SZUNF v Minister for Immigration
[2017] FCCA 2274
•20 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUNF v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2274 |
| Catchwords: MIGRATION – Migration Act 1958 (1958) – application for judicial review of decision of Administrative Appeals Tribunal affirming a Delegate’s decision not to grant a Protection visa – applicant submitted that the Administrative Appeals Tribunal failed to consider a particular social group implicitly raised on the materials but not explicitly raised – claim not squarely raised and no jurisdictional error – application dismissed. |
| Cases cited: CPE15 v Minister for Immigration [2017] FCA 591 NABE v Minister for Immigration (No. 2) (2004) 144 FCR 1 SZBEL v Minister for Immigration [2006] 228 CLR 152 |
| Applicant: | SZUNF |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1628 of 2014 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 18 October 2016 |
| Delivered at: | Sydney |
| Delivered on: | 20 September 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Kumar of Counsel |
| Solicitors for the Applicant: | Sarom Solicitors |
| Counsel for the Respondents: | Mr A Keevers |
| Solicitors for the Respondents: | Sparke Helmore |
THE COURT ORDERS AS FOLLOWS
The Amended Application filed in this Court on 29 August 2014 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1628 of 2014
| SZUNF |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of Fiji aged 64 years, having been born on 19 September 1953.
By Amended Application filed in this Court on 29 August 2014 he seeks to quash and have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (at the time of decision the Refugee Review Tribunal) (Tribunal) dated 14 May 2014, which affirmed a decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 24 July 2012, refusing to grant to him a Protection (Class XA) visa (Protection visa).
The Applicant was granted a Tourist (Class TR) (Subclass 676) visa (Tourist visa) offshore on 4 January 2012 which expired on 11 April 2012 and entered Australia on 11 January 2012.
On 6 March 2012 he applied for a Protection visa, the subject of this proceeding.
He had previously entered Australia on 22 May 1985 on a UA-V10 visa which was valid for 1 month but he overstayed until located by the Department of Immigration some 8 years later and was then involuntarily removed from Australia on 2 February 1993.
Claims for Protection
In his Statement dated 6 March 2012 which formed part of his Protection visa application the Applicant claimed the following:
a)He was born and raised in Fiji and belonged to the Fijian ethnic group;
b)He became a lawyer in Fiji in about 2010;
c)There was a drastic change in Fiji as a result of the 1987 coup d’état led by Mr Rabuka;
d)Fiji remains unstable as a result of the 2006 coup d’état staged by Mr Bainimarama; and
e)Before he left Fiji he represented a Mr V Vivian (an anonymised name for the purpose of this judgment) who was the former secretary of the SDL Party. Mr Vivian was acquitted by a court and a retrial of the case was ordered and the Fijian military advised the Applicant by phone to quit being counsel for Mr Vivian. The Applicant left Fiji shortly thereafter.
Grounds and Criteria for the Granting of a Protection Visa
A convenient summary of the grounds and criteria for the grant of a Protection visa can be found in the judgment of Wigney J in SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 at [5]-[7] as follows:
[5]The criteria for the grant of a protection visa are well known. At the time the appellant applied for a protection visa, s 36(2)(a) of the Migration Act 1958(Cth) provided that a criterion for a protection visa was that the appellant was a non-citizen in Australia in respect of whom the Minister was satisfied Australia had protection obligations under the Refugees Convention. In simple terms, Australia has protection obligations under the Refugees Convention in respect of a person who is outside their country of origin and who is unable or unwilling to avail themselves of the protection of that country, or to return there, on account of them having a well-founded fear of persecution based on reasons of race, religion, nationality, membership of a particular social group, or political opinion.
[6]Section 36(2)(aa) of the Act provided an alternative criterion known generally as the complementary protection criterion. A person met the complementary protection criterion if the Minister was satisfied that Australia had protection obligations because the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there was a real risk that the non-citizen would suffer significant harm.
[7]The remaining subsections of s 36 and subdivision AL of the Act contained additional provisions about protection visas, including provisions that defined or explained various expressions used in s 36(2)(a) and (aa), such as “significant harm” and “persecution”.
Decision of Delegate
The Applicant attended a telephone interview with the Delegate on 28 June 2012.
