SZUFQ v Minister for Immigration and Border Protection
[2017] FCA 15
•20 January 2017
FEDERAL COURT OF AUSTRALIA
SZUFQ v Minister for Immigration and Border Protection [2017] FCA 15
Appeal from: SZUFQ & Anor v Minister for Immigration & Anor [2015] FCCA 3406 File number(s): NSD 82 of 2016 Judge(s): SIOPIS J Date of judgment: 20 January 2017 Catchwords: MIGRATION – assessment of country information – whether the Refugee Review Tribunal was bound to accept country information produced by the applicant – whether the reasoning process of the Tribunal was illogical or irrational – whether the decision of the Tribunal was unreasonable. Legislation: Migration Act 1958 (Cth) ss 36(2A), 36(2)(aa), 424A(3)(a) Cases cited: Nahi v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 1
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration and Citizenship v Li (2013) 248 CLR 332
Date of hearing: 5 May 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 109 Counsel for the First and Second Appellants: Mr C Ward SC Solicitor for the First and Second Appellants: HIV/AIDS Legal Centre Counsel for the First Respondent: Mr J Kay Hoyle Solicitor for the First Respondent: Clayton Utz ORDERS
NSD 82 of 2016 BETWEEN: SZUFQ
First Appellant
SZUFR
Second Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
SIOPIS J
DATE OF ORDER:
20 JANUARY 2017
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellants are to pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
SIOPIS J:
This is an appeal from a decision of the Federal Circuit Court of Australia delivered on 21 December 2015, dismissing the appellants’ application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) made on 20 March 2014.
The first and second appellants are husband and wife. Both appellants are citizens of Fiji. The appellants arrived together in Australia on 7 December 2012 on visitor visas, and were accompanied by the first appellant’s sister’s son who was in a rugby team touring Australia.
The appellants applied for protection visas on 28 December 2012. The second appellant, as the first appellant’s wife, applied as a member of the family unit. In the application form for a protection visa the first appellant claimed protection on the grounds that he feared persecution on the basis of his political views.
The first appellant said that he was a member of the Viti Revolutionary Force (the VRF). He went on to say that the military had come to his farm in 2011 searching for him, that he had been arrested and detained for questioning and beaten before release. He said that they had “left a tab” on him until he was cleared to come to Australia; but he said that he was stopped and questioned at Nadi Airport by the military before being allowed to leave Fiji for Australia.
In that application form, he also said that he feared arrest and torture in Fiji on his return. He went on to say that, after he had left for Australia, in the second week of December 2012, the military raided his farm and arrested members of the VRF that were hiding there. The first appellant also said that he has been informed that the military were waiting for his return in order to arrest him again. He said that he would be tortured again in their “ruthless” hands.
The first appellant also included letters of support with his protection visa application. Two of these letters purported to be from an officer of the SDL party, a political party. These documents also included two letters purporting to be from the Fiji police force.
A delegate of the first respondent refused the appellants’ applications for protection visas.
THE TRIBUNAL
On 14 August 2013, the appellants applied to the Tribunal for review of the delegate’s decision.
In August 2013, the first appellant was diagnosed in Australia with HIV.
The appellants were invited to appear before the Tribunal for a hearing on 9 January 2014.
The appellants were represented before the Tribunal.
Prior to the hearing, the appellants’ representative advised the Tribunal that the first appellant would include a claim for a protection visa which had not been made before the delegate. This was that the first appellant feared persecution on the basis of being a member of a particular social group, namely, persons with HIV living in Fiji. The first appellant filed a statutory declaration in support of his application before the Tribunal.
The appellants’ representative filed very detailed submissions. These submissions dealt with the first appellant’s claim to fear persecution because of his political activities, and also his new claim arising from his diagnosis of HIV. The submissions included reference to a number of country information reports dealing with the provision of healthcare services in Fiji to persons who were suffering from HIV, and to attitudes among healthcare workers and the general public in Fiji towards HIV sufferers.
Before the Tribunal, the first appellant claimed that he feared that if he were to return to Fiji he would be harmed by the military government by reason of his political views.
In support of this claim, the first appellant stated that, in 2006, he had been a supporter of the SDL party and that the military had come to his farm and he had been arrested, detained and severely mistreated by the military shortly after the December 2006 coup.
