DTB21 v Minister for Immigration, Citizenship and Multicultural Affairs

BACKGROUND 3 The first appellant is a citizen of Fiji who arrived in Australia on 14 July 2006 as a holder of a Class TX, Subclass 771 (Transit) visa. The second appellant, who is the husband of the first appellant, arrived in Australia on 4 March 2006 as the holder of a Class TU, Subclass 573 (Student - Vocational and Educational Training Sector) visa (TU 573 visa). The four children of the first and second appellant first arrived in Australia on 10 March 2007 as dependants on the second appellant's TU 573 visa. 4 On 23 December 2011 the first appellant applied for a Protection Visa as the primary applicant with her spouse (the second appellant) and her four children (the third through sixth appellants) as members of the family unit. 5 On 13 July 2017, a delegate of the Minister found that the first appellant was not a person in respect of whom Australia had protection obligations under s 36 of the Migration Act 1958 (Cth) (Migration Act) and clause 866.221 of Schedule 2 to the Migration Regulations 1994 (Cth), and consequently refused to grant Protection Visas to the first appellant or the members of her family unit. On 11 August 2017 the appellants applied for a merits review of that decision in the Tribunal. The appellants were legally represented both at the Tribunal hearing and before the primary Judge. On 17 September 2021 the Tribunal affirmed the decision of the delegate to refuse the visa.

DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL 6 The reasons of the Tribunal can be summarised as follows. 7 After setting out relevant principles the Tribunal identified that the appellants must establish one of the alternative criteria in ss 36(2)(a), (aa), (b), or (c) of the Migration Act, namely that: the first appellant was a person in respect of whom Australia had protection obligations as a 'refugee' within the meaning of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugee (s 36(2)(a) Migration Act), or the first appellant met the criteria for the grant of a protection visa because the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of the first appellant being removed from Australia to a receiving country, there was a real risk he or she would suffer significant harm (s 36(2)(aa) Migration Act, otherwise known as referable to 'complementary protection' grounds), or the appellants were members of the same family unit as a non-citizen mentioned in ss 36(2)(a) or (aa) (ss 36(2)(b) and (c) Migration Act). 8 The Tribunal noted that, in accordance with the Ministerial Direction No. 84 made under s 499 of the Migration Act, the Tribunal was required to take into account the Refugee Law Guidelines and Complementary Protection Guidelines prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade, to the extent that material was relevant to the decision under consideration. 9 The first appellant claimed in summary as follows: She had grave fears for her life, and the lives of her husband and children, if she returned to Fiji. She claimed that she was a member of the particular social group 'women in Fiji', and that women in Fiji faced gender violence and bullying by some men in Fiji. Her husband had previously worked for a government Minister in Fiji. She left Fiji due to the presence of the military near her home. A guard had asked a family member to explain the meaning of the family gathering at their home. The first appellant feared returning to Fiji due to her imputed political opinion and her association through marriage and blood relation to two high profile Fijian politicians. Members of her extended family were living in Australia under protection visas. Her husband was an incognito financier and speech writer for former Ministers in Fiji. New claims raised at her protection visa interview and in post-interview submissions were as follows: Before she left Fiji, the first appellant was the secretary of a women's group which ran programs for women in a town on the main island of Fiji. In January 2007 two military officers directed her to change the focus of the programs. The first appellant was punched by a military officer who broke her nose. Her name is on a watch list in Fiji. The first appellant has been politically active and a strong supporter of the Social Democratic Liberal Party (SDL or SODELPA) in Fiji. 10 One of the appellants claimed that she had been diagnosed with a medical condition which prevented her working. 11 The Tribunal noted that the first appellant's evidence focused on the assault she claimed to have suffered at the hands of two army officers in about January 2007. The delegate found this was the most serious allegation in her evidence of persecution, and that there were credibility issues arising given that the first appellant had omitted reference to the incident in favour of far more equivocal examples in earlier evidence provided by her to the Tribunal. No medical evidence was produced to support her claim of a broken nose. 12 The Tribunal noted that in relation to the first appellant's imputed political opinion, she did not specify the nature of her work relating to her political activities other than that she had volunteered to cook for SDL party events held in Brisbane. 13 The first appellant claimed that she was on a watchlist as a known supporter of SDL and because the regime had an interest in the second appellant, however she had only heard this from another person and could not nominate the source of her information. 14 The Tribunal found that the evidence of the first appellant was overall vague and lacking in detail. The Tribunal found that the most relevant claim, namely that of being assaulted by army officers, lacked credibility. 15 The Tribunal then summarised in detail the evidence of the other appellants. It observed: 105. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant… 106. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility… 107. The Tribunal also accepts that 'if the applicant's account appears credible, [s]he should, unless there are good reasons to the contrary, be given the benefit of the doubt'…. However the Handbook also states (at para 203): The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts. 16 The Tribunal stated that it had carefully considered all of the appellants' claims, individually and cumulatively, and (in summary) found as follows: The Tribunal did not accept the principal claims of the first and second appellants of having suffered or witnessed torture or physical assaults at the hands of the Fijian security forces. The Tribunal noted that none of the other appellants or witnesses gave evidence relating to this claim and only stated knowledge of claimed incidents in the vaguest terms. The Tribunal found that both incidents described were late additions to the claims, and the explanations for not including them in earlier evidence were not plausible. In respect of evidence concerning women in Fiji, the Tribunal considered country information. The Tribunal noted that the country information was that, by far, the greatest exposure of women to violence was in a domestic or family relationship. The Tribunal concluded that the female applicants, in the absence of any suggestion that they feared for their safety at the hands of male family members, did not have a well-founded fear of being subjected to sexual violence or any other serious harm amounting to persecution on the basis of their gender or membership of a particular social group should they return to Fiji. In respect of political opinion, the Tribunal considered country information, and found: The Fiji Police Force was generally seen as capable and impartial, but had been involved in the adverse treatment of opposition activists. Individuals who were critical of the government in Fiji faced a low risk of torture. Torture in Fiji was a crime punishable by up to 25 years imprisonment under the Crimes Decree 2009 (Fiji). However, there were reports in 2019 of security forces abusing individuals, and a range of political activists claimed to have been tortured by security officials particularly during 2011. The case of the first and second appellants was that they had always been supporters of SDL, and while they were low-profile or incognito while living in Fiji they had been active supporters while living in Australia. The Tribunal said that the evidence supported a claim that they had been active in Australia, but that there was no independent support for the claims that they had been identified with any political movement in Fiji or had undertaken overt or covert political activity there. In relation to their claims that their political activities outside Fiji would expose them to the risk of persecution or serious harm should they return to Fiji, there was nothing in the evidence to satisfy the Tribunal that the appellants' profile was sufficiently high to attract any official interest. The Tribunal also concluded that the first and second appellants had not suffered harm in the past by reason of their actual or imputed political opinion. The appellants and various witnesses gave evidence to the effect that the watchlist was used as an instrument to suppress dissent, however could only point to general beliefs in the community or rumours in support of this assertion. The Tribunal concluded that it was likely there may be a degree of community confusion as to the purpose and effect of the "Stop Watch" list in Fiji, and that there may be paranoia as to its operation, however there was insufficient evidence to satisfy the Tribunal that any of the appellants were on such a list if it existed. The Tribunal noted that the second appellant was able to leave and re-enter Fiji on numerous occasions after the coup. In response to the claims of the appellants that they would suffer significant reduction in their standard of living and face difficulty in obtaining employment in Fiji, the Tribunal noted that Fiji was one of the most developed and connected of the Pacific Island economies, and that there was nothing to indicate that the appellants would not be able to access the social welfare system in Fiji as Fijian citizens. The Tribunal did not accept that any lower level of services offered in Fiji amounted to persecution or that there was a real risk that the appellants would suffer significant harm. The Tribunal was not satisfied that the appellants faced a risk of serious harm on return to Fiji by reason of membership of a particular family (the "X" family). In respect of health claims, there was nothing to indicate that the appellants would not be able to access the healthcare system in Fiji as Fijian citizens. 17 The Tribunal concluded, having considered all of the appellants' claims individually and cumulatively, all of the evidence, and the personal circumstances of each of the appellants, that there was no real chance that any of the appellants would suffer persecution as a consequence of their actual or imputed political opinion, or membership of a particular social group, or for any other reason, if they returned to Fiji now or in the reasonably foreseeable future. It followed that the appellants did not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion, or membership of a particular social group) should they return to Fiji. Accordingly, the Tribunal found that the appellants did not satisfy the criterion in s 36(2)(a) of the Migration Act. The Tribunal further found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the appellants being removed from Australia, there was a real risk that they would suffer significant harm for the purposes of s 36(2)(aa) of the Migration Act.

