would still be alone at night.

   - As to whether she was targeted for the reason she claims, he said that the fact is that there were a number of incidents in such a short period of time, which is unusual and suggests she was targeted.

   - What she encountered was serious and significant harm as she lost consciousness. He said she fears harm and death and it is not necessary that she has to suffer the physical harm

   - Further the sexual connotation, the fact she feared rape is serious harm.

   - As to a third of the police force being Indo Fijian, he referred to the article he had submitted and noted that the Fijian commodore who runs the police is a racist. He said the leaders are native and when race becomes an issue there is a history of many years of not acting.

   - He submitted that there is a Convention nexus of Indo-Fijian women without male protection and the native Fijians do not protect them.

   - As to the delay he submitted that it is difficult for someone like the applicant to understand how to apply for refugee status and she was still traumatised when she arrived and it took her a period to settle down and the first application takes much time to prepare. He submitted that the delay in applying for protection should not be held against her

   - He submitted that it is the youth she is afraid of and Indian women are seen as passive, compared to Fijian women and are particularly targeted.

   - He also submitted that because she reported the people around her, they were targeting her. I noted she indicated she did not know who targeted her.

   - He requested I consider her application for Ministerial discretion.

   - He referred to the decision of VBAS and said what happened to the applicant was systematic.

   - He indicated I should consider the cumulative harm”

7. Importantly, the Tribunal’s summary makes reference to ‘cumulative harm’. However, the difficulty is that if this reference by the Tribunal was intended as some “short hand” summary of the representative’s submission, then there is nothing else in the decision record to support that view.

8. When fairly read, I understand the representative’s submission to go beyond just a mere indication (“he indicated”) of the need to consider the effect of the incidents in a cumulative fashion. The several incidents submission can be fairly read as putting forward a “new” claim, or more precisely an integer of the claim, to fear harm by reason of the cumulative effect and implication of the claimed incidents of harm.

9. That is, the submission that the aggregation of the incidents, the time of their occurrence, and the comparison of those elements with others in Fiji, elevated the applicant’s individual circumstances to one where it could be inferred that she was specifically targeted by those from whom she claimed to hear harm.

10. In this light, the Minister’s description before the Court of the representative’s submissions as being the “cumulative incidents”  submissions (see for example at [17] of the Minister’s written submissions) is a distraction, or in a sense an incomplete representation of the full extent and impact of those submissions.

11. The “submission”, as a “claim”, also involved an assertion that, as a result of the accumulation of the incidents, what was revealed was that the applicant possessed a risk profile above that of the average Fijian and that she also feared harm because of this.

12. The Tribunal’s reference at [124] to “cumulatively” (at CB 153), and in the absence of any other relevant reference in its decision record, is not sufficient such as to say that the representative’s submissions, as described above, were considered in their entirety. In this sense the Tribunal failed to consider an integer of the applicant’s claims, expressly made (NABE (No 2)), or failed to deal with important material (SZRKT).

13. I should note that in SZSRS the Full Court said (at [49]):

    “In SZRKT the Minister submitted that failing to take the academic transcript into account did not amount to a jurisdictional error so long as it did not mean that the Tribunal overlooked the applicant’s claim or claims. In substance he made the same submission in the present case. But in SZRKT Robertson J rejected the submission as reflecting an approach to jurisdictional error that relied on categories or formulas. In particular, his Honour held (at [110]) that whilst the distinction between claims and evidence may be a useful tool of analysis, ultimately what is required is a case-specific analysis focusing on the importance of the ignored material and the seriousness of the error. His Honour said (at [98]) that ‘although ultimately it is the claim which the Migration Act requires to be considered, there are many ways, actual or constructive, of failing to consider the claim’.

14. Further, the Full Court in SZSRS stated at [54]:

    “It may be accepted that the authorities referred to by the Minister remain good law. Certainly they have not been overruled. It may be accepted, too, that the distinction between ignoring evidence and ignoring a claim can be useful. So much was accepted by Robertson J when his Honour described it (at [111]) as a ‘tool of analysis’. His Honour did not suggest that the previous authorities which had drawn the distinction were wrongly decided. The point his Honour was making was that it is too narrow an approach merely to ask in a case such as this whether the ignored material is a claim or part of a claim on the one hand or evidence on the other. Such an approach may provide the answer in some cases, but not in all. That is because, as his Honour also pointed out (at [98]), the Tribunal can fail to exercise its jurisdiction or fail to consider a claim in a number of different ways, including by ignoring evidence that is important to a claim, or ignoring evidence that, having regard to the course of its decision-making, acquires importance to the exercise of its jurisdiction. Some cases, including the category of case just referred to, may not comfortably fall on either side of the supposed claims/evidence divide, yet the error in ignoring the material may be serious and go to the exercise of the Tribunal’s functions. We respectfully agree with Robertson J’s analysis.”

15. In this light it does not matter how “the several incidents submission” is described or “labelled”. Plainly the “submission” was not “evidence”. That it was an express articulation of a part of the applicant’s claims to fear harm, and not dealt with by the Tribunal in its entirety, is sufficient to identify jurisdictional error (NABE (No 2)).

16. Further, and with respectful reference to what was said in SZRKT and SZSRS, the Tribunal did not deal with a matter of importance, and of such seriousness, as required in the proper exercise of its jurisdiction.

17. It is important to note in this context that the Tribunal accepted that the applicant was credible “…[a]s to her claim…”. It clearly stated it accepted her account of events in Fiji ([109] at CB 150). That included the various incidents put forward by the applicant.

18. The Tribunal’s subsequent reasoning in affirming the delegate’s decision in the face of this finding was, variously, and in important part, based on its view as expressed in various findings that the risk of “generalised robbery” and “possible violence” in Fiji existed, but that they were “opportunistic” and “random in nature” ([113] at CB 150 to [114] at CB 151).

19. That may have been the case in respect of each individual incident. The Tribunal’s findings (see further below in relation to the other grounds) were reasonably open to it to make. But what the Tribunal did not address was whether the aggregation of these incidents, their number, and their occurrence over a short period of time, said something relevant about the applicant herself which was, in turn, relevant to its assessment of the risk of harm. That was the submission made by the representative to it. I accept the applicant’s submission now that this was an important aspect of the applicant’s claim and, therefore, in all, reveals jurisdictional error.

20. The Minister’s remaining two arguments relevant to ground one do not, in light of the above, assist him, both of themselves and given the above, in a cumulative sense.