The first appellant claimed that he had later been introduced to the VRF by his childhood friends who were involved in the VRF. According to the first appellant, some supporters of the SDL party had become involved with the VRF. In 2011, the VRF was involved in a campaign to paint on walls graffiti which opposed the military government. The first appellant said that he had provided monies to support the campaign. The first appellant said that two of his childhood friends had been arrested in October 2011 over their involvement with the VRF and the graffiti campaign.
The first appellant went on to say that shortly after he had left for Australia in December 2012, his farm had been raided by police and military who were searching for him. They found members of the VRF who were hiding on his farm and they were arrested. The first appellant said that he feared the authorities had learned of his support for the VRF.
The first appellant said that news of this raid by police and military of his farm was the catalyst for his decision to lodge the protection visa application. The first appellant claimed that he faced arrest, imprisonment and torture if he was to return to Fiji.
The Tribunal rejected the first appellant’s claim that he feared that if he were to return to Fiji he would be harmed by the military government because of his political activities, on credibility grounds.
The Tribunal accepted that the first appellant had been a member and supporter of the SDL party and had voted for and contributed monies to the SDL party during the election campaigns in 2001 and 2006. Although the Tribunal identified a number of difficulties with the first appellant’s evidence on this issue, it was prepared to give him the benefit of the doubt, and accepted that he had been arrested and abused by the military shortly after the December 2006 coup.
The Tribunal went on to observe that the first appellant did not claim before it to have suffered any harm between December 2006 and the time he left for Australia in December 2012. During this time, said the Tribunal, the first appellant had lived with his family in Suva and operated a farm and business at the Suva market. There was nothing, said the Tribunal, to indicate that the military or other authorities could not have located him and harmed him during this time. The Tribunal, therefore, concluded that this fact, coupled with the first appellant being able to easily leave Fiji, through Nadi Airport, its major airport, demonstrated that the first appellant was not of any adverse interest to authorities.
The Tribunal also found that his evidence about his two childhood friends and their arrest, in October 2011, was implausible.
Further, the Tribunal observed that during the hearing before the Tribunal, the first appellant had disowned a number of documents he had submitted to the Department of Immigration and Border Protection (the department) in support of his protection visa application. The Tribunal said that, for this reason, it was unable to be satisfied as to the reliability of any of the documents submitted by the first appellant in support of his claims to fear harm because of his political activities.
The Tribunal did not accept that the first appellant was ever involved in supporting the VRF, either by donating money or by making his farm an available meeting place. Moreover, the Tribunal did not accept that the first appellant’s farm was ever raided by police or military.
The Tribunal, therefore, did not accept that the first appellant was of any adverse interest to the Fijian authorities, or that he would be at risk of harm from the authorities upon returning to Fiji. Further, the Tribunal did not accept that the first appellant had been involved in Fijian political issues while in Australia, or that he would be likely to take an active role in opposing the regime if he were to return to Fiji.
Taking these considerations together, the Tribunal found that there was no real chance that the first appellant would suffer harm of any kind on return to Fiji because of any real or imputed political opinion in opposition to the military government or in favour of the SDL party or the VRF.
The Tribunal considered whether the first appellant would satisfy the complementary protection criterion on the basis of a real risk of significant harm on return to Fiji. Based on the considerations outlined in relation to the first appellant’s refugee claims, the Tribunal concluded the first appellant is unlikely to suffer significant harm as contemplated by s 36(2A) of the Migration Act 1958 (Cth).
As a result, the Tribunal held that it was not satisfied there were substantial grounds to believe that, as a necessary and foreseeable consequence of the first appellant being removed from Australia to Fiji, there would be a real risk that he would suffer harm which would amount to significant harm in terms of s 36(2)(aa) of the Migration Act.
In relation to his diagnosis of HIV, the first appellant also claimed he would suffer serious harm in Fiji because, first, he would be denied access to appropriate medical treatment and, secondly, he would be exposed to discrimination and stigmatisation which would, among other things, deny him his livelihood. The first appellant said that his condition would render him unable to work and to be reliant on his family for support; and that as a consequence of fear and misinformation about his condition, his family would be highly likely to refuse that support.