I note at this point that the court proceeding concerning Mr Vivian was described by the Delegate in her Decision Record as a “civil larceny matter” and generally referred to as a civil proceeding. It is clear from the body of evidence in this proceeding that the charge of larceny against Mr Vivian was, as one would expect, a criminal proceeding and the Tribunal in its Decision Record referred to the case as a criminal case. Nothing appears to turn on this in any event.
The Delegate summarised the Applicant’s claims for protection in her Decision Record of 24 July 2012 as being:
(a)The Applicant was a strong supporter of the SDL and held political views opposed to the current Fijian military-led government;
(b)The Applicant could not live in a country governed by a military regime which was not democratically elected;
(c)The Applicant had represented a former secretary of the SDL, Mr Vivian, during a court case and was strongly pressured to stand down from the civil case by the Fijian military. Mr Vivian was claimed to be the nephew of the Applicant and a former secretary / campaign director of the SDL;
(d)The Fijian authorities will know that the Applicant has applied for a protection visa in Australia and his life will be at risk and he will be detained, questioned, beaten and killed by the Fijian authorities if forced to return to Fiji.
During the interview the Delegate on four occasions asked the Applicant whether he had visited Australia prior to his arrival on 11 January 2012 and on each occasion he denied having visited Australia previously. The Delegate recorded that it was only after she had put to him Department of Immigration records indicating that he had lived in Australia for 8 years, ending in his involuntary removal from Australia on 2 February 1993, that the Applicant admitted and confirmed the same. The Delegate also recorded in her Decision Record that the Applicant stated that he was a strong supporter of the SDL but had not been active politically in any way since 2005 and had not spoken in public or been identified, questioned or detained by the Fijian authorities for expressing his political opinion and that he had not experienced any issues with the Fijian authorities apart from the incident when he was acting as lawyer for Mr Vivian.
In connection with his appearing as lawyer for Mr Vivian the Delegate recorded that the Applicant claimed that he provided counsel and legal representation to Mr Vivian, who was his nephew and a former secretary / campaign director of the SDL, in a matter in the Suva Magistrates Court on 15 November 2011. The charges against Mr Vivian involved larceny of a government vehicle with Mr Vivian being initially acquitted in 2008 on a finding of no case to answer. The Fijian Government successfully appealed that decision, with the case being remitted to be heard in the Suva Magistrates Court. The Applicant claimed that a succession of postponements occurred and Mr Vivian was represented by various lawyers but the Applicant represented him on 15 November 2011 in the Suva Magistrates Court with the case being continued again in January 2012 and then being moved to the High Court for hearing on 18 June 2012. The Applicant further claimed that he received a telephone call on 7 November 2011, approximately one week prior to 15 November 2011, from a person identifying as being from the Intelligence Department of the Fijian military, and this person advised the Applicant to back off the case because the Applicant was related to Mr Vivian and because Mr Vivian was on a blacklist. The Applicant refused to give up the case and appeared in Court for Mr Vivian on 15 November 2011. A week later, on 22 November 2011, the Applicant claimed that he received a further telephone call telling him to back off and threatening the Applicant with serious harm if he did not. The Applicant claimed that he became scared and decided to comply and advised Mr Vivian that he could not continue to represent him. He then made plans to leave Fiji and did not receive any further threats.
In the result the Delegate was satisfied that the Applicant did represent Mr Vivian at the Suva Magistrates Court on 15 November 2011, the case was continued to another date, the Applicant withdrew from the case, Mr Vivian then found alternative representation and the case continued with a different lawyer. However, the Delegate was not convinced that the Applicant received threats from the Fijian military but if there had been such threats the Applicant had complied with them and the Delegate was satisfied that the Applicant was of no further interest to the Fijian authorities and did not face a risk of serious harm as a result of providing counsel and legal representation to Mr Vivian.
The Delegate was not satisfied that the Applicant satisfied either the Refugee Convention criterion or the complementary protection criterion and refused to grant the Applicant a Protection visa.
Decision of Tribunal
The Applicant applied for merits review of the Delegate’s decision to the Tribunal on 24 August 2012.