21. The Minister argued that the Tribunal accepted the high levels of generalised and opportunistic violence in Fiji ([126] at CB 153), the high level of violence against women ([117] at CB 151), and found an absence of any Refugees Convention motivation for this violence ([115] – [117] at CB 151 and [119] at CB 152).

22. In short, the argument was that when the Tribunal referred to the nature of what was country information about general violence, and the like, it came to various conclusions about whether the violence is targeted, or motivated for a Convention reason, or “generalised”.

23. I agree with the Minister that at least implicit in this consideration was, amongst other things, whether the applicant’s experience was “typical”. But that analysis did not include that part of the representative’s submissions as set out above.

24. The Minister also relied on the Tribunal’s finding in relation to complementary protection. In particular ([126] at CB 153):

    “The Tribunal appreciates that the applicant has been the subject of crime in Fiji and that the information indicates that that there is a risk of generalised robbery and possible violence against persons in Fiji. For the reasons outlined above the Tribunal has not accepted that the difficulties the applicant faced in Fiji or she claims she will face in Fiji are as a result of the reasons she claims, rather it is as a result of random acts of crime of opportunity or generalised crime. The Tribunal finds that any harm faced by the applicant on her return, is as a result of general crime and is faced by the population of the country generally and not by her personally. The Tribunal therefore finds that there is taken not to be a real risk that the applicant will suffer significant harm in Fiji as a result of general violence.”

25. I agree with the applicant that this does not assist the Minister’s argument. The Tribunal’s reference to “…[f]or the reasons outlined above…” (at [124] at CB 153) confines that assessment to, literally, the analysis above. An analysis that did not address an important element of the representative’s submissions.

26. It must be remembered that that element included the representative’s claim that the aggregation, and nature and timing of these incidents was indicative of a profile personal to the applicant. The Tribunal’s findings (at [126] at CB 153) that the harm feared was “…as a result of general crime…and not [faced] by her personally…” did not include any assessment of the “personal profile” claimed by the representative on the applicant’s behalf.

27. This last point also illustrates the centrality and seriousness of the matter raised by the representative in his submissions. In all, ground one is made out. There is no reason to refuse the relief the applicant seeks. Notwithstanding that conclusion, it is appropriate to consider the remainder of the applicant’s grounds (although see further below at [202] – [205]).

Ground Two

1. Ground two asserts that the Tribunal failed to consider an “issue” which was “expressly” articulated at the hearing. It is not necessary to repeat the matters raised above, and in ground one, concerning “issues”, “claims”, “evidence” and the like (see above at [25] – [35] and generally in the consideration of ground one). [The applicant’s submissions continued to use all these terms interchangeably.]

2. The applicant directed attention to the transcript of the Tribunal hearing at T11, lines 26 ‑ 38:

   “[Tribunal]: Are you saying this wasn’t random, you were robbed because you are an Indo-Fijian woman, living alone?

   [Applicant]: Yes.

   [Tribunal]: Is it that they want to harm you, directly, or is it that they just see you as an easy target, an easy place to rob because you’re a women living alone?

   [Applicant]: Because these things have been happening since my husband died. So that’s why I think that’s one of the reasons, because I’m by myself.”

3. The applicant submitted this was also to be seen in light of what she stated in her Statutory Declaration of 16 May 2012 (CB 53):

   “(3) My Husband died from Hypertension on 15/10/11.

   (4)My son came to Fiji and we did the funeral and then my son left for Australia after that I was all alone. After my husband died my situation became unsafe.”

4. In short, I understood the complaint to be that a part, or integer, of the applicant’s claim was that she was targeted after her husband’s death and her son’s departure for Australia. She was, in these circumstances, a single woman living alone and therefore perceived to be an “easy” target.

5. The applicant claimed, before the Court, that this was a “specific” claim. From oral submissions to the Court, I understood this to mean an express claim that the “targeting” commenced as soon as her husband died. This was also expressed to be that she was targeted because of her husband’s death. That is, she was targeted “for a particular reason”. The applicant asserts that the failure to deal with both these aspects, therefore, revealed jurisdictional error as explained in such cases as NABE (No 2).

6. The Minister made short written submissions in relation to this ground. However, apart from the “general” matter referred to in relation to ground one, he made no specific submissions at the hearing before the Court.

7. In the circumstances referred to above (see [20]), the Minister was given the opportunity to address in supplementary written submissions, those grounds that he was unable to canvas at the hearing (as set out below, and in any event supplementary written submissions were necessary given the way that ground four “developed”). The Minister submitted he was content to rely on his initial written submissions (see [15] of the Minister’s supplementary written submissions). This included ground two.

8. The Minister’s response therefore to this ground was that the applicant’s complaint is directly contradicted by what is set out in the Tribunal’s decision at [114] (at CB 151), [116] – [117] (at CB 151) and [120] (at CB 152).

9. That was as follows:

   1)Paragraph [114] (at CB 151) addressed the applicant’s claim that she was targeted because of her race or because of any one of a number of particular social groups to which she said she belonged. The Tribunal addressed the circumstances of the applicant in December 2011 and February 2012 incidents (noting her husband died on 15 October 2011).

   2)Paragraph [116] (at CB 151) dealt with the Convention ground of “race”. It again referred to the two incidents.

   3)Paragraph [117] (at CB 151) and [120] (at CB 152) dealt further and in detail with particular social groups. There is specific mention of the 2012 incident.

10. It is clear, in my view, that on a plain, let alone a fair (holistic and contextual) reading, the Tribunal dealt with the claim, or claims, referred to in ground two and each relevant aspect. The Tribunal dealt with the matter of the applicant being a single woman living alone, and in the context of all the particular social groups raised by her.

11. The applicant’s reliance now on her Statutory Declaration of 16 May 2012, only reinforces that conclusion. The applicant plainly stated she was left alone after her husband died and her situation then became “unsafe”. She gave two examples, the December 2011 and February 2012 incidents.

12. The part of the Tribunal hearing transcript relied on by the applicant now does no more than reflect the extent of the relevant claim made by the applicant. The elements of the claims made are identical. They are that her husband died, and she was targeted because she was a woman living alone (“I’m by myself”).

13. The applicant’s attempt to dissect this claim now into “broad” and “specific” parts does not assist her. The Tribunal focussed on what the applicant now described as the “broad claim” (a woman living alone), and the specific claim that the incidents of harm, specifically, commenced after and, in context, as a result of her husband’s death. Ground two is not made out.