As mentioned, the first appellant relied before the Tribunal upon a number of country information reports in relation to persons with HIV in Fiji.
The Tribunal accepted that “people with HIV” is a particular social group in Fiji that is distinguishable from society at large. Further, the Tribunal accepted that the first appellant had been diagnosed as HIV positive in August 2013, and was, therefore, a member of this particular social group.
The Tribunal was not, however, satisfied that there was a real chance the first appellant would suffer serious harm in Fiji because of his membership of the particular social group consisting of people with HIV. In light of the nature of the appellants’ contentions on appeal, it is appropriate to set out the whole of [37]-[39] of the Tribunal’s reasons for decision below:
37.I have considered the information submitted by the advisor regarding the treatment of HIV/AIDS in Fiji.
ŸI 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.
Ÿ…
ŸThe advisor cites information pointing to a decline in funding on public health measures by Fiji, reflected in areas such as a shortage of health care professionals, deficiencies in infrastructure and training and declining health standards. He notes that 80% of the health care budget devoted to HIV is derived from foreign aid and that this funding has suffered a steep decline of up to 50% over the past two year. He asserts that the government is unable to increase its share of the cost and that this means the Applicant would not be able to access the antiretroviral treatment vital for his health. This is said to be reflected in the fact that only 58 people are currently receiving treatment, with only 7 people having received treatment over the 2011-12 period, or 10% of the total diagnosed population of HIV. The advisor concludes that this indicates the treatment is not accessible or that that there are significant hurdles such as discrimination which hinder access. I note, however, there is information indicating that, of adults and children with advanced HIV infection in Fiji, 43% were obtaining antiretroviral treatment in 2012, up from 22% in 2010 and 26% in 2011. I also note that the therapy is available free of charge to all persons living with HIV, and that the government has expressed its determination to continue to provide this service, despite the steep decline in foreign aid funding.
38.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.
39.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.
(Footnotes omitted.)
I observe for completeness that the Tribunal also rejected the first appellant’s claim to fear persecution on the grounds of his religious belief, namely, being a member of the Methodist Church in Fiji.
The Tribunal also considered the position of the second appellant, who did give evidence that she, along with her husband, feared the harm arising from the stigmatisation and discrimination referred to by her husband.
The Tribunal also referred to a possible separate claim by the second appellant on the basis of a reference in a letter from an official of the SDL party, produced by the first appellant to the department which stated that the second appellant had been placed under surveillance because of her strong stand against the military regime. The Tribunal rejected this claim, noting that, because no weight can be placed on the letters submitted by the first appellant, this claim could not be considered credible.
THE FEDERAL CIRCUIT COURT
The appellants brought an application for judicial review in the Federal Circuit Court. The appellants relied upon three grounds of review.
The first ground of review was that the Tribunal had fallen into jurisdictional error by employing a reasoning process that was illogical or irrational in making findings of fact which were not open to any logical or rational decision-maker.
The second ground of review was that the Tribunal had fallen into jurisdictional error by making findings that no reasonable decision-maker could have made, and/or making findings of fact for which there was no evidence, in finding that the first appellant would have access to free treatment on return to Fiji.
The third ground of review was that the Tribunal had failed to conduct a review of the delegate’s decision by failing to consider integers of the appellants’ claims.
The primary judge considered grounds of review one and two together. The primary judge dismissed both grounds of review.
The primary judge found that the appellants were attempting to challenge factual findings made by the Tribunal by reference to the legal principles relating to illogicality and unreasonableness, but that the impugned findings were reasonably open to the Tribunal. The primary judge observed at [40]–[42] as follows:
40.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.
41.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]).
42.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.
The primary judge went on to observe at [50]:
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 findings here was reasonably open to it.
On this basis, the primary judge concluded that there was no jurisdictional error by the Tribunal and, therefore, grounds one and two of the grounds of review were not made out.
The primary judge also dismissed the third ground of review, on the basis that the Tribunal had considered the claims which were made before the Tribunal by each of the appellants.