He appeared before the Tribunal via video link on 5 June 2013 to give evidence and present arguments. The Tribunal also received oral evidence by video link from the Applicant’s brother and two of his sisters and the hearing was conducted with the assistance of an interpreter in the Fijian and English languages. The Tribunal also listened to an audio recording of the Applicant’s interview with the Delegate on 28 June 2012. At the Tribunal hearing the Applicant stated that he feared losing his life if he returned to Fiji because he would be taken for interrogation by the Army and the Army would harm him because he was a strong supporter of the Qarase Government in Fiji which ended with a coup d’état in 2006 and because he had taken on the legal case of Mr Vivian, who was a former secretary of the SDL.
In relation to the Applicant acting for Mr Vivian, his evidence at the Tribunal hearing was subject to some variations. At [30] of its Decision Record the Tribunal recorded that the Applicant claimed that he had appeared for Mr Vivian at several court hearings, including in the High Court, and then that he appeared approximately four times during 2011 in the Suva Magistrates Court and that his last appearance was in approximately November 2011.
At [31] of its Decision Record the Tribunal recorded that the Applicant claimed to have received two or three telephone calls from the military telling him to back off Mr Vivian’s case and threatening to take him to a military camp. The Applicant told the Tribunal that the third call was in October 2011 and that he stopped working on Mr Vivian’s case in October 2011.
At [33] the Tribunal recorded that the Applicant claimed to fear harm in Fiji because of his support for the SDL, his involvement with Mr Vivian’s case and that the Fijian Government is illegal and it will want to harm him because he has been in Australia.
At [39] the Tribunal recorded that it advised the Applicant that it had a number of concerns about the credibility of many of his claims and it then proceeded to put certain information to the Applicant and advised that he could request an adjournment to consider his response to that information. Nevertheless, the Applicant elected to respond to the information at the hearing. The Tribunal also gave the Applicant a further opportunity to respond to the information in writing after the hearing.
At [44] the Tribunal recorded that it asked the Applicant if he had any documentary evidence proving that he acted on behalf of Mr Vivian and the Applicant answered that he did but that he would have to get such evidence from Fiji.
At [45] the Tribunal recorded that country information which it had considered suggested that while there had been a case against Mr Vivian in the Fijian courts, there were no reports of lawyers involved in the case being threatened or targeted for harm and that available country information suggested that supporters of the SDL might face a risk of harm if they were prominent or high profile supporters but not otherwise.
At [47] of its Decision Record the Tribunal recorded that it gave the Applicant until 19 June 2013 the opportunity to provide any further information in support of his protection claims. The Applicant availed himself of this opportunity and forwarded a number of documents to the Tribunal on 20 June 2013 which were listed at [48] of the Decision Record of the Tribunal. These documents included legal documents relating to Mr Vivian’s case.
At [49]-[75] the Tribunal analysed and considered the Applicant’s claims and recorded its findings.
At [50] the Tribunal noted that the Applicant feared harm at the hands of the Fijian Government and military because he had been a long-time supporter of the SDL, had campaigned on its behalf and acted on behalf of a former party secretary of the SDL in criminal proceedings and also that he claimed to fear harm because he is a lawyer and because he has come to Australia and sought asylum here.
At [51] the Tribunal found that the Applicant had been admitted to practise as a lawyer in Fiji in February 2010. At [52] the Tribunal recorded that it had doubts about the credibility of the Applicant’s claims as a result of inconsistencies in the information provided by him to the Delegate and to the Tribunal about his having previously resided in Australia, his involvement with the SDL and the threats he had received from the Fijian military.
At [53] it found that the Applicant had deliberately lied to the Department in relation to his application for the Tourist visa on which he had entered Australia on 11 January 2012, by not stating that he had previously resided in Australia without a visa for many years. At [54] the Tribunal found that the Applicant had provided false information to the Delegate by telling the Delegate that he had never visited or been in Australia in the past.
At [55]-[62] the Tribunal analysed other items and matters of evidence and at [62] it accepted that the Applicant acted on behalf of Mr Vivian at a court hearing before the High Court in August 2010, on the basis of documentary evidence establishing this fact provided after the hearing; see [23] above. Then at [63]-[64] the Tribunal recorded its ultimate findings as follows:
[63]In light of the above and the country information about Mr Vivian referred to at [103 d] below, I accept the following in relation to the applicant’s claims:
i.The applicant is related to Mr Vivian.
ii.Mr Vivian is a former secretary of the SDL. Criminal charges were laid against Mr Vivian in relation to the sale of a motor vehicle and have been prosecuted in the Fijian criminal courts.
iii.The applicant trained as a lawyer and was admitted to practice in Fiji in early 2010.
iv.The applicant acted on behalf of Mr Vivian at a hearing before the High Court of Fiji in August 2010 in relation to criminal charges laid against Mr Vivian.