Ground Three

1. Ground three, again, asserts (as in ground one) that the Tribunal fell into jurisdictional error because it failed to consider “all the harmful events” in deciding whether she was targeted and harmed for a specific reason ([23] of the applicant’s initial written submissions). The applicant relied in particular on MZWPD at [72] – [74].

1. In his submissions on this ground, the Minister saw ground three as being a repetition of ground one, and relied on his submissions in relation to that ground.

2. Before the Court, the applicant stated that there was some distinction between ground one and ground three. Ground one was said to involve a claim that was clearly articulated, whereas ground three was said to rely on the proposition that the Tribunal’s duty “arises from the Statute”.

3. The latter submission was not explained. The reference to MZWPD appears to have been for the purpose of emphasising the argument that the Tribunal considered claims “in isolation” and did not then consider the cumulative effect of the aggregation of those claims.

4. To the extent that this seeks to repeat ground one, then what is said above applies here. The reference in submissions to the matters in [108] (at CB 149 to CB 150) of the Tribunal’s decision may have been an attempt by the applicant to argue that the Tribunal, in its subsequent analysis, focused on the two incidents of December 2011 and February 2012, and did not address the other elements in the applicant’s claim.

5. If this was the case, it must be said, this was left undeveloped as an argument beyond the “cumulative complaint”. If this ground was meant as another example of the complaint in ground one, then it should have been pleaded as a particular to ground one. If it was meant to be something else, in the absence of any satisfactory explanation, it is not made out.

Ground Four

1. Ground four, when read with the particulars, is of such wide ambit that it is best to deal with each particular separately.

2. It is of note that particular (a) alleges a failure to deal with a claim, particular (b) is a similar assertion of legal error, but with a different focus. Particular (c) asserts irrationality, illogicality, and Wednesbury unreasonableness. It should have been pleaded as a different ground. However a common thread is that the various assertions of legal error are said to arise from the incident in 2012 (“the 2012 home invasion incident”).

3. Particular (a) asserts that the Tribunal failed to deal with the claim that during the 2012 home invasion incident the applicant fainted and hit her head on the ground while she was seeking to save herself from sexual assault, in circumstances where the assailants were seeking to remove her clothes.

4. In oral submissions before the Court, the applicant claimed that the Tribunal failed to address the reasons for the 2012 home invasion incident. In particular, that in the circumstances advanced to the Tribunal it was sufficient to then be able to say that there was a “sexual motive” for the home invasion, but the Tribunal did not deal with this.

5. To make good the first proposition, the applicant referred to the following:

   1)The applicant’s Statutory Declaration of 16 May 2012 ([9] – [10] at CB 54):

   “[9] On 26-02-12 while I was sleep around 1am there was the noise of dogs barking I got up and went to the toilet and came and lied down on the bed. Suddenly the windows broke and two persons came into the house they tied up and one person ransacked the house. One person pushed me against the wall and he had a rod which he pushed against my back and told me to stop shouting or he will kill me. Both of them had hood on but their voice and body shapes showed they are native Fijians. One of them said you Kaindia why don’t you people go home to India. The other person came and started pulling my clothes and the other person kept pushing me against the wall.

   [10] I tried to [free] myself and fell down in that process and I fainted. When I woke up there was no light. I lit the kerosene [lamp] because the power has been cut.”

   2)The Tribunal’s decision at [43] (at CB 135):

   “She referred to the event of 26 February 2012 and described consistent with her previous evidence and her statutory declaration what happened that night. She said while one of the men was holding her against the wall with a pole with an iron bar after she came out of the bedroom. Another person robbed the house. She said an iron bar was held against her neck. She said she was so scared and she thought they would do something to her, that she tried to save herself and was pushed to the ground, fell on her neck and fainted until 3am in the morning. She said the native Fijians were gone when she became conscious.”

   3)

   The transcript of the Tribunal hearing at T13, lines ‑1-5

   
   

   and 31 – 35:

   “[Applicant]:…they both talked something, or said, exchanged something in Fijian. And I was so scared, I was trembling. And then I – I heard that they would do something to me and then I tried to save myself. And then they pushed me to the ground, and I fell on the ground. And when I fell on the ground, I hurt my neck and then I fainted. When I came to conscious, or when I woke up, it was, like, 1 o’clock.

   …

   [Applicant]: And then after that I went, and then with the lamp – I held the lamp in my hand and went to my neighbour and knocked their door. And I was so scared I felt that I would do something to me. And I felt that today, I fainted when they were around. If they come back and do something else, and they do something to me, I felt that I would rather kill myself.”

   4)The transcript of the Tribunal hearing at T17, lines 5‑22:

   “[Tribunal]: I mean, I suggest to you that if they wanted to harm you, they would’ve. But it seems that you were harmed as a result of wanting to rob your house.

   [Applicant]: Because if they came to rob my house, why would they pull my dress off and, you know, do something like that.

   [Tribunal]: I also suggest you’ve never said your dress was totally taken off. They pulled at your clothes, yeah, pulled?

   [Applicant]: Because they have pulled the dress off in 2000, and that’s why when they were doing it now I was scared that they would do it again. But they were pulling my dress.

   [Tribunal]: Is there anything ---

   [Applicant]: Because I was trying to save myself, and I fell down.”

   5)The transcript of the Tribunal hearing at T23, lines 36‑40:

   “[Representative]: And also, member, the necessary connotations. She could have easily put out – gone to a rape situation; although it did not go to that stage. So there was serious harm, in that sense; she feared rape. So even if she had not gone through – the fear of rape is serious harm.”

   6)The transcript of the Tribunal hearing at T29, at lines 10 – 13:

   “[Applicant]: Because they were pulling at my dress and I was trying to save myself, while they were pulling my dress. And then they pushed me when I was doing that. And that’s why I fell.”

6. The applicant submitted that when regard is had to the entire context, what emerges is that the applicant feared rape, and that some of the important elements were the late hour, and that the assailants were “pulling” at her dress. Further, that these were the elements pressed in submissions by her representative to the Tribunal.

