SZUFQ v Minister for Immigration

[2015] FCCA 3406

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUFQ & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3406

Catchwords:
MIGRATION – Application for review of the decision of the Administrative Appeals Tribunal – whether Tribunal did not consider an integer of the applicants’ claims – whether Tribunal decision was illogical or unreasonable – no jurisdictional error – application dismissed.

Legislation:

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

SZSSC v Minister for Immigration and Border Protection [2014] FCA 863
SZMDS v Minister for Immigration and Citizenship [2009] FCA 210
Re Minister for Immigration and  Multicultural Affair; Ex parte Applicant S20/2002 [2003] HCA 30
SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259
Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265
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
Minister for Immigration & Multicultural Affairs v Rajamanikkam [2002] HCA 32; (2002) 210 CLR 222
Minister for Immigration v  SZIAI [2009] HCA 39; (2009) 83 ALJR 1123
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; 144 FCR 1
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
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
Applicant A v Minister for Immigration & Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225
Re Gustavo Carlos Saavedra Morato v the Minister of Immigration, Local Government and Ethnic Affairs [1992] FCA 637; (1992) 111 ALR 417
ApplicantS v Minister for Immigration and Multicultural Affairs [2004] HCA 25; (2004) 217 CLR 387
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

First Applicant: SZUFQ

Second Applicant: SZUFR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1071 of 2014

Judgment of: Judge Nicholls

Hearing date: 12 October 2015

Date of Last Submission: 12 October 2015

Delivered at: Sydney

Delivered on: 21 December 2015

REPRESENTATION

Solicitors for the Applicant: Mr I Chatterjee of HIV/AIDS Legal Centre

Counsel for the Respondents: Mr J Kay Hoyle

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The second respondent is amended to read “Administrative Appeals Tribunal”.

2. The application made on 17 April 2014 and ultimately amended on 17 July 2015 is dismissed.

3. The applicants pay the first respondent’s costs set in the amount of $6646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1071 of 2014

SZUFQ

First Applicant

SZUFR

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS 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 2014 and ultimately amended on 17 July 2015 seeking review of the decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), which affirmed the decision of the Minister’s delegate to refuse protection visas to the applicants.

Background

1. Before the Court was a bundle of relevant documents filed by the Minister (“the Court Book” – “CB”). Also in evidence are the affidavit of Mr Indraveer Chatterjee, solicitor, made on 18 September 2014 and his affidavit made on 16 July 2015, which were read into evidence without objection.

2. The applicant (“the applicant”) and the second applicant are citizens of Fiji (CB 2 and CB 17), who arrived in Australia on 7 December 2012 on visitor visas, accompanying the applicant’s sister’s son who was in a “rugby team…touring Australia” (CB 3 and CB 7). The applicants applied for protection visas on 28 December 2012 (CB 1 to CB 44, including attachments). The second applicant, the applicant’s wife, applied as a member of the applicant’s family unit, and did not make any separate claims to protection (CB 16 to CB 22).

3. The applicant claimed to fear harm in Fiji because of his membership of particular social groups. These included “persons associated, or imputed to be associated with VRF”, “people with HIV” and, cumulatively, people “associated with or imputed to be associated with the VRF and with HIV” ([24] at CB 181). He claimed he had been detained in 2006, due to his opposition to the military government (CB 78.1). Soldiers from the Fiji military came and “raided” his farm looking for him in 2011 (CB 8). He claimed that as this time he was in the “Viti Revolutionary Forces” (“VRF”). He was arrested and detained for questioning before being released. He claimed that he was assaulted by the soldiers and was monitored after this until he was “cleared” to come to Australia. Further, he claimed, that prior to flying out of the Nadi Airport he was again interrogated by the military (CB 8).

4. The applicant claimed that he feared torture and arrest by the military on his return to Fiji, as his farm had been “raided” again in his absence in December 2012, while other members of the VRF where in hiding there (CB 8). He received information about this while he was in Australia and, therefore, he feared to return and sought protection in Australia (CB 79).

5. The applicant submitted further documents in support of his application, including letters of support and documents purporting to verify his claims, on 6 March 2013 (CB 53 to CB 55), at the interview before the delegate on 26 March 2013 (CB 56 to CB 61), and after the interview before the delegate on 9 April 2013 (CB 62 to CB 68).

6. The delegate refused the grant of the protection visas on 11 July 2013 (CB 69 to CB 88).

7. The applicants applied to the Tribunal for review of the delegate’s decision on 14 August 2013 (CB 89 to CB 94). The applicants were invited to appear before the Tribunal for a hearing on 9 January 2014 (CB 95 to CB 96). By facsimile sent on 5 December 2013, a solicitor indicated to the Tribunal that he or she would attend the hearing with the applicant. The solicitor provided written submissions to the Tribunal on 8 January 2014 (CB 100 to CB 143), a Statutory Declaration made by the applicant that further outlined his claims to protection (CB 144 to CB 149), and evidence of the applicant’s human immunodeficiency virus (“HIV”) diagnostic status from the Western Sydney Sexual Health Centre (CB 150 to CB 151).

8. The submissions from the representative to the Tribunal made a new claim to fear harm due to the applicant’s diagnosis of HIV while in Australia in August 2013. In effect, that the applicant feared “stigma” and “discrimination” on return to Fiji due to his diagnosis. Further, that he would be denied “critical support”, in particular in the form of medical support, such as free antiretroviral treatment, on return. The submissions also emphasised that his diagnosis of Post‑Traumatic Stress Disorder (“PTSD”), as a result of the treatment by the soldiers, would impact on his ability to work if he were to return

9. After the hearing, the applicants’ representative submitted further documents in support of the applicant’s medical history (CB 155 to CB 160) and a Statutory Declaration from the second applicant confirming her fears for the applicant’s safety on return to Fiji, as well as claiming to fear harm for her own safety on return to Fiji (CB 161 to CB 162).

10. At the hearing before the Tribunal, the applicant had put a further claim forward that he feared harm due to his Methodist religion. The Tribunal accepted that he was a member of the Methodist church in Fiji, and that he adhered “strongly” to the religion ([32] at CB 184). However, with reference to country information, the Tribunal found that while there had been previous restrictions on the Methodist church, these restrictions had “eased” and that the applicant would not face any “significant limitation on his right to religious freedom or that it would amount harm of any kind” in the applicant’s circumstances ([34] at CB 184).

11. In relation to the applicant’s HIV status, the Tribunal accepted that a particular social group existed in Fiji of “people with HIV” ([35] at CB 184). The Tribunal considered the applicant’s representative’s submissions, and the various country information contained therein. It found that, in totality, it was not satisfied that the applicant would be “denied access to free antiretroviral treatment” ([38] at CB 186). Further, that as “an educated…businessman” who lived in Suva, the applicant would not face the issues of misinformation or ignorance that were raised before it on behalf of the applicant ([38] at CB 186).