[64]However, in light of my significant concerns about the applicant’s credibility, I do not accept the following in relation to the applicant’s claims:
i.The applicant is or was ever a member or supporter of the SDL. Nor were or are any members of his family, other than Mr Vivian.
ii.The applicant provided financial support to the SDL.
iii.The applicant attended meetings or public gatherings organised by the SDL.
iv.The applicant attended a meeting or participated in writing a letter about individuals being taken to military camps in 2006.
v.The applicant ever publicly or actively spoke on behalf or otherwise expressed political opinion in support of the SDL and/or the Qarase government or against the current Fijian government, either in Fiji or in Australia.
vi.Other than Mr Vivian, the applicant has any relatives or close friends who have advocated for human rights and been targeted by the Fijian government or military as a result.
vii.The applicant has provided financial or any other form of support to Mr Qarase in legal proceedings against him.
viii.The applicant acted on behalf of or otherwise represented Mr Vivian in relation to the criminal proceedings against Mr Vivian during 2011 or at any time other than at the hearing before the High Court of Fiji in August 2010.
ix.The applicant was threatened, either by telephone or in person, or otherwise subjected to any form of serious or significant harm by the Fijian military or anyone else either because he was acting or had acted on behalf of Mr Vivian, or for any other reason.
x. Members of the Fijian military or anyone were looking for the applicant in February or March 2012, or at any other time.
(emphasis supplied.)
At [66]-[69] the Tribunal rejected the Applicant’s claims that he faced a real chance of suffering serious harm if returned to Fiji as a result of an actual or imputed political opinion against the current Fijian Government and military or for supporting the SDL. The Tribunal noted at [69] that country information indicated there were no reports of lawyers representing SDL members being mistreated or harmed by the Fijian authorities since 2009 and it was not satisfied that the Applicant’s profile as a lawyer, even taking into account that he had acted on behalf of Mr Vivian before a court in August 2010, would result in him being imputed with a political opinion critical of the current Fijian Government and military. At [70] it rejected the Applicant’s claim that he would face a real chance of suffering serious harm because he would be identified as having unsuccessfully sought asylum in Australia.
At [72]-[76] the Tribunal considered the Applicant’s claim to be a member of particular social groups, being “lawyers in Fiji”, “failed asylum seekers from Australia in Fiji” and “family members of Mr Vivian”. However, at [73] the Tribunal rejected the claim that the Applicant would suffer harm because of his membership of the particular social group “lawyers in Fiji” in light of country information. At [74] of the Decision Record it accepted country information as indicating that being a family member of an SDL leader did not indicate that there was a real chance of suffering serious harm and rejected the Applicant’s claim to fear harm because of his membership of the particular social group comprising “family members of Mr Vivian”. At [75], again in the light of country information, the Tribunal did not accept that the Applicant faced a real chance of suffering serious harm because of his membership of the particular social group comprising “failed asylum seekers from Australia in Fiji”.
At [78]-[80] the Tribunal considered the Applicant’s claims under the complementary criterion protection and in light of its previous findings rejected them and the Tribunal affirmed the Delegate’s decision not to grant to the Applicant a Protection visa.
Grounds of Attack on Tribunal Decision
The Grounds relied upon by the Applicant in his Amended Application of 29 August 2014, and maintained by Mr Kumar of Counsel, who appeared for the Applicant at the hearing, were as follows:
GROUND 2
The Tribunal committed jurisdictional error when it failed to properly identify, assess and address the Applicant’s particular social group; that being indigenous Fijian lawyers who not only belonged to members of the families opposed to the Fijian military regime, but also opposed the military government personally, and a relative of a high profile SDL member. The Tribunal instead simply just generally assessed the Applicant’s political opinion and failed to assess integer / attribute of imputed political opinion of such a particular social group.