7. The complaint is that when the Tribunal came to consider this incident it did not consider this “sexual assault” element. In particular, the applicant referred to the Tribunal’s decision record at  [114] (at CB 151):

   “In the Tribunal’s view the evidence of the applicant does not reflect that the applicant was targeted because of her race or because of the particular social groups she claims to belong, rather they were opportunistic in nature. As to the incident of violence perpetrated against her in 2012 the evidence suggests that unfortunately her house was robbed while she was at home. The fact she was not harmed after she fainted, indicates that the reason for the intrusion into her house was to rob the home and not to target her for the essential and significant reason of her race or her membership of the particular social groups she has claimed. The evidence she has provided indicates she was forcibly restrained to ensure no one was alerted to the robbery and once they had had her belongings they fled. I expect that if they were targeting her for the reason she claims that she would have been harmed after she fainted. In this regard I find that the injury to her neck was incidental to the opportunistic robbery and not as she was targeted for the reasons she claims. Further the initial robbery in 2011 occurred when she was not at home and this supports it was opportunistic in nature rather than being directed at her as Indo-Fijian or a member of the particular social groups she claims to belong.”

8. It is the case that representations, or submissions, made by migration agents, or those who represent applicants before the Tribunal, are to be treated as the submissions of the applicant. Unless, of course, it may be otherwise shown that the “agent” acted outside the scope of any authority given to her or him.

9. However, some important distinctions must be drawn. There can be no doubt that an agent can present to the Tribunal factual assertions, on behalf of an applicant, that are part of, or become a part of, the relevant factual matrix forming the basis from which the feared harm is said to arise.

10. Nor can there be any dispute that an agent, on behalf of the applicant, may present arguments that seek to put the factual matrix, or elements of it, into a Refugee Convention or complementary protection context. For example, as in this case, that some of the facts gave rise to a Convention nexus of membership of a particular social group.

11. But, the Tribunal is not obliged to uncritically accept such arguments or submissions (Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994)

    
    

    124 ALR 265). The relevant findings of fact, including how the evidence and claims presented to it should be viewed as against the various statutory tests set for the Tribunal are for the Tribunal to make in the proper exercise of its jurisdiction.

12. In the current case, this leads, initially, to a focus on the actual evidence presented by the applicant, and her representative on her behalf, of the events of the incident on the night of 26 February 2012, as opposed to the representative’s views of what should be made of that evidence.

13. In her written statements of her claims, and in her evidence before the Tribunal, the applicant made no reference, certainly no express statement, that she feared sexual assault in relation to the events of that night, or that the men who came into her house attempted to remove her clothes to perpetrate any sexual assault, or that she claimed touching (“pulling”) of her clothes was itself a sexual assault.

14. The applicant’s actual evidence was as follows:

    1)The applicant’s Statutory Declaration of 16 May 2012 ([9] – [10] at CB 54):

    “[9] On 26-02-12 while I was sleep around 1am there was the noise of dogs barking I got up and went to the toilet and came and lied down on the bed. Suddenly the windows broke and two persons came into the house they tied up and one person ransacked the house. One person pushed me against the wall and he had a rod which he pushed against my back and told me to stop shouting or he will kill me. Both of them had hood on but their voice and body shapes showed they are native Fijians. One of them said you Kaindia why don’t you people go home to India. The other person came and started pulling my clothes and the other person kept pushing me against the wall.

    [10] I tried to [free] myself and fell down in that process and I fainted. When I woke up there was no light. I lit the kerosene [lamp] because the power has been cut.”

    2)The transcript of the Tribunal hearing at T13, lines 1-5:

    “[Applicant]:…they both talked something, or said, exchanged something in Fijian. And I was so scared, I was trembling. And then I – I heard that they would do something to me and then I tried to save myself. And then they pushed me to the ground, and I fell on the ground. And when I fell on the ground, I hurt my neck and then I fainted. When I came to conscious, or when I woke up, it was, like, 1 o’clock.

15. As the Minister submits, it was the applicant’s representative who then “extrapolated these comments into a claim of rape in his submissions at the hearing” ([20](1) of the Minister’s initial written submissions). More precisely what the representative said was, as reported above (T23, lines 36 – 40):

    “[Representative]: And also, member, the necessary connotations. She could have easily put out – gone to a rape situation; although it did not go to that stage. So there was serious harm, in that sense; she feared rape. So even if she had not gone through – the fear of rape is serious harm.”

16. The reference there to “the necessary connotations” makes plain that the representative was seeking to give his view of what could be made of the factual events and how the Tribunal should view them.

17. It is important to note, in light of the applicant’s ground, that the Tribunal explored with the applicant the reason that the men broke into her house, and further, the exact “nature” of their conduct (T16, line 38 to T17, line 23):

    “[Applicant]: We can put the alarm and bars and these things, but the problem is we can’t even – I can’t even leave the house. I can’t go out of the house. Because these local Fijians, they give me hard time when I go out.

    [Tribunal]: Your evidence of the difficulties you’ve face previously are about robbery, not about being targeted when you’re outside your house.

    [Applicant]: But this is what I thought, because of – since my husband died, I’m just too scared to live there. And I thought it was just robbery, but I don’t think it is just robbery.

    [Tribunal]: I mean, I suggest to you that if they wanted to harm you, they would’ve. But it seems that you were harmed as a result of wanting to rob your house.

    [Applicant]: Because if they came to rob my house, why would they pull my dress off and, you know, do something like that.

    [Tribunal]: I also suggest you’ve never said your dress was totally taken off. They pulled at your clothes, yeah, pulled?

    [Applicant]: Because they have pulled the dress off in 2000, and that’s why when they were doing it now I was scared that they would do it again. But they were pulling my dress.

    [Tribunal]: Is there anything ---

    [Applicant]: Because I was trying to save myself, and I fell down.”

18. The Tribunal dealt with the applicant’s claim and made its findings in light of the factual evidence as put by the applicant (see [114] at CB 151 and see above). Further, at [120] the Tribunal found (at CB 152):

    “As indicated above crime in Fiji is considered generalized in nature and random and opportunistic. The information does not support that the applicant was systematically targeted for the essential and significant reason of her membership of the particular social groups of Indo Fijian woman living alone without the protection of a male, as she is a woman without a husband and a single woman in Fiji without male protection or as a woman. I expect if she was targeted for these reasons she would have been further harmed after she fainted in 2012, rather than being left to wake up. It follows as I do not accepts she was targeted amounting to persecution as a result of the particular social groups she claims to belong to, I do not accept if she were to return to Fiji she would be harmed for the essential and significant reason of being a member of any of these particular social groups.”          

    [Errors in the original.]

19. It is, at least implicitly, clear that the Tribunal did not accept the representative’s submission that the applicant was targeted for “rape”. In my view, such a claim did not expressly, or clearly, arise on the evidence presented. At best, for the applicant’s argument now, is the reference to the “pulling of clothes” or that the men might “do something to her”. The Tribunal dealt with the applicant’s statements in this regard. However they be described, whether as “claims” or “evidence”, it makes no difference in these circumstances.