12. The Tribunal found, in relation to the claimed discrimination that the applicants would face that, while a possibility, it would not rise to a level of serious harm ([39] at CB 186 to CB 187). The Tribunal also considered the applicant’s claims against the complementary protection criterion (s.36(2)(aa) of the Act), and found that the applicants would not face significant harm on return. The Tribunal affirmed the delegate’s decision to refuse protection visas to the applicants.

Application Before the Court

1. The application, as ultimately amended, contains the following grounds:

   “1. The Second Respondent fell into jurisdictional error by employing a reasoning process that was illogical or irrational, in making findings of fact which were not open to any rational or logical decision maker.

   Particulars - Access to treatment for people with HIV

   a. The Applicant provided the Tribunal with credible information that a very small proportion of people with HIV in Fiji were receiving treatment and further that there had been significant reductions in funding for treatments.

   b. The Tribunal made similar findings in relation to the situation in Fiji.

   c. The Tribunal nonetheless found that the applicant would be able to access free treatment and thereby found that the applicant was unlikely to suffer harm within meaning of the s91R of the Migration Act 1958 ('the Act').

   Particulars -Stigma and Discrimination  against People with HIV

   d. The Tribunal accepted that there was information showing there had been no enforcement by the Fijian government of its 2011 HIV/AIDS decree preventing discrimination based on HIV status;

   e. The Tribunal nonetheless found that the 2011 decree was a ‘strong anti-discriminatory measure’ without reference to any supporting material and thereby found that the applicant was unlikely to suffer harm within meaning of the s91R of the Act.

   2. Further or in the alternate, the Second Respondent fell into jurisdictional error by making findings that no reasonable decision maker could have made, and/ or making findings of for which there was no evidence, in finding that the Applicant would have access to free treatment on return to Fiji.

   Particulars

   a. The Applicant relies upon the particulars at l .a.-1.c.

   3. The Second Respondent failed to conduct a review of the decision by failing to consider integers of the Applicant's claims, those integers being:

   a. That the Second Applicant was a member of a particular social class being a person imputed to be HIV positive because of being married to a person with HIV; and

   b. That the Second Applicant had a well-founded fear for her safety because of her membership of the social group of persons married to an HIV positive person and/or imputed membership of the social group of HIV positive women.

   c. That the First and/ or Second Applicant was a member of a particular social group being a person imputed to be a sex worker and/or a person who frequented sex workers.

   d. That the First and/ or Second Applicant was a member of a particular social group being a person imputed to be an injecting  drug user.

   e. That the First Applicant was a member of the particular social group being a person imputed to engage in homosexual behaviour.

   f. That the First Applicant suffered from post-traumatic stress disorder, being a matter relevant to his ability to subsist.

   g. That the grounds c to f must be in considered in totality with the applicants' other claims for protection.”

Consideration

1. Ground one of the application asserts that the Tribunal fell into jurisdictional error because its reasoning process was illogical or irrational in the making of findings of fact not open on the material before it. Ground two asserts that the relevant parts of the Tribunal’s decision were unreasonable. For the reasons set out below, it is appropriate to consider the grounds together.

2. The impugned reasoning process and findings of fact said to arise from this were concerned with the question of access to treatment in Fiji for people with HIV, and the “stigma” and discrimination in that country against people with HIV.

3. The applicant submitted that, relevantly, two claims to fear serious harm (“persecution”) had been raised before the Tribunal. Both arose out of the applicant’s infection with HIV.

4. The two claims were as follows. First, the applicant feared persecution by the government in Fiji because of the applicant’s inability to access relevant medication for his condition. The second claim was said to be that of discrimination as social stigma from non-state actors which amounted to persecution, and that the Fijian state was unable to provide protection.

5. The applicants relied on a number of authorities which they said provided the legal principles applicable to grounds one and two (SZSSC  v Minister for Immigration and Border Protection [2014] FCA 863, SZMDS v Minister for Immigration and Citizenship [2009] FCA 210 (“SZMDS”), Re Minister for Immigration and  Multicultural Affair; Ex parte Applicant S20/2002 [2003] HCA 30, SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58, Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 and Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12).

6. There was no dispute between the parties as to the basic legal principles relevant to the claim of illogicality in ground one and unreasonableness in ground two. The dispute centred on what was said to be the Tribunal’s reasoning and the findings it made about the two issues set out above (at [18]).

7. The applicants submitted that a large amount of evidence concerning the HIV issues was before the Tribunal. A significant amount of that evidence was presented by the applicants. For the greater part the Tribunal relied on this evidence.

8. The applicants sought to make out grounds one and two with reference to a number of factual findings made by the Tribunal.

9. First, [38] (at CB 186):

   “Taking this information together I am not satisfied that the Applicant would be denied access to free antiretroviral treatment if he were to return to Fiji.  I accept that the therapy may not be available in some parts of the country, that misinformation, ignorance and fear of stigmatisation may dissuade some people from making use of it and that there is some evidence of practitioners of herbal medicine actively working to deter HIV sufferers from seeking treatment.  However, I am not satisfied that these factors would have any particular relevance for the situation of the Applicant, an educated forty-seven year-old businessman who lives in Suva.  While funding the therapy will no doubt place increasing burdens on Fiji’s budget, the information before the Tribunal indicates the government remains committed to providing it free of charge to all HIV/AIDS sufferers in the country.”

   [Emphasis added.]

10. The applicants referred to information before the Tribunal to the effect that only 10% of those diagnosed with HIV in Fiji were accessing relevant medication (see CB 133 and CB 150). They also referred to information, that they said was the only additional information “found” by the Tribunal, that said that 43% of people in Fiji who had HIV were receiving treatment for HIV infection (see the third dot point at [37] at CB 186).

11. The applicants argued before the Court that that latter statistic was not “meaningful”. The argument was that given it was expressed as a percentage, there was no indication of the actual numbers involved. The applicants emphasised that this statistic needed to be compared with the statistic contained in the information they gave the Tribunal which was from government sources to the effect that 10% of people diagnosed with HIV were receiving treatment, which the applicants had provided “sample sizes” in relation to the statistic, to the Tribunal drawn from the “Global Aids Progress Report” included in the representative’s submissions (see CB 135).

12. The applicants argued that, in this light, the reasoning leading to the impugned findings by the Tribunal revealed illogicality and unreasonableness. This was explained as follows. The Tribunal gave two bases in support of its finding that the applicant would be able to access HIV treatment. The first was certain individual characteristics by the applicant. The second was that the Fijian government remained committed to providing this treatment free of charge.

13. In short, the Tribunal referred to information that only a small number of persons are able to access the treatment, yet the Tribunal found that the applicant would be able to access it.

14. This finding was illogical because there was no evidentiary basis for it in relation to the applicant. It was also illogical because there was said to be no logical connection between the applicant’s education or business status, and the ability to access treatment.