THE APPEAL
On 18 January 2016, the appellants filed their notice of appeal to this Court. That notice contained the following grounds of appeal:
1.The Second Respondent fell into jurisdictional error by employing a reasoning process that was illogical or irrational, in making findings of fact that were not supported by logical grounds.
…
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 [sic] which there was no evidence, in finding that the Applicant would have access to free treatment on return to Fiji.
…
3.Further or in the alternate, the Second Respondent constructively failed to exercise jurisdiction, in failing to consider the claims put forward by the Applicant and/or component integers of the Applicant’s claim.
The grounds of appeal, as formulated, did not identify any error on the part of the primary judge. Rather, the grounds of appeal, in essence, repeated the grounds of review before the Federal Circuit Court. However, it was accepted by the parties that the grounds of appeal should be treated as contentions that the primary judge erred in failing to find that the Tribunal fell into the jurisdictional error claimed in each of the grounds of review.
Grounds one and two of the appeal
I will deal with grounds one and two of the appeal together.
In their written submissions, the appellants first contended that the following findings (set out in [38] of the Tribunal’s reasons for decision) were not open to the Tribunal on the evidence and disclosed “an illogical or irrational thought process”:
(a)the Tribunal was not satisfied that the first appellant would be denied access to free anti-retroviral treatment if he were to return to Fiji;
(b)the Tribunal was not satisfied that the factors limiting access to HIV treatment would have any relevance for the situation of the first appellant, an educated 47 year old businessman who lived in Suva; and
(c)the Fijian government remained committed to providing medication free of charge to all HIV/AIDS sufferers in the country.
The appellants contended that the findings were illogical or irrational because the entirety of the evidence before the Tribunal demonstrated that a reasonable proportion of the people with HIV in Fiji, did not receive access to HIV medication and that there were substantial failures within the healthcare system.
In support of their contention, the appellants referred to the country information which they had produced to the Tribunal and contended that the finding was not open to the Tribunal on the basis of that country information.
In this regard, the appellants referred specifically to two items of country information, namely, the Global AIDS Progress Report (progress report) made by the Fijian government to UNAIDS in 2012; and a further study involving 13 women in 2008 at prenatal clinics, who had been diagnosed as HIV positive.
The appellants also referred to the fact that they had provided country information to the Tribunal that much of the funding for HIV treatment in Fiji had been provided by foreign aid and that in recent times the amount of foreign aid had been substantially reduced.
The appellants contended that whilst the progress report stated that anti-retroviral treatment was provided free to persons infected with HIV in Fiji, it also demonstrated that there was a “poor performance” in the delivery of the medication. The appellants said that the progress report had stated that 58 persons were receiving anti-retroviral treatment and that this only amounted to about 10% of the persons who were HIV sufferers.
Further, the appellants said that the second report to which they referred, showed that of the 13 women who were the subject of the study, four had died and two had, possibly, contracted AIDS related conditions.
In their submissions on appeal, the appellants also criticised the Tribunal for having conducted its own research into country information about the provision of treatment to persons with HIV in Fiji; and for having taken that research into account, without having first referred that research to the appellants for comment. The appellants contended that in this regard, the Tribunal had exceeded the bounds of its jurisdiction and this had rendered the Tribunal’s decision “ineffective”.
In any event, contended the appellants, it was illogical for the Tribunal to have taken that research into account, because the research referred to 43% of persons with advanced HIV and the first appellant was not at the stage of being characterised as having “advanced HIV”. Furthermore, the results in the Tribunal’s research were expressed as a percentage of the group in question, and it was not known how many persons actually fell into the group.
The appellants also complained that the Tribunal should not have taken that additional country information into account because the information had been obtained from a website, whose provenance was unreliable.
Further, the appellants contended that the first appellant’s educational background and/or his status as a businessman and/or his location were not logically relevant to his ability to access anti-retroviral medication.
Next, the appellants contended that the Tribunal erroneously conflated a commitment by the Fijian government to provide HIV medication with accessibility to medication, being a finding that was not open on the evidence before the Tribunal.
The appellants’ complaint is about the manner in which the Tribunal assessed the country information and applied it in relation to the first appellant’s position. In essence, the appellants’ complaint is that the Tribunal did not assess the country information in the manner for which they had contended before the Tribunal.