Particulars
Instead of looking at the Applicant’s claims under the Applicant’s social group, the Tribunal relied on country information and generalised its decision that “it did not accept that lawyers in Fiji face a real chance of suffering serious harm because of their membership of their social group”. The Applicant is an indigenous Fijian lawyer and an opponent of the Fijian military regime and government.
GROUND 3
The Tribunal committed jurisdictional error by denying the Applicant procedural fairness and thereby breached s.425 of the Act.
Particulars
3.1The Tribunal stated (CB 166 at [62]) “…the applicant has provided no documents of having acted on behalf of Mr Vivian, at any other time…”.
3.2The Tribunal at no time put the Applicant on notice that it would reject that the Applicant acted for Mr Vivian (other than once) if the Applicant did not put all documentary evidence before the Tribunal.
3.3The Tribunal thereby breached s.425 and failed (sic) carry out its duties in accordance with s.414 of the Act.
GROUND 4
The Tribunal committed jurisdictional error by making finding not supported by evidence.
Particulars
4.1The Tribunal stated (CB 168 at [69];) “…no reports of lawyers representing SDL members being mistreated or harmed…” and at [73].
4.2The Tribunal found that the Applicant would not be harmed as a lawyer carrying out his practice. The Tribunal erred in its finding in that Applicant apart from being a lawyer representing Mr Vivian (who was a high profile member of SDL) was acting for high profile family member. The evidence was not before the Tribunal to support the findings it did.
4.3There was no material to draw inference that the Applicant would not be imputed with the political opinion not “being critical of the Fijian government (CB 169 at [71]).
Consideration
Ground 2
At the hearing this Ground was refined by Mr Kumar, who withdrew the adjective “indigenous”, so that the particular social group which he submitted that the Tribunal had failed to consider was “Fijian lawyers who represented SDL Party executives”, and in this regard Mr Kumar also withdrew [22] of his written Outline of Submissions which had referred to ethnicity.
This Ground clearly seeks to invoke the well-established principle that the Tribunal is required to deal with the case raised by the material or evidence before it and where it fails to make a finding on “a substantial, clearly articulated argument relying upon established facts”, that failure can amount to a failure to afford procedural fairness and a constructive failure to exercise jurisdiction: NABE v Minister for Immigration (No. 2) (2004) 144 FCR 1 at 17 [55] per Black CJ, French and Selway JJ (NABE).
However, at the hearing Mr Kumar candidly conceded that the particular social group asserted by this Ground was not expressly raised but nevertheless submitted that it did arise implicitly on the material which was before the Tribunal.
To establish that the Tribunal had a duty and was bound to consider a particular unarticulated claim, such a claim must be raised “squarely” on the material available to the Tribunal: NABE at 18-19 [58]. Further, the judgment that the Tribunal has failed to consider a claim not expressly advanced is not lightly to be made: NABE at 22 [68]. In CPE15 v Minister for Immigration [2017] FCA 591 at [40] Mortimer J said:
[40]The kind of argument which must have been articulated by an applicant in order for the Tribunal to exceed its jurisdiction by failing to consider it was described by Griffiths J in SZSSC v Minister for Immigration [2014] 317 ALR 365 as “a substantial and clearly articulated argument”. In other words, the Tribunal as the decision-maker on the merits must have clearly been put on notice by an applicant of a contention, submission or argument the applicant wished to make in support of a decision in her or his favour on the review. Unless the argument has been “clearly articulated”, the Tribunal would not be put on notice. Unless the argument is “substantial”, a reviewing court cannot be confident or sufficiently confident that the Tribunal’s failure to deal with the argument may have affected or been material to the conclusion it reached. Ultimately the argument put by an applicant in these circumstances must be characterised as capable of affecting the formation of the state of satisfaction required by s 65 of the Migration Act. If it is not so capable, then the Tribunal will not exceed or fail to exercise its jurisdiction in not considering such an argument.
The first thing to be said in relation to this ground is that at no point either before the Delegate or before the Tribunal did the Applicant claim to be a Fijian lawyer regularly or consistently representing SDL Party executives in legal proceedings in Fiji. Indeed, as recorded by the Tribunal at [28], the Applicant denied ever having acted on behalf of anyone else opposed to the Fijian Government other than for Mr Vivian. At TP 26.5-15 of the transcript of the Tribunal hearing the following exchange is recorded:
Tribunal: As a lawyer, I understand you claim that you’ve had difficulties because you were acting on behalf of Mr Vivian in your case. Is that correct?