DECISION OF THE PRIMARY JUDGE 18 Before the primary Judge the appellants relied on one ground of review: 1. The Tribunal failed to consider the applicants' claim based on an imputed political opinion through their family members (cf, through their own direct political activities, or as members of this family simpliciter) 19 The appellants submitted before his Honour that the Tribunal's approach was too narrow, as the Tribunal did not take into account the clearly articulated argument advanced by and on behalf of the applicants, that the claimed imputed political opinion said to be held by the first appellant must be considered in the context of the first appellant being a member of a particular social group, namely her extended family. The appellants argued that their imputed political opinion claim had to be considered in an accumulated way, namely, what was the total or overall political profile of persons such as the appellants, given that they had familial connections to former Cabinet Ministers of Fiji who were political dissidents. The appellants argued that the Tribunal erred in that it treated the political opinion claim as based on the appellants' own political activities, while the familial connection claim was treated as a claim based on membership of a particular social group. 20 The primary Judge accepted at [15] that the appellants' imputed political opinion argument was clearly articulated. 21 In summary, the primary Judge noted that: the Tribunal carefully considered DFAT country information, including how some individuals had been the subject of abuse by members of the security forces in Fiji, and concluded that the first and second appellants had a very low profile, such that there was no real chance that they would suffer harm if they returned to Fiji; and the Tribunal rejected the first appellant's claim that she had been assaulted by two army officers in about January 2007, noting further that the first appellant only raised this issue ten years after she had arrived in Australia, that no mention of this alleged incident was made by the first appellant in her statutory declaration of 24 December 2011, and that no evidence of her having suffered a broken nose as claimed was ever produced. 22 The primary Judge continued: 20. Having considered the family context claims made on behalf of the applicants, both individually and cumulatively, the Tribunal then weighed up the evidence before it, including relevant country information, and came to the conclusion that the applicants did not have a well-founded fear of persecution as required under s. 5J of the Migration Act 1958 (the Act) so as to give them refugee status within the meaning of s. 5H of the Act. 21. The Tribunal also found that there were no substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Fiji that there was a real risk that they would suffer significant harm so as to afford to them the benefits of complimentary protection. 22. The Court finds that the Tribunal did not err in its deliberative processes after having considered the clearly articulated arguments which had been put to it. 23. Having found that the Tribunal appropriately considered the family context claim and the imputed political opinion claims, the question of materiality did not arise in the light of the Court's findings. The Tribunal's approach to its consideration of all of the evidence before it was detailed and sound. 24. The applicants have failed to establish jurisdictional error on the part of the Tribunal. 25. Ground 1 of the Amended Application for Review is without merit and is dismissed.