15. The second element of this finding by the Tribunal impugned by the applicant is that it was not open to the Tribunal to “conflate” a commitment by the Fiji government to provide medication with the actual accessibility to medication. This “conflation”, which was said by the applicants to be a “finding”, was not open to it.

16. In support of this proposition, the applicants pointed to information they had put before the Tribunal, which was described before the Court as “persuasive evidence”, regarding the state of HIV funding in Fiji (see CB 133 to CB 134). In essence, the applicant saw such funding, both domestic and international, as being limited.

17. The applicant also pointed to the Tribunal’s own research which found that only 43% of persons in Fiji with advanced HIV were receiving treatment ([37] at CB 186).

18. The second factual finding made by the Tribunal impugned by the applicants is at [39] (at CB 186 to CB 187) of the Tribunal’s decision record:

    “I accept there is some evidence of discrimination and stigmatisation of HIV/AIDS sufferers in Fiji, including among health care workers and the general public.  However, there is nothing in the information before the Tribunal to indicate that these attitudes rise to the level of serious harm as suggested by the Applicant.  Having considered the information I am not satisfied that, even if his HIV status were to become public knowledge, he would be ostracised by his community, his relatives or his immediate family. Nor am I satisfied, against the background of strong anti-discriminatory measure introduced by the regime in 2011, that he would be subjected to discrimination in more formal settings such as housing, employment or access to government services.  In this context I find highly implausible the suggestion that he was discovered to be HIV positive when he was tested in Suva in August 2010 but that these results were not divulged to him because of the stigma attached to the disease.  I accept that his state of health might prevent him returning to work in Fiji but I am not satisfied he would be denied the support of his family members or that he would be unable to subsist.  I note that he still has the lease of his farm land, until 2039 and that his wife while fully aware of his condition, has continued to provide him with full support.  I find highly speculative the claim that he would be unable to sell his crops or fish once it was known that he had HIV (assuming that he did in fact return to his farm work or his shop in the market) and I consider there would be alternative opportunities available to him which would allow him to market this produce.”

    [Emphasis added.]

1. The applicants took issue with the Tribunal’s finding of “no evidence”, as set out above. The applicants submitted that there was such information before the Tribunal. They referred to information concerning a study in 2008 of 13 women diagnosed with HIV (at CB 136) and of 12 children born with HIV (at CB 136), contained within their representative’s submissions to the Tribunal.

2. The applicants pointed to submissions made to the Tribunal by their representative (CB 136 to CB 137) that interviews conducted during the course of these studies revealed multiple challenges and structural difficulties. These included discrimination against, and stigmatisation of, those affected by HIV. Those matters were said to arise within the health care system itself in Fiji.

3. The submission was that in these circumstances it was illogical and unreasonable of the Tribunal to find that this did not lead to serious harm for the applicant.

4. The third finding made by the Tribunal, which is impugned by the applicants, begins at [37] (at CB 185)

   “I have considered the information submitted by the advisor regarding the treatment of HIV/AIDS in Fiji.

   - I note that he criticises the 2011 HIV/AIDS decree preventing discrimination based on HIV status and asserts that the government is unwilling or unable to enforce these laws.  I accept that there is information indicating that, as at May 2013, there had been no enforcement action by courts of the provisions of the decree, and that some difficulties have been identified in implementation, including the requirement to proceed by way of criminal prosecution. Nevertheless, the decree was not a hasty or superficial measure, having been developed over a period of five years with extensive consultation among Fiji government agencies and technical support from UN bodies including UNDP and UNAIDS. It has a strong human rights focus and specifically requires that its provisions are to be interpreted so as to apply the UN International Guidelines on HIV/AIDS and Human Rights.  It provides a wide range of legal protections against discrimination and stigmatization, and defines rights to confidentiality and informed consent.  Unlawful acts are punishable with a fine or imprisonment for up to two years, and health professionals may also be subject to disciplinary measures.  There have been regular statements by Fijian leaders, including President Epeli Nailatikau, supporting its aims. It is reinforced by anti-discriminatory provisions in other pieces of legislation.  It is perhaps too early to determine what role the decree will play in ensuring that the human rights of HIV/AIDS sufferers in Fiji will be respected. However, and with respect, the advisor’s characterisation of it as ‘a blatant attempt to distract from the Fiji Government’s despicable recent human rights record’, does not appear to give it adequate recognition as an expression of political will and a practical measure to reduce discrimination.

   - On a related issue the advisor quotes from a study suggesting that reforms to the criminal law (under the Crimes Decree of February 2010) designed to remove discrimination between heterosexual and homosexual paid sex work have, in fact, had detrimental effects on HIV prevention by criminalising male-to-male prostitution.  I accept that this may have been an unintended outcome of the measure.  However, there is nothing in the circumstances of the Applicant to suggest that he has ever been involved in homosexual sexual acts (which are, in fact, decriminalised under the decree) or male-to-male paid sex work and I am not satisfied that this information has any particular relevance for him…”

   [Emphasis added] [Footnotes omitted.]

5. The applicants’ argument was that the decree referred to by the Tribunal was relevant to two matters. One, the likelihood of the applicants facing persecution from non-state “actors”. That is, stigma, and discrimination from, health care workers. Two, the capacity of the state to provide protection against discrimination.

6. The complaint about the Tribunal’s reasoning is that at [37] (at CB 185 to CB 186) it found that it was “too early to determine what role the decree will play”, yet at [39] (at CB 186 to CB 187 – see [32] above) it found that the decree was a “strong anti-discrimination measure”. The reference to the word “strong” was seen by the applicants as being a reference to the effectiveness of the decree. That is, that it was not just of “symbolic” value but actual value. This was said to be illogical or unreasonable.

7. Before the Court, the Minister immediately exposed the central flaw in the applicants’ grounds. It is trite to say that this Court cannot engage in merits review of the Tribunal’s decision. It cannot substitute its own findings of fact for those of the decision maker. This is so, in circumstances where it was reasonably open to the Tribunal to make the findings that it did, on the material before it.

8. I agree with the Minister that the applicants’ case before the Court sought to challenge findings made by the Tribunal by the reference to the legal principles relating to illogicality and unreasonableness, in circumstances where the Tribunal’s findings were reasonably open to it. For the most part, the arguments before the Court were

   
   

   well-presented, but nonetheless, were an impermissible attempt to “justify” or re-agitate submissions put by the applicants’ representative to the Tribunal.

9. Before the Court, the applicants referred to relevant authorities. What they did not address was what the Minister respectfully understood to be the “balance” in the authorities between the proper identification of jurisdictional error and the proper “reluctance”, that is the inability of the courts, to engage in merits review. This “balance” was emphasised by French CJ in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (“Li”) with the reference to the “decisional freedom” of the Tribunal (Li at [28]).

10. The applicants’ focus on parts of the Tribunal’s decision, that is, particular findings, also appear to deny the proposition that Tribunal decisions are to be read fairly and “...[t]he reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error...” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”) at [30] per Brennan CJ, Toohey, McHugh and Gummow JJ). This includes that Tribunal decisions are to be read holistically.

