SZGLL and Another v. Minister for Immigration and Another

"Ground 1 - Whether the Tribunal failed to carry out its statutory duty

Limb (1)(a) Whether the Tribunal failed to consider all integers of the applicants’ claims, being the separate claims by the second applicant.

[20] ... the applicant argues that, although the second applicant did not make separate claims in her primary application, she did raise fears, separate from him, at the Tribunal’s hearing.

[34] The Tribunal in its Findings and Reasons did not specifically refer to the above-quoted statement of the second applicant regarding her fear of assault, or its summary of that evidence. However, as observed by the Full Federal Court in WAEE v Minister of Immigration & Multicultural &Indigenous Affairs [2003] FCAFC 184: ""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 (at [46]).""

[35] The Tribunal in the present case made findings of “greater generality” in regard to the claims of physical harm to the second applicant, as well as the applicant, and possible fears in this regard if they returned to Fiji....

[36] I consider that it was open to the Tribunal on all the evidence and material before it to make adverse findings as to the credibility of the applicants and to assess each of their various claims concerning physical harm in that context. The Tribunal’s finding in this regard was a finding of fact par excellence, not open to review by this Court...

[37] Merely because the applicant disagrees with the Tribunal’s factual conclusions and its ultimate conclusion in this case does not amount to an error of law. Furthermore, there is no error of law, let alone jurisdictional error in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1998) 197 CLR 510 at 560 [137].

Limb (1)(b) Whether the Tribunal failed to consider all integers of the applicants’ claims, being the alleged denial of effective state protection.

[38] ... the applicant claimed, in a statement filed with the protection visa application, that the applicants were denied effective police protection following a break-in involving a robbery and assault. Also, at the Tribunal hearing the applicant stated that the police had failed to provide assistance in finding the perpetrators of a break-in and assault and had taken no action.

[40] The applicant now argues that the Tribunal failed to consider a separate question, namely whether the alleged inaction of the Police in response to the break-ins or alleged assault on the son, was due to the applicants’ race, religion, political opinion or membership of a particular social group.

[43] It is clear from [Minister for Immigration and Multicultural Affairs v Khawar (2002) HCA 14], that, in certain circumstances, persecution can take the form of inaction by state authorities in response to violence to a person where that inaction arises by reason of that person being a member of a particular social group.

[44] However, I do not consider that the Tribunal failed to make any findings of fact in relation to whether state protection was denied to the applicants for a Convention reason. The Tribunal did not expressly refer to the Police, but clearly considered, and reached a finding, that the rights of Indo-Fijians, which would include the applicants, are not being disregarded by state authorities.

[45] I do not consider that the Tribunal had to go further and make a specific finding in relation to the Police in upholding the rights of Indo-Fijians. As previously indicated, the Full Federal Court in WAEE v Minister of Immigration & Multicultural &Indigenous Affairs [2003] FCAFC 184 at [46]-[47] made it clear that a Tribunal is not obliged to refer to every piece of evidence and every contention made by an applicant in its written reasons. Rather, the Tribunal was entitled to make a finding of “greater generality” concerning whether the rights of the applicants, as Indo-Fijians, which would include the rights of state protection, would be disregarded by state authorities.

[46] In any event, it is well settled that the Tribunal’s choice and assessment of relevant country information is a purely factual matter for it: NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 216 ALR 1 at [8] per Gleeson J.

[47] I consider that, in the present case, the Tribunal properly considered all the country information before it and the conclusions that it reached were open to it on this material.

[48] I thus detect no jurisdictional error.

Limb 2 (b)(i) - Whether the Tribunal failed to properly advise the applicants of all the issues relevant to the review, by only advising the applicants that their applications would be assessed against ""the definition that’s written in front of you” [in determining whether they were refugees, which the applicant agued was not the definition as modified by s. 91R of the Migration Act 1958 (Cth)]

[57] The applicant’s complaint is that the Tribunal providing Exhibit 2 to the applicants without also providing them with the terms of s.91R of the Act, which deals with the concept of “persecution” for the purposes of applying Article 1A(2) of the Convention.

[58] The question is whether there was any procedural unfairness which militated against a fair hearing on the basis that the applicants were or could have been misled as to the full context of the relevant law and hence may have curtailed the ambit of their claims, or have been confused as to the scope of potentially relevant evidence that they might otherwise have proffered to the Tribunal. It must be borne in mind in this regard that “what is required by procedural fairness is a fair hearing, not a fair outcome”: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592.

[60] Indeed far from the applicants being uninformed as to the terms of s.91R and its relationship to Article 1A(2) of the Refugees Convention, they expressly referred to its significance in their response letter of 5 April 2007 to the Tribunal’s second s.424A letter.