SUBMISSIONS IN THE APPEAL 23 Both the appellants and the respondent were represented in the appeal. 24 The ground of appeal before this Court corresponds with the ground of review before the primary Judge. In essence the appellable error alleged is that the primary Judge failed to accept that the decision of the Tribunal was affected by jurisdictional error. 25 The appellants submitted in summary as follows: The first appellant had made clearly articulated argument that she faced a real chance of persecution in Fiji by reason of her imputed political opinion. The imputation of that opinion arose: In part through her activities in Fiji and in Australia, and In part through her close familial relationship with other persons who themselves had substantial political profiles adverse to the government in Fiji, and who were on protection visas in Australia. The first appellant therefore made an additional argument based on the evidence of her relatives being in Australia on protection visas, namely that she was a member of a particular social group, being her extended family. It followed that this generated two claims, namely: "particular social group" claim (membership of her family); and a claim that those persons might cause her to experience an imputed political opinion adverse to the Fijian authorities. To the extent that the Tribunal framed the first and second appellants' claim as being solely based on their activities, this was wrong, as it excluded the imputation of an opinion derived from the identity of the first appellant's relatives (which in turn affected the assessment of her own activities). The Tribunal incorrectly treated the "political opinion claim" as not connected with the familial connection, but instead treated that claim as a stand-alone claim based on membership of a particular social group. The issue before the Court was narrow and was based on the case of Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; [2003] 197 ALR 389 (Dranichnikov). The Tribunal ignored one of the important elements of the claim, and it followed that the Tribunal made its decision on something less than the whole case of the appellants. The political activities undertaken by the appellants in Australia should not have been considered as the activities of ordinary Fijians, but as political activities by a dissident family. The Tribunal assessed the risk of those political activities as the activities of ordinary Fijian citizens. The Tribunal failed to address the issue that membership of the family was significant to the consideration of imputed political opinion. 26 The first respondent submitted, in summary, as follows: The appellants conceded that the Tribunal accurately summarised the claim, although they then claimed that the Tribunal failed to address the claim. That the Tribunal accurately addressed and summarised the claim weighs against a finding that the claim was overlooked. In its decision the Tribunal summarised the first appellant's family connection claim as being her fear of 32. "…returning to Fiji due to her imputed political opinion and her association through marriage and blood relation to two high profile Fijian politicians. She claims her [family member] is a former Cabinet Minister who is now residing in Australia under a protection visa and her husband's [family member] is a former Cabinet Minister. She claims both [family members] were implicated in undertaking seditious activities." The Tribunal engaged with the relevant evidence and considered all claims. Even if the claim was overlooked, it would not be material because the Tribunal was mindful of the underlying facts and considered the claims individually and cumulatively. Dranichnikov is distinguishable as it concerned the correct characterisation of a particular social group.

CONSIDERATION 27 The key issue before the Court is whether the Tribunal failed to respond to a substantial, clearly articulated argument relying on established facts, such that there was a failure to accord the appellants natural justice: Dranichnikov at [24] (Gummow and Callinan JJ, Hayne J agreeing) and [86]-[88] (Kirby J). In submissions in this appeal, the appellants characterised the claim with which the Tribunal failed to engage as, in summary, the first appellant faced a real chance of persecution in Fiji by reason of her imputed political opinion, which imputation arose: In part through her activities in Fiji and in Australia, and In part through her close familial relationship with other persons who themselves had substantial political profiles adverse to the government in Fiji, and who were on protection visas in Australia. 28 Accordingly, the appellants contended that the Tribunal failed to recognise the additional argument they made, namely that the first appellant was a member of a particular social group, being her extended family, and that her membership of that group might cause her to experience an imputed political opinion adverse to the Fijian authorities. 29 While it is plainly important that the Tribunal respond to a substantial, clearly articulated argument, it is also important that in reviewing the reasons of the Tribunal the Court adopt a beneficial construction, such that the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6, (1996) 185 CLR 259 at 271-272 (per Brennan CJ, Toohey, McHugh and Gummow JJ). 30 The primary Judge concluded that the Tribunal did consider the clearly articulated arguments put to it, and appropriately considered the "family context" claim. 31 At [32] of its reasons the Tribunal noted that the first appellant claimed to fear returning to Fiji due to her imputed political opinion and her association through marriage and blood relation to two Fijian politicians. 