20. Ground four, particular (a) is not made out. As stated above, the applicant’s representative before the Tribunal attempted to put to the Tribunal a particular view of these events. The Tribunal was not persuaded by this. There is no legal error in these circumstances. The pleading of this particular now can only be seen, in the circumstances, as an attempt to press that view before the Court now. That is, the particular seeks impermissible merits review (Wu Shan Liang).

21. In particular (b) to ground four, the applicant asserts that the Tribunal failed to deal with the claim put before it in her Statutory Declaration (CB 54) that the men who broke into her home in the 2012 home invasion incident used a racist taunt ([9] at CB 54):

    “On 26-02-12 while I was sleep around 1am there was the noise of dogs barking I got up and went to the toilet and came and lied down on the bed. Suddenly the windows broke and two persons came into the house they tied up and one person ransacked the house. One person pushed me against the wall and he had a rod which he pushed against my back and told me to stop shouting or he will kill me. Both of them had hood on but their voice and body shapes showed they are native Fijians. One of them said you Kaindia why don’t you people go home to India. The other person came and started pulling my clothes and the other person kept pushing me against the wall.”

    [Emphasis added.]

22. The applicant seeks to give “evidence”, through her pleading, that the word “Kaindia” is an insulting and racist term, and that, in effect, what the men meant by using it was to emphasise that native Fijians do not want Indo-Fijians in Fiji.

23. It is to be noted that the pleading in the ground was focussed on an allegation that the Tribunal failed to “deal” with this claim. In written submissions the complaint appeared to have taken on an expanded focus. That is, that the use of this term required the Tribunal to consider whether the “home invasion was racially motivated” ([31] of the applicant’s initial written submissions).

24. In her written submissions to the Court, the applicant made reference to another affidavit made by her on 20 June 2013, and filed with the Court’s Registry on 24 June 2013 (see at [32] of the applicant’s initial written submissions). The affidavit sets out the applicant’s understanding of the use of the word “Kaindia” in Fiji and her experiences of it.

25. There are at least two difficulties for the applicant here. First, the applicant made no attempt to read this affidavit into evidence before the Court. Further, the Court gave the applicant, through her legal representative, the specific opportunity to do so when it sought to confirm that she wished to proceed with two affidavits (those referred to above).

26. Second, even if some attempt had been made to read the affidavit, there is difficulty as to the relevance of the substance of the affidavit to a fact in issue in these proceedings. The subject matter of the affidavit is clearly directed to some of the applicant’s experiences in Fiji involving the use of the word “Kaindia”, her reaction to it, and the claim that its use by the men who broke into her house meant they were “racist Fijians”.

27. These are all matters that properly should have been put to the Tribunal. It is trite to say that is it not for the Court to decide on the merits of the applicant’s claims to fear serious harm in Fiji for reason of race (in this particular context).

28. The written submissions before the Court also sought to explain the claimed insulting and racist meaning of this word (see [32] of the applicant’s initial written submissions). The submissions also asserted that even without a “clear understanding of the meaning of the word ‘Kaindia’, it was obvious that an Indo-Fijian was being asked to go back to India” (see [33] of the applicant’s initial written submissions). This was said to be a “racist act”. That is, that racism was one of the reasons for the home invasion and that the Tribunal failed to “consider that issue”.

29. In oral submissions, in addition to the matters referred to immediately above, the applicant submitted that the use of the word “Kaindia” gave a Refugees Convention nexus to the applicant’s claim to fear harm from native Fijians for reason, amongst other things, of her “race” (Indo-Fijian ethnicity). Further, and generally, that the applicant’s claims were put forward as including the Refugees Convention ground of race.

1. The applicant also submitted to the Court, contrary to the ground as pleaded, that the Tribunal gave “cursory” consideration to her representative’s submission on this “issue”.

2. Two things may be said. First, the Tribunal did not fail to consider this information or the submission made to it. It simply gave it certain weight in the analysis of the question of the availability of protection to the applicant in the Refugees Convention sense. Weight to be assigned to evidence before it is, of course, a matter for the Tribunal (WAEE at [46] – [47] and NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ, Lee v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 464 at [27] per French J (as he then was) and Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123; 113 ALD 46 at [45] per Spender, Moore and Foster JJ).

3. Second, this is another example of the applicant seeking to re-agitate before the Court arguments that were not persuasive before the Tribunal. This is an attempt to seek impermissible merits review (Wu Shan Liang). In all, ground five is not made out.

Ground Six

1. Ground six asserts that the Tribunal fell into jurisdictional error because it misunderstood some aspects of the applicant’s claims which then formed the basis for an “adverse” finding against the applicant.

2. The ground takes issue with the Tribunal’s analysis at [109] (at CB 150):

   “I accept, due to her consistent evidence to the Tribunal and the Department that the applicant has been largely credible as to what happened to her in Fiji. I accept as it is consistent with country information above that the applicant and her husband were subjected to violence and/or mistreatment by native Fijians in 2000. While I accept that the applicant has been the subject of two robberies in 2011 and 2012 and has faced the incidents she claims, I do not accept her new claim which she referred to at the hearing before me that she was and will be targeted by a particular group of Fijians in her area. At the beginning of the hearing before me the applicant claimed that she was targeted by a group of Fijians in her area because she told the police about them after the 2011 robbery. I do not accept this to be true as later in the hearing when I questioned her about this group she said she did not know who they were. I expect if it were true that she was targeted by this group as a result of her going to the police, she would have had to be able to identify them but her evidence was that she did not know who they were. I therefore find that she was not and will not be targeted in the future by a particular group of Fijians as a result of her complaining about them to the police. I accept she is claiming she will be targeted by Fijians and/or Fijian youth.”

   [Emphasis added.]

3. There appear to be two complaints. First, that the Tribunal found it was a “new” claim, when it was not. The applicant says that she stated her suspicion about the identity of the “thieves”, in relation to the 2011 incident, as being local “Fijian boys” in her Statutory Declaration (see [6] at CB 53).