11. As I stated above, the applicants’ submissions before the Court sought to explain, if not justify, submissions made by their representative to the Tribunal. That is clear, if for no other reasons, because the impugned findings by the Tribunal are all located in that part of the decision record where the Tribunal addressed and considered the information submitted to it by the applicants’ representative (see at [37] (at CB 185) to [39] (at CB 187)).

12. The applicants’ reliance on this information before the Tribunal sought to argue a number of elements which were said to establish that they would suffer serious harm on return to Fiji.

13. These included that measures put in place by the Fijian government, including the decree referred to above (at [36] – [37]), were not effective. Further, that the legal situation in Fiji was such that there were impediments to the prevention and treatment of HIV.

14. Further, that health care in Fiji is expensive and needs proper resources. In particular, in the context of a decline in foreign aid to Fiji, the government was unwilling to provide funds for HIV treatment, or to give priority to it, over other health care needs. In this context, the applicant would be unable to access relevant care and medication. This was to be seen in light of the low proportion of people who were receiving treatment.

15. This was also to be understood in a context where there was discrimination against HIV sufferers from health care workers, and Fijian society in general.

16. Against all this background, the applicant claimed he would not have support from his family and was unable to work to earn funds. In all, he would be unable to access medication necessary to save his life.

17. The Tribunal dealt with this information, and the submissions which arose from it, as follows. It accepted that there was information that there had been no enforcement of the government decree on HIV. However, it rejected the submission that the decree was no more than a “blatant” attempt to direct attention away from the government’s poor human rights record. The Tribunal found, in the circumstances, including that the decree had been developed over a period of five years, that it should be recognised as an expression of the government’s political will, and in that light, a practical measure to reduce discrimination.

18. It is, of course, possible that a different Tribunal member may have reasoned, and found, differently. However, the test for illogicality and unreasonableness are not made out simply because the applicants urged a different finding. The Tribunal’s finding here was reasonably open to it.

19. The applicants submitted before the Court, illogicality and unreasonableness between the Tribunal’s “finding”, that it was too early to determine the exact role of the decree, and the Tribunal’s subsequent reliance on the decree to find that the applicant would not face serious harm arising from discrimination.

20. It is not clear that the Tribunal’s reference at the first dot point in [37] (at CB 185) is a finding that the decree had no effect on the matter of discrimination. When fairly read, the Tribunal’s observation here was part of its evaluation of the submissions put to it that the decree was not only meaningless but had an ulterior purpose. In rejecting that proposition, the Tribunal noted that the decree was recent in its enactment and, therefore, there was no experience of its operation to rely on. However, in the Tribunal’s view, the decree made a powerful statement of the government’s intention. In this light, it needed to be recognised as a force against discrimination. This, again, was a finding open to the Tribunal.

21. When the Tribunal came to make the impugned finding at [39] (at CB 186 to CB 187), the Tribunal’s finding, read fairly, is a reliance on the observation made at [37] (at CB 185 to CB 186) of the powerful statement made by the Fijian Government, and that such a statement would preclude discrimination “in more formal settings such as housing, employment or access to government services”.

22. Plainly, the Tribunal saw a government decree, setting a certain standard, as having applicability to those matters within the government’s purview and control. No illogicality or unreasonableness is revealed here.

23. The Tribunal also considered the applicants’ representative’s submissions, derived from information presented, to the effect that reforms of the criminal law in Fiji made male-to-male prostitution a criminal act. The Tribunal found, however, that there was nothing in the applicants’ circumstances to suggest he had ever been involved in male homosexual acts (which were discriminated against under the reforms) or male to male prostitution. Again, this was reasonably open to the Tribunal.

24. The Tribunal also considered the representative’s submissions concerning shortages in health care in Fiji and the impact this had on HIV treatment. Before the Court, the applicants provided information (as referenced to above) concerning health care workers and percentages of people receiving treatment.

25. The Tribunal considered (at the 3rd dot point at [37] at CB 186) other information before it as to the percentages of persons receiving HIV treatment in Fiji. This, on its own, was not determinative of the Tribunal’s ultimate conclusion, which it further explained at [38] (at CB 186) to [40] (at CB 187). At [37] (at CB 185 to CB 186), the Tribunal was setting out its evaluation of the information submitted by the applicants’ representatives. Such explanation involving other relevant information obtained by the Tribunal is illustrative of the proper exercise of its jurisdiction.

26. The applicants’ submissions before the Court were based, at least implicitly, on the proposition that the information they submitted was of such character that the Tribunal should have accepted that they faced persecution on return.

27. Again, this is another example of the merits review sought by the applicants now. The Tribunal does not have to uncritically accept the applicants’ evidence (Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265). However, in the current case, it did not reject this evidence, it simply weighed it in light of other information before it. The evaluation of evidence, and information, and weight to be assigned to it, is for the Tribunal (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). Illogicality or unreasonableness is not made out simply because the applicants believed that the Tribunal’s decision should have been different.

28. The applicants claimed that the applicant would suffer harm on return to Fiji because of his HIV status. The Tribunal summarised this claim at [35] (at CB 184) to [36] (at CB 185). At [37] (at CB 185 to CB 186) as referred to above, the Tribunal considered submissions made on the applicants’ behalf and evaluated the information provided.

29. At [38] (at CB 186) and [39] (at CB 186 to CB 187) the Tribunal set out its evaluation of the claims in light of its view, and understanding of, information that it had earlier set out. That is made clear if for no other reason than with the plain words of the opening sentence of [38] (at CB 186), “taking this information together…”. That is a reference to all the country information, and the applicant’s circumstances, as set out earlier in its decision.

30. The Tribunal accepted the limitations as to the availability and adequacy of health care for HIV sufferers in Fiji, as the applicants had submitted to it. This included the efforts of some to dissuade HIV sufferers from seeking appropriate treatment. However, the critical part of the Tribunal’s reasoning was that it was not satisfied that the elements (“these factors”), which it identified as relevantly arising from the material before it, and which were the claimed difficulties in accessing health care, would lead to serious harm for a person with the applicant’s particular characteristics and profile.

31. That is, the applicant would be, on return, a forty seven year old businessman living in Suva. As such, the factors identified by the Tribunal, as arising from what was before it, would not be relevant to the applicant, in terms of assessing the likelihood of serious harm.

32. The process, or methodology, employed by the Tribunal was orthodox. That is, it considered the claims made, and the submissions in support, the information provided by the applicants, and information from other sources. It considered the relevance of this information, and the weight to be assigned to it, in the relevant context of the applicant’s personal circumstances.

33. A different decision maker may have made different findings as part of this process, as the applicants now urge that the Tribunal should have done. However, the relevant test is not one of the preferred decision, but whether the Tribunal’s findings were reasonably open to it and whether no rational decision maker could have come to the conclusion that the Tribunal came to (SZMDS).