In my view, the primary judge did not err in concluding that the complaints made by the appellants in relation to the findings referred to at [48] above, were an attempt to engage in a merits review under the rubric of jurisdictional error on the basis of unreasonableness and/or irrationality or illogicality.
It is well recognised that the Tribunal is not bound by the rules of evidence and may gather such country information as it considers relevant. Further, the weight that the Tribunal accords items of country information, when assessing the country information, is a matter within its jurisdiction as part of its fact finding exercise. In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11], the Full Court (Gray, Tamberlin and Lander JJ) observed:
By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on “country information”. The weight that it gives to such information is a matter for the Tribunal itself as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to “guidance” as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on “country information” that is not true. The question of accuracy of the “country information” is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of “country information”, it would be engaging in merits review.
Further, I also observe, in passing, that there was no obligation on the Tribunal to have called upon the appellants to comment upon the additional country information which the Tribunal found for itself. Section 424A(3)(a) of the Migration Act provides that there is no obligation upon the Tribunal to refer country information to an applicant for comment.
In this case, it is apparent from a perusal of [37] and [38] of the Tribunal’s reasons for decision (see [32] above) that the Tribunal did have regard to the country information which the appellants’ representative had produced to the Tribunal, both in relation to the limited availability within Fiji of free anti-retroviral treatment, and to the fact that foreign aid funding for that treatment had been dramatically reduced.
The Tribunal then went on to consider whether the first appellant had a well-founded fear of persecution on the basis that he would not receive free anti-retroviral treatment for his HIV condition by reference to the first appellant’s personal circumstances. After having taken into account the first appellant’s personal circumstances, namely, that he was a 47 year-old businessman with a good educational background and resident in Suva, the Tribunal was not satisfied that the first appellant’s fear that he would not be able to receive free anti-retroviral treatment for his HIV condition was well-founded.
In my view, neither the approach which the Tribunal adopted, nor its reasoning, could be characterised as illogical or irrational.
As to the approach which the Tribunal adopted of having regard to the first appellant’s personal circumstances, in the context of the wider country information on the availability of HIV treatment, the following observations of Gleeson CJ in Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 1 at [8] are germane:
The effect of the country information, from a number of sources, including the Department of Foreign Affairs and Trade, the United States State Department, a professor at the California State University, and newspaper reports, was that there is no simple answer to the question whether Christians are persecuted in Iran. The ultimate concern of the tribunal, of course, was with the appellant, not with Christians as a class, but it was factually relevant to that concern to consider the country information, and it was legitimate to endeavour to relate generalisations about the treatment of Christians to the position, or likely position, of the appellant. It is not clear what else the tribunal could do. It did not believe that the appellant had been persecuted in the past because of his interest in Christianity. It was prepared to accept that he had become a Christian after leaving Iran. It was reasonable, and necessary, to inquire about how Christians are treated in Iran. It was not suggested, and it could not reasonably be suggested, that the information considered by the tribunal was irrelevant. No such ground of appeal is advanced. Naturally, the country information was not related specifically to the case of the appellant, and it was necessary for the tribunal to deal with it as best it could or, alternatively, dismiss it as entirely unhelpful. That was a choice to be made by the tribunal in its role as a finder of fact. (Emphasis added.)
The Tribunal’s approach in having regard to the first appellant’s personal circumstances within the context of the country information, was entirely orthodox and in accordance with the observations of Gleeson CJ set out above.
In Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [148], Robertson J, having reviewed the authorities, said that for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, measured against the standard that it is not enough for the question of fact to be one on which reasonable minds might come to different conclusions.
In my view, the reasoning of the Tribunal did not fall within the characterisation of being illogical or irrational such as to give rise to a jurisdictional error for the following reasons.
In its reasons for decision, the Tribunal recognised the fact that only a proportion of the persons in Fiji who suffered from HIV would be in receipt of free anti-retroviral treatment. However, there was evidence before the Tribunal that the provision of medical services was considerably better in the urban environments than in the remote rural environment. In assessing the first appellant’s asserted fear that he would not be able to access free anti‑retroviral treatment, the Tribunal took into account that the first appellant was a businessman with a good education who lived in Suva. Implicitly, the Tribunal was distinguishing the position of the first appellant from that of a poor person with limited or no education, living in a rural environment in Fiji. The Tribunal concluded that, having regard to the first appellant’s relatively privileged position, it was not satisfied that he would not be one of the minority of persons who would receive free anti-retroviral treatment.