4. The applicant’s affidavit of 22 June 2013 seeks to transcribe a particular question by the delegate to the applicant at the delegate’s interview and the applicant’s answer ([4] of the applicant’s affidavit of 22 June 2013):

   “The discussion about what was said on the issue at the hearing conducted by the Department appears between minutes
   36.35 –37.35 as follows:

   Delegate: And you reported to the police

   Applicant: Yes, I did inform the police and they also came and they checked everything. They took the finger prints. They told me if they find out something they will let me know. They also asked me if I knew who would have done that. But I said to them because my house is at the end of the street. I would have no idea lot of Fijian people there I have no idea who would have done that.”

   I ultimately read this into evidence because of the reference to “Fijian people” in her area(see also [15] above).

5. Of itself, the description of the claim as “new” is not a misunderstanding of the evidence as such, and certainly not probative of any claim that the Tribunal ignored this evidence. In any event, the applicant’s statement to the delegate makes plain that she had “... no idea who would have done that…”. While there was a reference to “a lot of Fijian people there…”, there was no actual allegation made against the “Fijian people”.

6. Even if it could be seen as such, it would only reveal jurisdictional error if it led to a claim being ignored or misconstrued (WAEE at [46], NABE (No 2) at [63]), or if it was of such “fundamental importance” to the exercise of the Tribunal’s jurisdiction (SZSRS at [29], SZRKT at [111] – [112]).

7. Here whether the claim was a “new” claim (or not) was not the reason, or even a part of the reason, as to why the Tribunal rejected the applicant’s claim that she was targeted by a group of local Fijians. Plainly the reason the Tribunal rejected this claim was because, contrary to the applicant’s initial claim at the Tribunal hearing that the thieves were local Fijians, she later, in the same hearing, gave evidence that she did not know who they were.

8. I note, although not determinative of this complaint, that the Tribunal’s reference to a “new” claim may be explained by the Tribunal’s comment to the applicant at the hearing that (T14, lines 32 ‑ 35):

   “[Tribunal]: But you’ve never said this before. In the department interview you never gave evidence when similar questions were asked. Which makes me question now whether you’re telling the truth about these Fijian people living near your house.”

   This latter reference plainly echoes what is in the extract from the interview with the delegate.

9. The Tribunal’s findings at [109] (at CB 150) were reasonably open to it in light of the evidence the applicant gave at the Tribunal hearing. Whatever may have been said in the Statutory Declaration and the interview with the delegate, it must be seen in light of the applicant’s subsequent evidence before the Tribunal at the hearing, which was the basis for the Tribunal’s relevant finding.

10. The second complaint refers to [110] (at CB 150) of the Tribunal’s decision record:

    “It follows and for the same reasons I also do not accept her evidence to be true that she did not go to the police in 2012 as she feared retribution from this group because she reported them in 2011.”

11. The applicant also referred to various parts of the transcript of the Tribunal hearing (see [53] of the applicant’s initial written submissions and [18] of the applicant’s supplementary written submissions):

    1)T10, line 18 to T11, line 20:

    “[Tribunal]: Why do you fear return to Fiji?

    [Applicant]: Because I am scared of the Fijian People. Because they come to my house and they take things from my house.

    [Tribunal]: And why do you think that will happen to you if you return to Fiji?

    [Applicant]: Because I’m very scared, because they have tortured me. They’ve been torturing me. They have held a iron rod, or something, against my neck. And then they pressed it.

    [Tribunal]: So ---

    [Applicant]: They put me in a hole in the wall, and they then pressed my neck.

    [Tribunal]: So what do you fear will happen to you in the future if you return?

    [Applicant]: Because I’m afraid these things, or this thing will happen again with me if I return.

    [Tribunal]: So why do you think they would harm you?

    [Applicant]: Because on 17th December, 2011.

    [Tribunal]: Okay, I want to talk about the future. So we can talk about the past, but I just want to talk about ---

    [Applicant]: Mm.

    [Tribunal]: --- why do you think they would harm you in the future?

    [Applicant]: Because I don’t know what they will do. Because when I lodged the report, I told them that it’s the Fijian people around my house, and they are hurting me, they have done the robbery.

    [Tribunal]: So you think these Fijian people – sorry – I’m just not understanding. What, do you think these particular Fijian people will target you, is that what you’re saying, or generally?

    [Applicant]: Fijian people they give hard time to everybody, especially a woman living by herself, who doesn’t have a husband. They give her a hard time. I’ll just confirm, especially an Indian woman living by herself, who doesn’t have a husband.”

    2)T14 line 22 to T15 line 22:

    “[Applicant]: This is two months after the death of my husband. I had gone to town for my shopping, and then they robbed my house. They took everything from my house. Whatever they could find. The gold, and the CD player, or something. Then I went to the police to lodge a report. Police came and they check everything and they did fingerprint and they said, ‘We’ll let you know.’ And then they asked me, ‘Do you think, or can you tell us who do you think would have done that?’ And I told them that these Fijian people who live near the house, and there’s the passage, and maybe they have done something like that.

    [Tribunal]: But you’ve never said this before. In the department interview you never gave evidence when similar questions were asked. Which makes me question now whether you’re telling the truth about these Fijian people living near your house.

    [Applicant]: At that time I did say that, you know, these Fijian people living close by would throw stones at my house, maybe these people. But I think, I wasn’t sure, but I told them that I think it’s the same people.

    [Tribunal]: And at the department interview ---

    [Applicant]: Because I told the police that it’s possible that it’s the same Fijian people. And then they never came back and told me anything. And then I went to the police station and I asked them, ‘Is there any result from the finger prints you took?’ And they said, ‘Sit down, we’ll tell you’. And then I sat for a while, they didn’t tell me anything and I returned home. Second, and then after that the Fijian people were giving me more hard time. And they were doing all sort of things, they were stealing my clothes. They were taking things away from house. And they were just giving me hard time.

    [Tribunal]: But who are these Fijian people?

    [Applicant]: Because I haven’t seen their face, because they are from the same area where I was living.

    [Tribunal]: But you said before it’s pretty harmonious in your street where you live, and in your area.

    [Applicant]: The neighbour, neighbourhood and the area looks fine, and that’s why I’m – I don’t know who is doing that, or who has done that? Because that – the image of neighbourhood around my house is okay. But behind my house it’s all residential area, and there are a lot of people in that area.”

    3)T18, line 30 to T19, line 16:

    “[Tribunal]: I want to put to you some information under section 424AA of the Act. And what I’m going to do is I’m going to put the information to you and then I’m going to – just let me ask before I do that, I just want to clarify something. So you’re fearing harm from the Fijian population, generally, or the Fijian boys in your area?

    [Applicant]: I am afraid of all Fijian people.