34. At [39] (at CB 186 to CB 187) the Tribunal addressed the second aspect of the applicant’s HIV related claim (see above at [18]). That is, that he would suffer societal stigma and discrimination. The Tribunal again had regard to information before it, and accepted there was evidence of discrimination including from health care workers.

35. However, the question posed for the Tribunal by the relevant statutory provision was whether that discrimination would rise to serious or significant harm as those terms are legally understood and defined.

36. The Tribunal found they would not. It gave reasons probative of the material before it and comprehensive of the applicant’s claims.

37. One particular submission from the applicant was that the Tribunal itself said that there was no information before it to indicate that the discrimination faced by persons such as the applicant would rise to the level of serious harm. The argument was that they had provided such information. The Tribunal’s finding therefore was illogical and unreasonable.

38. I pause to note that even if the Tribunal had made some factual error in this regard, the applicants would still need to satisfy the Court that it was of such significance that it affected the decision as a whole. Noting, of course, that factual errors do not, of themselves, equate to jurisdictional error (Minister for Immigration & Multicultural Affairs v Rajamanikkam [2002] HCA 32; (2002) 210 CLR 222).

39. In any event, the Tribunal made no such finding. At [39] (at CB 186 to CB 187), the Tribunal’s language was not that there was “no information”, but rather that “there is nothing in the information” to indicate that the discriminatory attitudes gave rise to serious harm. The Tribunal was not seeking to compare the information given by the applicants to an unsuccessful search for information to support its finding. Rather the Tribunal was evaluating the applicants’ own information.

40. Before the Court the applicants argued that the Tribunal’s findings here were contrary to the evidence before it. The applicants did not complain that the Tribunal did not address the claims made. Rather, as was explained before the Court, the Tribunal’s “qualitative evaluation is contrary to the material and contrary to the evidence before the Tribunal”.

41. In my view, that submission reveals the weakness in the applicants’ case. The applicants conceded by that submission that the Tribunal engaged in a qualitative evaluation of the material, but they simply did not accept, or agree, with its conclusion. This was the highest at which the submission was made. It does not reveal jurisdictional error in the circumstances. In all, ground one and two are not made out.

42. Ground three initially concerned the second applicant. It asserts that the Tribunal fell into jurisdictional error because it failed to consider a claim of harm made by, or on behalf of, the second applicant.

43. Again, there was no dispute between the parties to the relevant authorities and applicable legal principles (Minister for Immigration v  SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [25], NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; 144 FCR 1 (“NABE (No.2)”), WAEE  v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 (“WAEE”) and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 (“Dranichnikov”)).

44. Before the Court, the applicants directed attention to [46] of the Tribunal’s decision record (CB 187 to CB 188):

    “Second-named Applicant

    As noted above, the second-named Applicant did not present any specific protection claims.  I note, however, that the advisor suggests she and other members of the Applicant's family would be at risk of harm as a result of discrimination and stigmatisation directed at him by society.  However, as I am not satisfied that these social attitudes would rise to the level either of serious harm, in a Convention sense, or significant harm in the sense of s.36(2A) in respect of him I am not satisfied that she would, in fact, face a real chance, or risk, of either serious harm or significant harm for this reason.”

1. The applicants submitted that the Tribunal understood the second applicant’s claim to be one of, what they said, was “indirect” harm. That is, her claim to harm arose from the applicant’s claim.

2. The complaint, however, is that the second applicant made claims in her own right. That is, that she was a member of a particular social group “women with HIV”.

3. Before the Court, the applicants explained that the second applicant had advanced claims of “harm to herself” and the Tribunal failed to consider her claims “as an individual”. This was a failure to consider a claim made by the applicants. That is, it considered the claims to fear harm by reason of discrimination and stigmatisation of the applicant, but failed to separately consider this claim in relation to the second applicant.

4. The applicants referred to the following material in support of this ground (applicants’ submissions at [47]):

   “Clear evidence and claims were present before the Tribunal regarding the Second Applicant’s fears in her own right as a result of discrimination against their children and her, arising either from her association with her husband or imputation with HIV. Such evidence and/ or claims were made by way of:

   a. Submissions filed with the Tribunal prior to the hearing:

   i. [The First Applicant’s] decline will necessarily mean that his family’s almost certain rejection of him will put him in serious harm as well as result in significant harm to his wife and children. [CB 139].

   ii. In addition, association with a person with HIV will carry in itself penalty – to his immediate family, and any wider family or community members willing to help him [CB 143].

   iii. The applicant further fears harm to his family, being his children and wife, as a result of his HIV-positive status [CB 143].

   iv. The applicant further fears harm to his family, being his children and wife, as a result of same [CB 143].

   b. Evidence by way of Statutory Declaration of the First Applicant provided to the Tribunal prior to hearing:

   i. I worry that my wife and child would be subject to stigma and discrimination if people were discover my HIV status in Fiji [CB 149 at 64].

   ii. I fear that if my extended family and my local community in Fiji would discover my HIV status, they would discriminate against me and ostracize my family and I [CB 149 at 65].

   c. Evidence at oral hearing by the First Applicant:

   i. They're [people with HIV] regarded as not part of the community.  They're pushed aside from every aspect and it will affect me badly and my family and further, I will get better medical attention or assistance here in Australia than in Fiji [Transcript at 20 – 25, pg 27].

   d. Evidence at oral hearing by the Second Applicant:

   i. That is the fear that we fear for most, for our safety and for his health.  Further, we will become a target, not only for us but for the whole family due to this diagnosis and I'm very much concerned about the  (indistinct) by Fiji (indistinct)

   We will definitely be facing hardships regarding this because we definitely will not be accepted by the community and I will - I mean, people surrounding us, our neighbours and even our relatives, this will affect our business, consequently affecting our income and this is the main reason why we are in fear of returning back to Fiji, and due to his health, medical services in Fiji, it's not quite up to standard. This will badly affect my husband’s health in regard to medication and seeking medical assistance. Life will never be the same for us  [Transcript at 5 – 15, pg 31].

   e. Evidence by way of Statutory Declaration of the Second Applicant provided to the Tribunal immediately following hearing:

   i. I do also have concerns for my safety, and that of our children, both because of [the First Applicant’s] involvement with the Viti Revolutionary Force, but also because of his diagnosis with HIV [CB 161 at 3].”

5. On any fair reading of the material before the Court, the second applicant’s claims to fear harm, as articulated by the applicant, their representative, and herself, was that she, and her family, would face harm because of the applicant’s HIV status, and the stigma and discrimination that would attract not only for him, but his whole family.

6. On a fair reading of what was put before the Tribunal, it is clear that the second applicant’s claims were consequent to, and arose from the applicant’s status, in circumstances where as his wife, the harm feared would also be directed to her, in terms of stigma and discrimination. The Tribunal reasoned that if his claims of stigma and discrimination did not rise to the level of serious or significant harm then, consequently, it would not do so for the second applicant.