[61] This response letter, signed by both applicants, was provided to the Tribunal after the hearing, but nonetheless before the Tribunal decision was signed, and is indicative of the state of knowledge of the applicants; that they were not misled by only being provided with Exhibit 2 at the Tribunal hearing; and that they firmly reminded the Tribunal that in the context of s.91R and Article 1A(2) of the Convention, they had exhaustively spelt out their claims. The relevant part of the applicants’ response states (CB 200), as follows: ""If the Tribunal has substantially no proof that there is no ‘real chance’ that the Applicants may in the reasonable future face ‘serious harm’, how could the Tribunal be satisfied that the applicants could return back to Fiji at the present juncture. Could the Tribunal be satisfied that it could satisfactorily overcome its ‘jurisdictional commitment’ in terms of sec. 91R of the Migration Act 1958? [emphasis original]""....

[62] No clearer statement could have been made by the applicants on the point. It demonstrates their clear understanding and knowledge of the role of s.91R. Furthermore, they raised no complaint with the Tribunal at this or any other stage of the proceedings to indicate that they had been misled, or were prejudiced in putting forward their claims, or were unfairly treated by any failure on the part of the Tribunal in this regard to provide them with the text of s.91R. In the absence of any evidence to the contrary, I thus detect no procedural unfairness on this basis and am satisfied that the applicants were provided with a fair hearing by the Tribunal.

[63] I also note, in this regard, that the applicants were clearly put on notice from the delegate's decision of 25 January 2005 (which was provided to the applicants as an attachment to the letter to them of 25 January 2005 (CB 36-37)) of the terms of ss.91R(1) and (2). Not only were subsections (1) and (2) set out in full, but their interrelationship with Article 1A(2) of the Convention, as well as the delegate’s relevant finding of fact pertinent to s.91R were also set out.

[67] The applicants were therefore clearly put on notice from the delegate’s decision of the relevance and importance of s.91R in the context of an expanded definition of ‘Persecution’ for the purposes of refugee status.

[68] For the reasons stated above, the second limb of Ground 1 of the further amended application is not made out.

Ground 2 - The Tribunal lacked the power or authority to carry out its review and make the decision.

[70] The applicant argues that where a decision is remitted, as here, by the Federal Court to be reconsidered according to law, the Tribunal must be reconstituted under s.422A of the Act.

[72] I consider that the applicant has misconstrued the word “reconstitution” in s.422A of the Act as having direct relevance to where a matter is “remitted” to the Tribunal for rehearing. The remittal of a matter to the Tribunal by a Court, following judicial review, does not mean that it demands a “reconstituted” Tribunal to conduct the review in the s.422A sense.

[73] I consider that a proper construction of s.422A demonstrates that the rationale of the provision is to empower the Principal Member to direct the removal of a member from a particular review in the interests of achieving the efficient conduct of the review pursuant to s.420(1) objectives, and, where the conditions in ss.(2) have been satisfied, to direct another member to “continue and finish the review”. Clearly, this relates to an on-going internal review situation and not to a case remitted to the Tribunal following external judicial review.

[74] Likewise, s.422 of the Act deals with the “reconstitution” of the Tribunal upon direction by the Principal Member where the presiding member becomes unavailable for the purposes of a particular review due to that member either stopping being a member, or for any reason, not being available for the purpose of the review at the place where the
review is being conducted. Again similar to s.422A, the directed incoming member is to continue to finish the review and may, for that purpose, have regard to any record of the proceedings of the review made by the Tribunal as previously constituted.

[75] Section 421 of the Act, however, provides a general power residing in the Principal Member to give a written direction to a member for the Tribunal to be constituted by that single member for the purpose of a particular review.

[77] When a case is remitted to the Tribunal, as in the present case, s.421 applies to the allocation of the member to constitute the Tribunal. This does not preclude the possible scenario that the member allocated to the review by the Principal Member following remittal may not later, during the conduct of the review, become the subject of a removal direction by the Principal Member under s.422A .

[79] In the present case, Exhibit 1, being a document entitled Constitution of the Refugee Review Tribunal for particular reviews, dated 5 December 2006, states that: ""I [Principal Member or delegate] constitute or reconstitute the Tribunal for the purposes of particular reviews in accordance with the schedules set out below.

The applicants’ proceedings are then classified under the heading: “Newly Constituted Cases” [emphases added].

Exhibit 2 is consistent with, and reinforces, the above analysis of the difference between a “newly constituted” Tribunal for a particular review (pursuant to s.421) applicable to the situation of remittal of a matter to the Tribunal, as opposed to an “already constituted” Tribunal (pursuant to s.422A and s.422 where an already allocated member is to be, or must be replaced).

[80] For the above reasons, I consider that the Tribunal was properly constituted pursuant to s.421 of the Act and that it had jurisdiction to hear and make the decision in this matter."