    [Tribunal]: It’s your claim then that Fijian people as a whole will target you because you’re a Indo-Fijian woman, living alone?

    [Applicant]: Yes

    [Tribunal]: And you said before, and that’s what I couldn’t understand, this thing about – so there’s no group that’s targeting because you’ve reported them to the police. Is that right?

    [Applicant]: I didn’t follow that.

    [Tribunal]: Is there a group of Fijians? I’m just a bit confused. So is there a group of Fijians that are targeting you because you reported them to the police?

    I mean I might be wrong. I’m just a bit confused. Is there a group of Fijians who are targeting you because you reported them to the police after the November incident? No, the 2011 incident?

    I don’t think you’re saying that, because you said you didn’t know who they were.

    [Applicant]: Yeah. I don’t know who those people are.”

    4)T25 line 33 to T26 line 34:

    “[Representative]: Now, member, you also asked about whether she’s afraid of particular Fijians or general Fijians, and she says general Fijians. I think group that she mostly fears is the group that – you know youth, and, you know, and adolescents up to say forty.

    [Tribunal]: Okay.

    [Representative]: Because that’s the group that’s, like, that do all these crimes. So they target women, because Indian women are seen as passive. And also there has been a history of targeting the weak people. So over the several race riots Indo-Fijian women were particularly targeted, because they’re vulnerable. They are not like Fijian women who are feeling so strong headed, these are very passive because of the culture. You know – and, so – and also, in that instance, because she reported the people who around her house, they targeted her. If she moves to another place, if someone steals her something, and she goes and complains, and they will target her. That’s – so therefore, it’s the general population, but not the whole population. This young – you know, person of that age group that I was talking about.

    [Tribunal]: But she never said before that there was a group. I mean it was her evidence that – and I take it was the youth. She didn’t even know who was targeting her.

    [Representative]: Yeah. I think she – I think when you put that to her, member, she also came out with the response to you. And I think, with respect, she was right. Because I remember I sat through the delegate’s hearing, and she did mention there was a group of people close to her place and so that’s the way she put it. Although not as clear as you would’ve liked to her.

    [Tribunal]: But she couldn’t say who they were to the police. It’s not like she dobbed them in.

    [Representative]: Yeah. I think she – what she said was that there was a group, some kind of an area, or the – small area where they came from. I know that it’s not easy, but they took fingerprints though, which could have been – they could have used it to target a small area that she was pointing to.

    [Tribunal]: Which shows the police were ---

    [Representative]: Well, did something. Yeah, did something. But I’m not saying the police didn’t do anything, when they did something. But yes, saying is – I think, member, the complaint she has is, she makes a complaint, they do something, they don’t come back at all. And then when she goes to the police station, he asks me to sit and ignore you, and you get frustrated and come back. So that’s the hard part.”

12. This point was the subject of some lengthy submissions at the hearing before the Court. However, the applicant was unable to satisfactorily explain how the Tribunal misunderstood her evidence. The applicant’s submissions were essentially to the effect that the Tribunal should have accepted, or found, that based on the applicant’s evidence, it could be satisfied that the applicant would suffer serious or significant harm on return. While a different Tribunal member may have viewed the evidence the applicant refers to in a different light, that is not sufficient to say this Tribunal member misunderstood the claims or evidence.

13. The Tribunal’s finding at [110] (at CB 150), and the findings at [109] (at CB 150), were all reasonably open to it to make and were findings for which the Tribunal gave cogent reasons (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407). The applicant may be aggrieved at the view the Tribunal took of this evidence and that it was not persuaded by it, but this does not reveal jurisdictional error. This again seeks impermissible merits review (Wu Shan Liang). Ground six is not made out.

Ground Seven

1. Ground seven seeks to apply all the claimed jurisdictional errors said to have been made by the Tribunal as set out in grounds one to six, to its assessment of the complementary protection criterion. This broad assertion was not explained before the Court. To the extent that I have found jurisdictional error in ground one, then it applies also to ground seven, although I note the applicant did not specifically explain how this was the case. As to the remainder, ground seven is not made out because, for the reasons set out above, I could not find jurisdictional error in grounds two to six.

Ground Eight

1. Ground eight asserts that the Tribunal fell into jurisdictional error in that by looking at the case of a “different person” it did not give genuine consideration to the applicant’s claim as against the complementary protection criterion.

2. The particulars direct attention to [127] of the Tribunal’s decision (at CB 153) where the Tribunal used male personal pronouns (“he”, “his”) to refer to the applicant and referred to the relevant country as “Afghanistan”. The applicant says that the Tribunal “cut and paste[d]” elements from another decision. The complaint, as expressed in particulars, was that the Tribunal, therefore, only gave “cursory consideration” to the issue of complementary protection ([127] at CB 153):

   “The Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that she will be subjected to torture, that she will be subjected to cruel or inhuman treatment or punishment or that she will be subjected to degrading treatment or punishment as defined. The Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Afghanistan, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act.”

3. As is clear, it is the case that the Tribunal did use the male personal pronoun on four occasions in this paragraph and did refer to “Afghanistan.”

4. It must be said that the High Court’s often cited direction, as stated above, in Wu Shan Liang has particular application here. As quoted above, the High Court stated at [30] – [31]:

   “[30] When the Full Court referred to ‘beneficial construction’, it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic (22). In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be ‘concerned with looseness in the language … nor with unhappy phrasing’ of the reasons of an administrative decision-maker (23). The Court continued (24):

   ‘The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.’

   [31] These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed…”

5. In this light, the complaint is not made out. First, reading the decision holistically, the Tribunal’s relevant findings, and its analysis of the applicant’s claims as against the complementary protection criterion is set out at [126] (at CB 153):

   “The Tribunal appreciates that the applicant has been the subject of crime in Fiji and that the information indicates that that there is a risk of generalised robbery and possible violence against persons in Fiji. For the reasons outlined above the Tribunal has not accepted that the difficulties the applicant faced in Fiji or she claims she will face in Fiji are as a result of the reasons she claims, rather it is as a result of random acts of crime of opportunity or generalised crime. The Tribunal finds that any harm faced by the applicant on her return, is as a result of general crime and is faced by the population of the country generally and not by her personally. The Tribunal therefore finds that there is taken not to be a real risk that the applicant will suffer significant harm in Fiji as a result of general violence”

1. In that paragraph, the Tribunal made no error in relation to the references to the applicant’s gender or the relevant country. I note that in that paragraph the personal pronoun was used correctly on six occasions, and there are five references to the correct country of reference, Fiji.