7. The Tribunal did not consider the second applicant’s claims in the manner in which those claims were put. The second applicant herself made the basis of her “individual” claims clear to the Tribunal (T31, ll.4-16):

   “[Second applicant]: … That is the fear that we fear for most, for our safety and for his health. Further, we will become a target, not only for us but for the whole family due to this diagnosis and I'm very much concerned about the (indistinct) by Fiji (indistinct) We will definitely be facing hardships regarding this because we definitely will not be accepted by the community and I will - I mean, people surrounding us, our neighbours and even our relatives, this will affect our business, consequently affecting our income and this is the main reason why we are in fear of returning back to Fiji, and due to his health, medical services in Fiji, it's not quite up to standard. This will badly affect my husband's health in regard to medication and seeking medical assistance. Life will never be the same for us…”

8. Before the Court, the applicants also made reference to what was said to be the issue of the second applicant’s gender. This appeared to be an explanation of the particulars to the ground of a group said to be “being married to a person with HIV or membership of “HIV positive women”.

9. It is clear that the second applicant did not claim to be infected with HIV. Nor is there any indication in her Statutory Declaration that she claimed that she would be imputed with the characteristics of such a group. Thus, the Tribunal was not in error in not considering whether she was, or would be imputed to be, a member of a particular social group comprising of HIV positive women. Nor can it be said, on the material before the Court, that a claim was expressly made or clearly arose that she was a member of a particular social group of women married to men with HIV. Her claims were presented as arising as a consequence of the applicant’s status. That is, as an individual.

10. It may be that references by the applicants before the Court to “imputed” membership of a such a group was a way of explaining that she was not “directly” a member of such a group, but seeking to emphasise that there was something more about the applicants’ circumstances together, and her claims, than simply being reliant on her husband’s claims. One other attempt at this before the Court was to submit that the Tribunal did not consider her claim to fear harm “individually” and as a woman.

11. The Tribunal did consider the second applicant’s claims, separately, to those of the applicant. This is clear at [46] (at CB 188). Its reasoning was that her claim to fear harm, as a woman married to an HIV sufferer, who claimed to fear discrimination and stigma on return to Fiji, was a claim that she would face the same fear herself.

12. The applicant’s representative before the Tribunal stated (T5, ll.48 to T6, ll.3-5):

    “[The Tribunal]: …If there is any evidence, I can consider her claims as an applicant in her own right. It would be included in the same case.

    [Representative]: I would (indistinct) rise or fall based on [the applicant’s] claim, in the sense that if the fears that [the applicant] has are not accepted by the Tribunal (indistinct)”

    [In context, the first two words of the representative’s statement appear to be “it would”].

13. Given that the applicant’s claims did not rise to the requisite level, the Tribunal found this also to be the case applicable to the second applicant. The Tribunal dealt with the claim as expressly made and clearly arising. This part of ground three is not made out.

14. The second part of ground three (see particulars (c) to (e)) related to the applicant. The complaint was that the Tribunal did not consider whether the applicant would be perceived to be a member of a particular social groups (sex workers, a person who frequented sex workers, an injection drug user or engaging in homosexual conduct). In essence, the complaint was that the Tribunal failed to consider the likelihood of harm said to arise from the applicant being imputed to be a member of such groups, as a result of his HIV status.

15. A number of additional points need to be made. First, some care must be taken in cases of this type to distinguish between, on the one hand, claims expressly made or those clearly arising from the circumstances presented, including the arguments in support of these claims, and, on the other hand, arguments put before a Court that seek to expand upon claims to fear harm put before the Tribunal, or even to create “new” claims. The Tribunal is required to deal with the claims arising from the circumstances put before it. It does not have to address claims that were not made.

16. Second, the explanation of the applicants’ case before the Court sought to conflate the distinction between a claim expressly made or clearly arising and said to be not considered by the Tribunal (Dranichnikov and NABE (No.2)), and an integer of that claim which is not considered, in circumstances where the remainder of the claim is considered (Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244).

17. Third, it was not entirely clear from the applicants’ submissions whether the complaint was that the Tribunal failed to consider a claim that the applicant would be perceived to be a member of the particular social groups which the applicant now puts forward or have imputed to him membership of these groups, or whether the Tribunal failed to consider a claim that he was a member of these particular social groups to which certain characteristics had been imputed.

18. Fourth, it may be on balance, that the complaint is that the applicant was not a sex worker or a person who frequented sex workers (particular c to ground three), or was not an injecting drug user (particular d to ground three), or was not a person who engaged in homosexual behaviour (particular e to ground three), but that he would be perceived to be any one, or all of these, and that the membership of the particular social group comprised of persons who would be so perceived.

19. Fifth, in that light I note that it is not necessary for a group to be found to actually have the characteristics that are perceived of them to be a particular social group (see for example Applicant A v Minister for Immigration & Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 (“Applicant A”) at 265 per McHugh J).

20. The applicants’ ground, as set out above, pleads a failure to consider integers of the applicants’ claims. It posits, in particulars, what are said to be three integers of those claims which could be expressed as characteristics of particular social groups. However, what the applicants have failed to satisfactorily explain before the Court is where in the material before the Tribunal (including what was put to the delegate) such integers of the claims were made in a form recognised, as per the authorities, as being a part of the applicants’ claims to fear harm.

21. As set out above, the applicants’ representatives made extensive written submissions to the Tribunal on the applicants’ behalf (CB 100 to CB 140). In these submissions, the representatives made specific mention that one of the bases on which the applicant seeks protection is his membership of these particular social groups, set out under the heading of “Member of a Particular Social Group” (CB 124).

22. The three groups were identified as (CB 124):

    “– Person associated, or imputed to be associated with the VRF [Viti Revolutionary Force].

    – People with HIV (PHIV); and

    – Person associated, or imputed to be associated with the VRF and with HIV…”

    It is clear that none of those groups can be said to be those put forward  by the applicants in the particulars to ground three.

23. In a subsequent letter to the Tribunal, the applicants’ representative raised what were described as “new claims” (CB 142). These derive from the diagnosis of HIV. Part of the submissions are (at CB 143.6):

    “Finally, it is noted that a number of behaviours are often closely connected with a diagnosis of HIV and, particularly in circumstances where there is a level of misinformation and stigma around HIV. Thus, for instance, engaging in sex work (or frequenting sex workers), same sex relations or injecting drug use are behaviour commonly attributed to people with HIV. These imputed behaviours carry with them significant penalty and stigma as well. Thus, it is submitted that it is likely that the applicant and/ or his family are likely to face stigma and discrimination on the basis of imputed characteristics, being drug use, homosexuality and/ or ‘immoral’ behaviours such as frequenting sex workers.”