In my view, this was a finding that was open on the evidence, and the reasoning of the Tribunal could not be characterised as being so devoid of logic or rationality as to render the decision as one which was attended by jurisdictional error.
Nor am I of the view that the Tribunal’s reference to, and deployment of, the country information it found, showing an increase over the years in the percentage of persons with advanced HIV receiving HIV treatment, comprises jurisdictional error on the grounds of illogicality or irrationality. Contrary to the appellants’ submission, the reference to, and deployment of, this country information does not evidence a conflation in the Tribunal’s reasons between the Fijian government’s commitment to provide HIV treatment and the availability of such treatment. The Tribunal’s reasons recognised clearly that there is a limitation upon the number of persons who would be in receipt of the free anti-retroviral treatment, and it assessed the position of the first appellant within the context of this evidence. This reasoning stood on its own. There was no conflation as alleged by the appellants. The reference by the Tribunal to the impugned information was in response to the submission made by the appellants at the Tribunal hearing that the Fijian government’s commitment to continuing to provide HIV treatment would be deleteriously affected by the withdrawal of foreign aid. The Tribunal recognised that, whilst the Fijian government retained a commitment to providing free anti-retroviral treatment, the availability of the treatment was still going to be limited.
Further, in my view, the reasoning in which the Tribunal engaged, in making the impugned findings referred to at [48] above, falls within the “decisional freedom” left to the decision‑maker to which French CJ referred in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [28]; and did not comprise jurisdictional error on the grounds of unreasonableness.
In my view, the primary judge did not err in coming to this view.
I also observe, for the sake of completeness, that it was not a ground of review that the provenance of was so devoid of credibility as to render it a jurisdictional error for the Tribunal to have had regard to that information. Nor was there any ground of appeal to that effect. Accordingly, I have not had regard to the appellants’ contentions in respect of that issue. In any event, there was no evidence either before the primary judge or this Court to support the appellants’ contentions as to the unreliability of the impugned information from >
The appellants also complained about the Tribunal’s reasoning process in rejecting the first appellant’s claim that he feared he would not be able to subsist if he was to return to Fiji because of the stigmatisation of, and discrimination against, HIV sufferers by healthcare workers and the general public. The first appellant had contended he feared he would be ostracised by his family and that persons would not buy his produce, if his HIV status was to become public knowledge.
The Tribunal accepted that there was some evidence of discrimination and stigmatisation of HIV sufferers in Fiji, including among healthcare workers and the general public. However, the Tribunal said that there was nothing in the country information to indicate that these attitudes rose to the level of serious harm suggested by the first appellant, and the Tribunal rejected his contention that he would be ostracised by his community, his relatives or his immediate family.
The Tribunal also went on to find that, “against the background of [the] strong anti‑discrimination measure introduced by the regime in 2001”, it was not satisfied that the first appellant would be subjected to discrimination in the more formal settings such as housing, employment or access to government services.
The appellants contended in their written submissions that there was “on the evidence…no basis upon which the Tribunal could have concluded that the 2011 decree was effective to provide protection against the stigma and discrimination feared” by the first appellant.
The appellants went on to refer to the Tribunal’s observations at [37] of its reasons for decision that:
[T]here 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.
The appellants then referred to the Tribunal’s observations at [37] of its reasons for decision that:
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.
The appellants went on to say that it followed that the finding of the Tribunal relying on a description of the 2011 decree as a “strong anti-discrimination measure”, was illogical and unavailable to it. The appellants contended in their written submissions that:
It was not logical for the Tribunal to reject the contentions of the First Appellant as to stigma and discrimination in sole reliance upon the existence of a decree which the Tribunal itself found had never been enforced.
I do not accept these submissions.
The Tribunal’s rejection of the first appellant’s claim that he feared that he would suffer serious harm because he would be ostracised and discriminated against, was not founded “in sole reliance” upon the existence of the decree as the appellants contended in their written submissions.