Applicant: Yes, sir.
Tribunal:Have you been involved in working on legal cases for any other people from the SDL or any other people who are advocating for human rights or opposed to the Fijian military government?
Applicant: It was only that case.
The only legal case ever referred to by the Applicant was the case in Fiji in which he claimed to have appeared for his nephew, Mr Vivian, who he also claimed to have been a former (not a current) secretary / campaign director of the SDL. The Applicant never claimed to have ever provided legal services of any kind to any other member or executive of the SDL, current or non-current. In these circumstances in my view the Tribunal did not fail in its statutory duty to consider the Applicants claims to protection by not considering the particular social group of “Fijian lawyers who represented SDL Party executives”. The Tribunal cannot be legitimately criticised for not considering a particular social group not expressly articulated and of which the Applicant disavowed being a member.
In any event, in my view the Tribunal, when considering the particular social group of “lawyers in Fiji”, made a finding of greater generality that subsumed and encompassed the asserted particular social group of “Fijian lawyers who represented SDL Party executives” when it found at [73] of its Decision Record as follows:
[73] …I find that only those lawyers in Fiji who are actively critical of the Fijian government or military face a risk of harm…
Of course, it is not always the case that considering a greater class necessarily deals with a lesser and more confined class: SZBJH v Minister for Immigration [2008] FCA 501 at [35]-[42] per Lander J. However in the circumstance of this case I consider that the finding of the Tribunal at [73] of the Decision Record does comprehend the particular social group asserted by this Ground.
In my view Ground 2 fails to establish that the decision of the Tribunal is affected by jurisdictional error.
Ground 3
Ground 3 was also refined by Mr Kumar at the hearing so that it is to be understood as asserting that the Tribunal made a different finding from the Delegate but failed to give to the Applicant a sufficient warning of that possible different finding as was required, so it was submitted, by the decision of the High Court of Australia in SZBEL v Minister for Immigration [2006] 228 CLR 152 (SZBEL). Ground 3 in this refined form was put without any reference to documentary evidence.
The finding of the Tribunal of which complaint is made relates to the Applicant’s representation as a lawyer of Mr Vivian.
In this regard the Delegate had accepted the Applicant’s claim that he had represented Mr Vivian as a lawyer on the one and only occasion he had claimed, namely in the Suva Magistrates Court on 15 November 2011, but had then withdrawn from the case.
At the Tribunal hearing the Applicant claimed to have appeared as lawyer for Mr Vivian in the High Court and in the Suva Magistrates Court on approximately four occasions during 2011, with the last appearance being in approximately November 2011: see [17] above or alternatively October, 2011: see [18] above.
Then, as recorded in [39] of its Decision Record, the Tribunal at
TP 39.21-30 advised the Applicant that it had a number of concerns about whether or not the Applicant had been telling the truth about some of the things which he had said at the hearing and that the Tribunal wanted to put these concerns to the Applicant in a formal way.
At TP 42.35-TP 43.31 the Tribunal raised certain differences between what the Applicant had told the Tribunal at the hearing and what he had said earlier to the Delegate including that he had told the Delegate that he had last gone to court for Mr Vivian on 15 November 2011 but had told the Tribunal that he had stopped acting for Mr Vivian in October 2011. The transcript of hearing also confirms, as the Tribunal records in [39] of its Decision Record, that the Applicant was given the opportunity of an adjournment to consider his response to the information put to him by the Tribunal but that he had indicated that he wanted to respond immediately. The Applicant then indicated that he had documentary evidence proving that he had acted on behalf of Mr Vivian and that he had documents of the trial of Mr Vivian’s case. At TP 49.11-17 the Tribunal indicated to the Applicant that its decision would be delayed for two weeks to allow the Applicant to submit documents to the Tribunal.
At [48] of its Decision Record the Tribunal identified the documents sent to it by the Applicant on 20 June 2013. It was on the basis of the document noted at [48(ii)] of its Decision Record, being an online report of a judgment of the High Court made on 17 August 2010, that the Tribunal at [61]-[62] and [63(iv)] of its Decision Record accepted that the Applicant acted on behalf of Mr Vivian at a hearing before the High Court in August 2010. Then at [64(viii)] the Tribunal did not accept that the Applicant acted for Mr Vivian during 2011 or at any time other than at the hearing before the High Court in August 2010.