    While these submissions introduce the idea of imputation, what is extracted, and when read fairly with the earlier submissions, is related to what is said to be imputed to the applicant, as an individual, as a person with HIV.

24. What immediately follows that extracted above is the following (at CB 143):

    “The applicant therefore invokes Australia’s protection obligations on the basis of membership of a particular social group, being an imputed drug user, homosexual and or a person who frequents sex workers, and fears harm from local community and family, being harm that the State is unable to protect the applicant from. The applicant further fears harm to his family, being his children and wife, as a result of the same.”

25. It would appear that the claim raises one particular social group with a number of characteristics. In the circumstances, the representative’s submissions can be understood as seeking to assert the existence of a particular social group, by reference to characteristics relevant to the applicant, and then to say that a particular social group exists with those characteristics.

26. What immediately precedes in the submissions, extracted at [100] above, and further informs the understanding of the representative’s submissions, is the following (CB 143):

    “The applicant therefore invokes Australia’s protection obligations on the basis of membership of a particular social group, being people with HIV, and fears harm from local community and family, being harm that the state is unable to protect the applicant from. The applicant further fears harm to his family, being his children and wife, as a result of his HIV-positive status.”

    Again, this is not what is asserted in the particulars to the ground.

27. While the extract at [100] above plainly makes reference to imputed drug use, homosexual behaviour or a frequenter of sex workers, what is missing in the representative’s submissions is the explanation of the link between the applicant’s personal circumstances, what would be imputed to him as an individual on the one hand, and the existence of a particular social group on the other.

28. While the representative’s submissions set out the applicant’s imputed characteristics, they assume that a particular social group made up of persons with those characteristics exists in Fiji. There is no real attempt to explain that there does exist some relevant social group, that the applicant is a member of it, and that he fears persecution “for reasons of” (with reference to Article 1A(2) of the United Nations Refugees Convention) membership of that group.

29. As was made clear in Applicant A, the concept of “particular social group” was not met meant to provide some vague, general, or miscellaneous (“catch all”) category to seek to address any form of harm. That is, if the claims do not fit any other of the matters set out in Article 1A(2) of the Refugees Convention, “particular social group” was not meant to operate to “assist” applicants who did not fit in elsewhere (see  Applicant A at [241] per Dawson J and [26] per McHugh J). Further, as was said in Re Gustavo Carlos Saavedra Morato v the Minister of Immigration, Local Government and Ethnic Affairs [1992] FCA 637; (1992) 111 ALR 417 (“Morato”) at [66]:

    “In my opinion for a person to be a member of a ‘particular social group’ within the meaning of the Convention and Protocol what is required is that he or she belongs to or is identified with a recognizable or cognizable group within a society that shares some interest or experience in common. I do not think it wise, necessary or desirable to further define the expression…”

30. The transcript of the Tribunal hearing was in evidence before the Court (annexed to Mr Chatterjee’s affidavit of 18 September 2014). From that, it is clear that the Tribunal member gave the applicant the opportunity to clarify his claim to fear harm, in circumstances where he said he did not know what was written in his initial statement accompanying his protection visa application, and had been nervous at the interview with the delegate (see T9 to T11).

31. The applicant claimed that his fear arose variously from his association with the VRF (T13), he would face discrimination for “health reasons” (T14), his support for another political party, “the SDL” (T14), his membership of the Methodist Church (T16) and his fear of torture (T16). [Only the health claim was the subject of the applicants’ grounds before the Court.]

32. A great part of the subsequent exchange concerned his fear arising from the VRF claim (T16 to T25). From about the middle of T25 to T30, the Tribunal questioned the applicant about the “question of [his] health” (T25, l.22). The Tribunal asked the applicant what was the basis of this claim. The representative explained (T25, l.25 to l.36):

    “[Tribunal]: …can I just ask, this claim relating to [the applicant’s] health, is that raised on a Convention basis?

    [Representative]: It's raised on a Convention basis.

    [Tribunal]: Of a typical - - -

    [Representative]: On the basis of a typical social group.

    [Tribunal]: Yes, being - - -

    [Representative]: Living with HIV.”

33. At its highest, therefore, the Convention basis for the health claim was said to be harm feared because of “living with HIV”. It may be allowed that “typical social group”, may be a reference to a particular social group.

34. The applicant proceeded to give evidence about how the HIV diagnosis would lead to harm for him personally and his family (T25 to T30). While references were made to “other people” in Fiji who suffered from HIV (see for example T27, ll.23-24), the thrust of the claim was the impact of his health situation on the applicant and his family, and the availability of relevant health care.

35. The Tribunal then took evidence from the second applicant (T30), and this included the availability of care in Australia (T32). The Tribunal then gave the representative the opportunity to file further submissions (T32 to T33). Relevantly, the following exchange occurred (T33, l.44 to T34, l.4):

    “[Tribunal] … Are you arguing this also on complementary protection grounds?

    [Representative]: I am, member, but again I will note that on my reading of it, a successful claim under complementary protection would also be a successful claim under the standard protection. I do not see [the applicant] being overly assisted in relation to complementary protection, if that makes sense. The same argument, discrimination by the general population and the ability (indistinct) protect him from that harm. So we do press the claim but I suspect if you find in our favour in terms of complementary protection, you will also find in our favour under the Refugee Convention.”

1. What is clear from the transcript is that, at the hearing, despite opportunity, no mention was made of the purported particular social groups referred to now in the particulars to ground three. If anything, the representative emphasised that the claims regarding the applicant’s medical condition involved the applicant’s membership of “a particular social group consisting of those living with HIV/AIDS”.

2. When the Tribunal, therefore, came to consider the claim arising from the applicant’s HIV status it focussed on “people with HIV”, which it accepted was a particular social group in Fiji ([35] at CB 184).

3. I pause here to note that the Tribunal’s approach in first identifying the existence of any relevant entity, and then considering whether such an entity could be seen as a particular social group in the country of claimed persecution, was consistent with the approach set out in relevant authorities referred to above.

4. The Tribunal considered the applicant’s claim of membership of a particular social group of “people with HIV” consistent with the only clear exposition of that claim given by the applicant, through his representative ([36] at CB 184 to [40] at CB 187), in particular:

   “Taking these considerations together I am not satisfied there is a real chance that the Applicant would suffer serious harm in Fiji because of his membership of the particular social group consisting of people with HIV.”

5. On a fair reading, what the Tribunal can be said to have included in its understanding of this group were the characteristics attributed to it by the applicant and his representative. At [35] (at CB 184), the Tribunal was cognisant of the need for such a group to be “sufficiently identifiable by characteristics or attributes common to all its members”. The description of this group and its characteristics, as given by the applicant and his representative at the Tribunal hearing and in the submissions, were accepted by the Tribunal as being part of the entity (“people with HIV”).

6. In that context, the Tribunal proceeded to consider whether the applicant’s claim as a person with HIV, and a member of the particular social group of “people with HIV”, would suffer harm. It found he would not. This was reasonably open to the Tribunal on what was before it.