The Tribunal made a number of additional findings in support of its ultimate conclusion.
First, the Tribunal rejected the first appellant’s claim, made in support of the extent of discrimination and stigmatisation among healthcare workers, that the reason he had not been advised of a diagnosis with HIV in Suva at the private hospital to which he went, was because of the stigma associated with HIV.
Secondly, the Tribunal accepted that there may come a time when the first appellant may not be able to work, but that would not mean that the first appellant would not be able to subsist. This was because he would have access to a farm which the Tribunal found was leased until 2039. The Tribunal also rejected the first appellant’s claim that whilst he was still working, persons would not buy his produce if they knew that he had HIV, as being entirely speculative.
The Tribunal also rejected the claim that the first appellant would be denied support by his family and observed that his wife continued to support him notwithstanding his diagnosis of HIV.
In my view, each of those findings were open to the Tribunal. The Tribunal had already expressed doubts as to the first appellant’s credibility in the course of considering the first appellant’s claim to fear persecution on the grounds of his political views.
The context in which the Tribunal referred to the 2011 decree as being a “strong anti‑discrimination measure” was confined to the Tribunal’s views as to whether the first appellant would be discriminated against in “formal settings” such as housing, employment or access to government services.
The primary judge dealt with this contention of the appellants at [51]–[54] of his reasons for decision in the following terms:
51.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.
52.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.
53.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”.
54.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.
I agree with the analysis of the primary judge.
On a fair reading of the Tribunal’s reasons for decision, the Tribunal accepted that the 2011 decree was a powerful expression of political will, despite potential issues with the enforcement of its provisions. As the primary judge said, there is nothing illogical or irrational in recognising the influential force of the statement of political intent as manifest by the legislation, in relation to matters within the government’s purview, whether or not prosecutions were brought under the anti-discrimination legislation.
Further, in my view, the reasoning engaged in, and findings made, by the Tribunal on this issue also clearly fall within the area of “decisional freedom” of the impugned decision‑maker, and do not disclose jurisdictional error on the grounds of unreasonableness.
It follows that the first and second grounds of appeal are dismissed.
The third ground of appeal
The third ground of appeal is, in essence, that the primary judge erred by failing to find that the Tribunal had failed to consider the second appellant’s claim, in her own right, as being a member of a particular social group.
The essence of the contention made by the appellants is that the second appellant put forward a claim to fear persecution as being a member of a particular social group, namely, a woman who was a partner of a man who was HIV positive. The appellants contended that the Tribunal failed to consider the second appellant’s claims individually, which would by necessary implication, include such characteristics personal to the second appellant such as her gender.
The primary judge found that the second appellant had not made a separate claim which would have required consideration of her gender as an element of a separate social group.
Before the Tribunal, the second appellant, in a statutory declaration referred (without expanding thereon) to having a concern, because of the first appellant’s diagnosis of HIV, for her safety and that of their children. At the hearing, the second appellant, in oral evidence, referred to a fear of being ostracised and its consequences. The following sentence appears in the transcript of the second appellant’s evidence:
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…
The Tribunal said at [46] of its reasons for decision:
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 [the first appellant] 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.
It is apparent, therefore, that the Tribunal considered the case of the second appellant by reference to her suffering indirect harm, arising from the harm which would be suffered by the first appellant.
The primary judge found that no separate claim to fear persecution on the basis of being a member of a separate social group, as alleged by the appellants, had been advanced by the second appellant before the Tribunal.
In my view, the primary judge did not err in coming to that decision.
At the hearing of the application before the Tribunal, the representative of the appellants advised the Tribunal, in effect, that the second appellant’s claims rose and fell based on the first appellant’s claims.
I agree with the submissions of the first respondent to this Court that there was nothing in the material before the Tribunal that indicated that the second appellant was making a distinct claim, where a significant component of that claim was her gender.
In my view, the Tribunal dealt with the position of the second appellant on the basis of the case which was put to it, namely, that she would by association with her husband, suffer the harm consequent upon the discrimination and stigmatisation directed against her husband.
It follows that the third ground of appeal is dismissed.
The appeal is dismissed with costs.
I certify that the preceding one hundred and nine (109) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate:
Dated: 20 January 2017
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