To sum up this issue, the Delegate had accepted the Applicant’s claim that he had appeared for Mr Vivian once and only on 15 November 2011 in the Suva Magistrates Court whereas the Tribunal found that the Applicant had only appeared once for Mr Vivian in the High Court in August 2010. In my view the circumstances here bear no resemblance to those considered by the High Court of Australia in SZBEL.
First, the evidence given by the Applicant to the Delegate differed from the evidence that he gave to the Tribunal. He told the Delegate that he had appeared as lawyer for Mr Vivian only on 15 November 2011 in Suva Magistrates Court. However, he told the Tribunal that he had appeared for Mr Vivian in the High Court and subsequently on four occasions in the Suva Magistrates Court. The Tribunal challenged him in relation to this body of evidence and the Applicant in response subsequently produced a document to the Tribunal which it accepted as establishing that he appeared on behalf of the Mr Vivian before the High Court in August 2010. Accordingly, both the Delegate and the Tribunal accepted that the Applicant had appeared on one occasion as a lawyer for Mr Vivian in a court of law and the only disconformities between the findings of the Delegate and the findings of the Tribunal were the date of the Applicant’s appearance in court and the identity of the court. However, I do not consider that either the date of the Applicant’s appearance in Court or the identity of the court were in the circumstances of this case a “determinative”, “dispositive” or “critical” issue.
Second, the Tribunal in its warning to the Applicant at the hearing expressly adverted to and identified its credibility concerns relating to his evidence to the Delegate and his present evidence to the Tribunal concerning the details of the Applicant’s claimed appearances in court for Mr Vivian. It is clear that the Applicant realised that his credibility in this connection was under scrutiny and it was for that reason that he forwarded the documentation concerning court appearances for Mr Vivian to the Tribunal after the hearing had concluded. It was on the basis of the Applicant’s own proffered documentation that the Tribunal came to the factual finding that the Applicant had appeared in court for Mr Vivian, but only in the High Court in August 2010. I do not consider that in so acting the Tribunal failed to accord the Applicant procedural fairness leading to any practical injustice and Ground 3 thus fails.
Ground 4
As I understood Mr Kumar’s submissions at the hearing, this Ground is related to and dependent upon the success of Ground 2.
Mr Kumar submitted that on the basis that the Tribunal should have considered the particular social group being “Fijian lawyers who represented SDL Party executives” the Tribunal failed to consider country information relevant and responsive to that particular social group. Rather, the Tribunal only had regard to country information indicating that there were no reports of lawyers representing SDL members being mistreated or harmed by the Fijian authorities since 2009 as distinct from SDL executives.
I have already found that the Tribunal was not bound to consider the particular social group being “Fijian lawyers who represented SDL Party executives”. It therefore follows that jurisdictional error would not be established by the Tribunal failing to consider country information relating to that specific particular social group. Further, generally the choice and selection of country information and the weight given to such information is a factual matter for the Tribunal and is not an issue for review in this Court: see SZLYT v Minister for Immigration and Citizenship [2009] FCA 76 at [20] per Collier J and WZAVX v Minister for Immigration and Border Protection [2016] FCA 411 at [32] per Siopis J.
To similar effect in MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154 at 159 [19] the Full Court of the Federal Court comprised of Tracey, Murphy and Mortimer JJ approved the statement of law of the primary Judge below as follows:
It also noted (at [21]) it was a matter for the Tribunal what country information it obtained and what weight it gave that country information, referring to the reasons of the Full Court of this Court in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11].
In its Decision Record the Tribunal identified the country information to which it had regard in [105] of its Decision Record. None of that country information is in evidence before me although its content is indicated by the references to it in [67], [69]-[73] of the Decision Record.
In these circumstances I can find no evidence that the Tribunal committed jurisdictional error by making a finding not supported by the country evidence to which it had regard.
Accordingly, this Ground also fails.
Conclusion
The Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Amended Application filed in this Court on 29 August 2014 is to be dismissed.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 20 September 2017
0
8
0