7. It is important to note that in that consideration, the Tribunal did consider whether discrimination and stigma rising to serious harm would result from his HIV status, including the imputation of certain behaviours. The Tribunal found that the applicant’s circumstances did not disclose that he had been involved in homosexual acts or frequented sex workers. The Tribunal found information relied on by the applicant in this regard had no relevance to him (CB 105). I accept the Minister’s submissions that an inference may be drawn in the circumstances that the Tribunal did not consider, similarly, that the applicant was a drug user. The Tribunal’s findings referred to at [115] above, were inclusive of these matters.

8. In this context, there are at least three answers to the applicant’s particulars. First, the claim which is said not to have been made with the degree of detail set out in the particulars, was not ultimately put to the Tribunal.

9. However, and second, even inclusive of what is set out at in the applicants’ representative’s submissions at CB 143 (see [100] ‑ [102] above) what the Full Court set out in WAEE at [46] – [47] stands in answer:

   “[46] It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised `with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

   [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.”

   [Emphasis added.]

10. In the current case, the Tribunal addressed the claim as was put to it by the applicant and his representative.

11. Third, as referred to above, the particular social groups, or group, as now asserted by the particulars, that is, imputed drug users, a person frequenting sex workers, or homosexuals, cannot be said, in the circumstances, to be particular social groups.

12. In Morato at [65], Lockhart J made clear that the interpretation, or meaning, of particular social group should not be narrowly defined. The expression is flexible. Nonetheless, what is required is that to be a particular social group, the asserted social group must possess some attribute or characteristics which distinguish that group from the wider community, in this case, in Fiji. Not only must the persons who are said to comprise the social group reveal some common element such as to identify the group, those elements must unite the members so as to make a recognisable group within, in this case, Fiji (see Applicant A at 264 – 265 per McHugh J and at 285 per Gummow J).

13. As was said in ApplicantS v Minister for Immigration and Multicultural Affairs [2004] HCA 25; (2004) 217 CLR 387 at [36] per Gleeson CJ, Gummow and Kirby JJ:

    “…First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a ‘social group’ and not a ‘particular social group.’ As this Court has repeatedly emphasised, identifying accurately the ‘particular social group’ alleged is vital for the accurate application of the applicable law to the case in hand.”

14. In the current case, I agree with the Minister that the social groups referred to in the applicants’ particulars cannot be said to possess any characteristic that distinguished the groups from the wider community. In the current case, as the applicant made clear at the Tribunal hearing, the distinguishing characteristic which his circumstances presented was that he is a man living with HIV. In essence, the imputed characteristics set out in the particulars have no meaning if the applicant were not a person living with HIV. What the particulars propose, that is the imputed characteristics, all derive from, and depend on, and do not exist outside of, the social group of “men living with HIV”, which is the relevant particular social group in the current case and which was considered by the Tribunal.

15. In all, particulars (c), (d) and (e) of ground three do not assist in making out ground three.

16. Particular (f) to ground three asserts that the Tribunal failed to consider an integer of the applicant’s claims, being that the applicant suffered from PTSD which was a matter relevant to his capacity to subsist if he were to return to Fiji.

17. Before the Court, the applicants explained, with reference to this particular, that the complaint arose from what was said to be the applicant’s “primary” argument being that the “failure” to obtain treatment for his health condition led to harm. In this context, the fact that he suffered from PTSD and that this was relevant to his capacity to “subsist”, and access treatment for his HIV related health issues.

18. The basis for the particular was explained to arise as follows. The applicants have put before the Court a report from a “STARTTS” counsellor (annexure 1C2 of the affidavit of Indraveer Chatterjee of 16 July 2015). This was said to indicate that the applicant had a range of symptoms associated with PTSD, and it was said to “summarise” the applicant’s inability to undertake paid employment for “at least three months”.

19. In written submissions to the Tribunal, the applicants’ representative stated (CB 142 to CB 143):

    “…His health will deteriorate when he cannot sustainably access medication, or is unable to maintain payments for some if privately available. He is unlikely to be able to maintain confidentially over his status due to poor respect to patient confidentiality, stigma and with worsening health…”

20. In oral submissions to the Court, the applicants asserted that the Tribunal relied on certain individual characteristics of the applicant, including his education and employment to find that he would not be denied access to health treatment for his HIV infection in Fiji. The submission was that the report from the STARTTS counsellor, and the reference in the written submissions to the Tribunal were relevant consideration that the Tribunal failed to take into account.

21. There is, of course, a difference between an assertion that the Tribunal fell into jurisdictional error because it failed to take into account a relevant consideration it was obliged to consider (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24), and a failure to consider an integer of the applicant’s claim. The former, despite opportunity and leave being granted for the filing of an amended application, was not pleaded. The latter was.

22. When pressed to clarify their position before the Court, the applicants did not seek to take this matter further. However, the following consideration, in any event, leads to the rejection of the applicants’ claim in particular (f) to ground three.

23. First, the report from the STARTTS counsellor is brief. In the first paragraph, the counsellor repeats what was reported (“reports”) to him by the applicant. There is nothing in the report to say that the counsellor conducted any relevant assessment of the applicant.

24. The second paragraph assumes the “symptomatic presentation” by the applicant, and includes that “as a consequence”, the applicant is not capable of undertaking paid employment. It is of note that what is said in the report is “for a period of at least three months”. It is clear that the “report” was focused on the “…urgent need of whatever financial assistance can be provided to him”.

25. I note that also in the written submissions to the Tribunal the representative stated (CB 138):

    “[The applicant] will not have the necessary familial support upon deterioration of his health to the extent that he needs to rely on others to supply: physical, financial and emotional support to survive. In addition, we note that the previous brutal treatment he received at the hands of the regime have made a significant impact on his ability to work, and rely here upon the assessment made of his psychological condition, and his diagnosis with PTSA, provided to the Department.”

26. The Tribunal relevantly stated ([39] at CB 186 to CB 187):

    “…I accept that his state of health might prevent him returning to work in Fiji…”

27. It is important to note that the matter of PTSD was not satisfactorily linked to, or explained, in context of a claimed fear of harm. The PTSD was, at its highest, linked to what was said to be the inability to work. What the Tribunal said at [36] (at CB 184 to CB 185) is the extent of the relevant claim made by the applicant in this regard. The Tribunal did not, therefore, fail to consider this aspect of the applicant’s claims.

28. Particular (g) was explained before the Court as being dependent on the Court accepting that the applicant made “additional” claims in relation to imputed membership of the groups set out at particulars (c) to (e). Given what is relevantly set out above, particular (g) does not assist the applicants. In all, ground three is not made out.

Conclusion

1. No jurisdictional error arises from the grounds of the application. It is appropriate to, therefore, dismiss the application. I will make an order accordingly.

I certify that the preceding one hundred and forty (140) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  21 December 2015