32 At [72]-[73] the Tribunal had regard to evidence of a family member of the first appellant relating to the first appellant's alleged political activity, involvement with the SDL, and alleged watch lists, and at [74] continued: This aspect of the evidence is discussed further below in the context of the relevant country information. However, I would observe that [family member's] supporting information is nebulous and lacking in specifics. The currency of his information is impossible to determine. It makes no reference to [the X family], despite them apparently being known to the source of the claim. I would also observe of [family member's] statement that, while he makes specific claims of violent assaults against two of his nephews, he makes no reference to any harm occasioned to [the first appellant] or to any other members of [the first appellant's] immediate family. At the hearing, he said that he was informed of [the first appellant's] assault, but only when asked. The only reference to [the first appellant's] political profile is unspecified support for [family member's] successful campaigns in …. general elections. No role is mentioned, other than her being part of the wider family's support. 33 At [76] the Tribunal had regard to evidence of witnesses who described membership of and support for the SDL in Australia, which may expose them and their family to mistreatment if they were to return to Fiji. The Tribunal noted the evidence that it would "be very dangerous for any members of the [appellants' family] to return to Fiji now…". 34 At [78] the Tribunal noted that the first appellant's imputed political opinion was also referable to evidence of the second appellant. 35 At [82] the Tribunal referred to the statutory declaration of one of the children of the first and second appellants, who claimed to be unwilling to return to Fiji "because of a fear of persecution of her family by the Fiji government, police and military…", and feared that she would be victimised because the authorities in Fiji would recognise her by her surname. 36 At [120] the Tribunal had regard to country information it had obtained from DFAT's latest country Information Report Fiji, including the following: Political opinion (actual or imputed) … 3.41 Credible sources reported an increase in self-censorship by members of civil society on political issues. Broad powers and harsh penalties under relevant decrees, and a relatively recent history of prosecutions mean that public figures continue to tread carefully in their expression of public opinion. In general, DFAT assesses that high-profile public figures, including the leaders of organisations, who may be seen to challenge the government's authority or undermine its legitimacy, are at risk of negative attention, such as arrest or detention. … 3.46 Overall, DFAT assesses that senior members of opposition political parties (those running for office) in Fiji are at a moderate risk of being monitored and intimidated by security services. They are at a low risk of being arbitrarily detained or otherwise harassed. The leaders of opposition political parties are at a moderate risk of being harassed and monitored, especially in the lead-up to elections. 37 At [122]-[124] the Tribunal considered evidence relating to the Fijian law relating to treatment of government critics, the claims of the appellants relating to the SDL, and their claims concerning political activities in Australia. Relevantly the Tribunal concluded at [124] that the first and second appellants had not suffered harm in the past by reason of their actual or imputed political opinions. The Tribunal continued: …I have also taken into account [evidence] that persons with a low political profile are at risk, but prefer the DFAT country information which is disinterested and more widely-sourced. 38 At [127] the Tribunal stated that there was insufficient evidence to satisfy it that any of the appellants were on a Fijian government watchlist, and noted in particular that the second appellant was able to leave and re-enter Fiji on numerous occasions without any difficulty. 39 Importantly at [134] the Tribunal found as follows: Member of [the X family] 134. The applicants' claims that they face a risk of serious harm on return to Fiji by reason of membership of [the X family] are closely tied to the claims made in respect of actual or imputed political opinion, or to those made by [the first appellant] of her membership of a particular social group. I have also considered the wider of the claim most clearly expressed in [family member's] statement, in which he says his extended family are all identified as being sympathetic to SODELPA and are therefore at risk of intimidation and harassment by the government. Having regard to the country information at paragraphs 120 and 122 above, and my conclusions at paragraph 124, and to the vagueness of [family member's] allegations in his statement, I cannot be satisfied that membership of [the X family] constitutes a particular social group for the purposes of the refugee criterion and, therefore, that the applicants have a well-founded fear of persecution on these grounds should they return to Fiji now or in the reasonably foreseeable future. (emphasis added) 40 I note that the Tribunal stated at various points in its reasons, including at [141], that it had considered all the claims of the appellants individually and cumulatively. I accept that the Tribunal did so. 41 In my view the Tribunal adequately engaged with the case as presented by the appellants. The Tribunal in detail examined all evidence before it, and the claims of the appellants referable to their activities, opinions, family connections and evidence. That possibly the Tribunal could have more clearly set out particular matters about the claim of the appellants concerning their alleged imputed political opinion, and exactly how that imputed opinion arose from their family connections, does not mean that the Tribunal did not read, identify, understand and evaluate the claims of the appellants (Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, (2022) 275 CLR 582 at [24]). 42 In my view the ground of appeal on which the appellants rely is not substantiated. The decision of the Tribunal is not affected by jurisdictional error. No error is evident in the decision of the primary Judge. 43 The appeal should be dismissed. Costs follow the event. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Acting Chief Justice Collier.

SCHEDULE OF PARTIES QUD 89 of 2023 Appellants Fourth Appellant: DTF21 Fifth Appellant: DTG21 Sixth Appellant: DTH21