2. What appears at [127] (at CB 153) are the conclusions that flow from the findings at [126] (at CB 153). Paragraph [127] is plainly a formulaic presentation. But that, on its own, and even with the “errors” in references relied on now, do not reveal that the Tribunal failed to properly consider the applicant’s claims as against the complementary protection criterion.

3. The reason for the “formulaic” approach is evident when regard is had to the elements statutorily set out at s.36(2)(aa) and s.36(2A) of the Act. At [127] (at CB 153), the Tribunal was applying the findings particular to the applicant’s circumstances as set out at [126] (at CB 153) to the statutory criteria in the Act which apply commonly to all applicants for protection visas. The errors at [127] are plainly the result of inadequate proof reading. However, they do not indicate that the Tribunal failed to discharge its relevant duty in this regard without a “consciousness and consideration of the submissions, evidence and material advanced by the visa applicant” (Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 at [38]). In all, this does not reveal jurisdictional error as contended for by the applicant’s ground.

4. I note, with respect, what was said and found in SZRBA v Minister for Immigration and Border Protection [2014] FCAFC 81 (“SZRBA”) (a case handed down after the hearing of this case). In that case the relevant decision maker used a “cut and paste” approach to the writing of his decision record in that case.

5. The Full Court said at [19] – [20]:

   “[19] Our conclusion is that Mr Karas used a method of cutting and pasting earlier decisions to produce his reasons on the appellant’s application. This is probably not surprising where a large number of similar applicants make similar claims. One can perhaps sympathise with the position of a decision-maker who, confronted with the same argument 100 times, opts to copy what he has said on the earlier occasions.

   [20] There are, of course, risks with adopting such a practice as the facts of this case bear out. Chief amongst these is that the risk of overlooking the actual submissions made is increased. Allied with that risk, or perhaps overlapping it, is the potential to fail to consider each case on its own merits. It is true that this Court has held that generic reasoning of the kind used by Mr Karas does not, by itself, bespeak ostensible bias: Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45; (2012) 200 FCR 223 at 237-239 [43]- [50]. But be that as it may, the practical risks to which we have referred exist.”

6. The current circumstances are distinguishable from what was before the Full Court. There, the Court found that the cutting and pasting approach caused the decision maker to “overlook the substantive submissions made to him about the DIAC note” (SZRBA at [21]). In the current case the Tribunal dealt with the claims and submissions made to it, apart from what is successfully asserted in ground one. I note that the submissions in relation to ground eight do not assist or expand what has been found above in ground one.

7. In her oral submissions before the Court the applicant, in effect, sought to “add” a particular for the contention that the Tribunal did not give genuine consideration to her claims in this regard. The applicant submitted that the Tribunal only gave consideration to the complementary protection criterion in two paragraphs, and that this indicated that it had not given proper consideration to this criterion.

8. As the thrust of this particular complaint was not clear, and given that the hearing had proceeded for nearly four hours, after it had been initially set down for a “usual” morning half day hearing of 2 hours and 45 minutes, as stated above, I granted leave to the applicant and the respondent to make further written submissions.

9. These submissions, while seeking to repeat the matters dealt with above, sought to apply parts of SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 per Robertson J and SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125 per Robertson, Griffith and Perry JJ, and distinguish the current circumstances from those cases.

10. In short, the complaint appears to be that the Tribunal did not sufficiently dispose of its statutory duty because it relied on earlier findings without setting out the analysis relevant to the complementary protection criterion.

11. The applicant’s attempts to distinguish SZSGA and SZSHK from the current case do not assist. The basis of the distinction appears to be that in the Federal Court authorities the respective Tribunal made adverse credibility findings not made here, where the applicant says the Tribunal made a generally positive finding as to her truthfulness.

12. What was not satisfactorily explained is how this assists the applicant in the current case. The thrust of the applicant’s complaint was that the Tribunal did not give proper, or adequate, consideration to the applicant’s claims in relation to complementary protection.

13. The Tribunal’s reasoning in relation to complementary protection is reasonably clear. Even accepting those parts of the applicant’s claim which it found credible (the major part), it found that these circumstances did not rise to satisfy the criterion at s.36(2)(aa) of the Act. In my respectful view, the clear and relevant proposition emerging from the Federal Court authorities is that there is no error in the Tribunal, in setting out its consideration of the complementary protection criterion, referring to previous factual findings made in the decision record. Provided of course, that those findings are relevant to complementary protection, are factual findings about the circumstances presented by the applicant’s case, and were made absent any importation of Refugees Convention concepts. That is, as in the current case, they were findings of fact which subsequently informed the analysis as against the criteria in s.36(2)(a) of the Act. Importantly, they were not findings of fact informed by, or dependent on, the Refugees Convention for their formulation or articulation. Ground eight is not made out.

Conclusion

1. Ground one of the application, as amended, is made out. The applicant should be given the relief she seeks. I will make the orders accordingly.

Postscript

1. In SZQPG v Minister for Immigration & Anor [2011] FMCA 978 (“SZQPG”), Smith FM made reference to the practice of some legal representatives of applicants, in matters of the type currently before the Court, to plead a large number of grounds with various iterations, and “pleading grounds” in submissions (see SZQPG at [27] and also SZRFZ v Minister for Immigration & Anor [2012] FMCA 632 per Smith FM at [76] and SZQII v Minister for Immigration & Anor [2011] FMCA 789 per Smith FM at [29]).

2. Some characteristics of such applications were a lack of structure, a large number of complaints which can be described as the “omnibus” approach to the pleading and prosecution of a case, and finally the inability to understand or accept, or the wilful ignoring of the proscription of seeking merits review in judicial review applications.

3. The current case exhibits these elements. As set out above the applicant had one “good” point. But even there the legal representative chose to plead and/or argue it across three grounds. It is the case that the applicant’s grounds, various aspects of each of the grounds and complaints, for the most part, did not raise an arguable case for the relief sought, some were hopeless and bound to fail and others were mere unnecessary repetition. Others were plainly an attempt to
   re-agitate matters of merit which were unsuccessful before the Tribunal.

4. This case and its prosecution by the applicant would have benefitted from having a more considered deliberation as to the drafting of the grounds, and the choice of grounds to pursue, the arguments before Court, and the manner in which this could have been done consistent with the proper administration of justice.

I certify that the preceding two hundred and five (205) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  7 November 2014