SZOYZ v Minister for Immigration and Citizenship

REFUGEE REVIEW TRIBUNAL 5 The Tribunal was not satisfied that the appellants left Fiji due to fear of persecution. The Tribunal was mindful of inconsistencies, contradictions and implausible claims in the first appellant's evidence. In particular the first appellant's claims varied regarding a further claim that she was evicted from the family home in January 2010. There were also significant inconsistencies in the appellant's account of the incident in May 2007 and between the evidence of the first appellant and her husband concerning the incident in 2008. 6 The Tribunal noted that the first appellant had stayed in Fiji for three years after the incident in May 2007, which tended to undermine her claim of fear of persecution. The Tribunal did not accept that the first appellant or her husband feared harm from the Fijian military and that there was a real chance the appellants would suffer harm if they returned to Fiji.

FEDERAL MAGISTRATES COURT 7 On 2 February 2011 the appellants sought judicial review of the Tribunal's decision in the Federal Magistrates Court. The appellants' application for review contained a number of claims which were summarised by his Honour as follows: 1. Bias or the apprehension of bias on the part of the Tribunal. 2. The appellants did not receive a fair hearing. 3. A disagreement with factual findings made by the Tribunal. 4. An allegation that the pastor was biased. 5. Complaints about the interview with the delegate. 6. A failure to consider "effective state protection". 7. A failure to consider claims. 8. The Tribunal decision was illogical or irrational and was affected by Wednesbury unreasonableness. 9. The Tribunal failed to consider that the first appellant belonged to a social group. 8 In a lengthy and detailed decision, the Federal Magistrate considered the determination and reasons of the Tribunal and the appellants' claims before him, and found, in summary, as follows: 1. The first appellant claimed that the Tribunal did not explain why it found against her. In addressing this claim, the Federal Magistrate noted that the Tribunal explained why it dismissed the application, namely inconsistencies, implausibility, and contradictions in the appellants' evidence. As such this claim did not reveal a jurisdictional error. 2. The first appellant complained that the Tribunal relied on information from her husband (a statement handed up to the Tribunal) and not her own evidence. The first appellant complained that the document was handed up in error, and that the Tribunal ought not have taken it into account. The Federal Magistrate noted that that the Tribunal had, in turn, considered this claim, but that the Tribunal had found that the purpose of the first appellant in providing the document was to corroborate her claims, and by inference it was not given in error. The Federal Magistrate considered that this finding was open to the Tribunal on the material before it, and in the circumstances the Tribunal was entitled to rely on, or consider, the contents of the document. 3. The first appellant did not put forward any evidence regarding her claim that the Tribunal was biased. Nothing in the Tribunal decision indicated bias. The Federal Magistrate held there was no breach of s 425 of the Migration Act 1958 (Cth) (the Act) as the Tribunal gave the first appellant the opportunity to respond to information. The Tribunal found the first appellant's claims were not credible thus there was no obligation for the Tribunal to consider the adequacy of state protection. 4. Regarding the appellant's complaint that the interpreter at the interview with the delegate was not adequate, the Federal Magistrate found that this was, in any case, cured by the Tribunal decision. 5. The Federal Magistrate also considered that there was no evidence of unreasonableness, and that the first appellant's claims in this regard misunderstood the Tribunals role.

APPEAL TO THIS COURT 9 On 21 April 2011 the appellants filed a Notice of Appeal in this Court. The grounds of appeal extend over several pages, and contain detail in the nature of submissions. The grounds of appeal appear identical to those before his Honour below. It is convenient to summarise them as follows: 1. The Tribunal's decision was not a privative clause decision within the meaning of s 474 of the Act. 2. The Tribunal decision contained jurisdictional and procedural errors in that the Tribunal was biased against the appellants and they did not receive a fair hearing. 3. The Tribunal did not see the merits of the appellants' case 4. The basic application was prepared by a third party without the knowledge of the true history of the appellants. The Tribunal hearing circumvented the hearing process and did not go through the facts presented by the appellants in their statement of facts. 5. It is the responsibility of the Tribunal to focus on questions that were not initially placed by the third party before the Tribunal. 6. There was no interpreter at the departmental interview, which resulted in a poor understanding of the appellants' case. 7. Ground 7 was, in essence, a repetition of grounds 4 and 5. 8. The Tribunal is guilty of procedural unfairness for reasons substantially put in grounds 4 and 5. 9. The Tribunal was biased. 10. Ground 10 is, in essence, a repetition of ground 9. 11. Ground 11 is, in essence, a repetition of ground 9. 12. The Tribunal erred in failing to properly consider post-hearing material put to it by the first appellant. 13. The Tribunal ought give the benefit of the doubt to the asylum seekers, who are unable to substantiate all of their claims. 14. The Tribunal breached ss 415, 416 and 425. 15. The Tribunal did not make any finding relating to effective state protection, something the appellants raised. 16. In not determining her claims under the definition of race, religion and membership of a particular social group the Tribunal denied the appellant procedural fairness. 17. The Tribunals decision was illogical or manifestly unreasonable. 18. The Tribunal failed to scrutinize the claim, and was unreasonable. 19. Ground 19 is, in essence, a repetition of grounds 17 and 18. 20. Ground 20 is, in essence, a repetition of grounds 17 and 18. 21. The Tribunal did not identify or consider the appellant's social group, namely, Indo Fijian. 22. The Tribunal failed to consider the appellants' claim of well-founded fear of persecution. 23. All issues raised by evidence must be considered by the Tribunal. 24. Failure by the Tribunal to deal with a claim raised by the evidence can constitute a failure of procedure fairness. 10 In order to properly address these grounds, it is convenient to further summarise them under the following categories: 1. The decision was not a privative clause decision (ground 1). 2. Bias (grounds 2, 9, 10 and 11). 3. Merits review (ground 3). 4. Failure of the Tribunal to accord the appellants a fair hearing (grounds 4, 5, 6, 7, 8, and 13). 5. Sections 415, 416 and 425 (ground 14). 6. Failure of the Tribunal to properly address issues raised by the appellants (grounds 12, 15, 16, 21, 22, 23 and 24). 7. Unreasonableness and illogicality (grounds 17, 18, 19 and 20). 11 None of the grounds of appeal refer to the decision of the Federal Magistrate, or any appealable errors made by his Honour in respect of that decision. There is substantial overlap, however, between the grounds of review before his Honour and the grounds of appeal before this Court.

THE HEARING 12 At the hearing of the appeal, the appellants were self-represented. The Minister was represented by Ms Clegg of Counsel. 13 The appellants provided written submissions and made oral submissions at the hearing. Those written submissions of the appellants in many ways duplicated the grounds of appeal. In Court yesterday the first appellant appeared unrepresented, and indicated that she also spoke on behalf of the other appellants, who are her children. The first appellant submitted, in summary, that: the Tribunal member approached the case on the basis that the first appellant was not telling the truth; the only evidence the first appellant had was the Fijian police report, which the Tribunal member disregarded; and the Tribunal did not take into account evidence pertaining to psychological trauma experienced by one of the appellants. 14 I turn now to the grounds of appeal raised by the appellants in this Court.

The decision was not a privative clause decision (ground 1) 15 The decision of the Tribunal in this case was clearly a privative clause decision within the meaning of s 474 of the Act. The only basis upon which an appeal lies from a privative clause decision within the meaning of s 474 is on the basis of jurisdictional error of the Tribunal: S157/2002 v Commonwealth (2003) 211 CLR 476. 16 This ground of appeal cannot be sustained.

Bias (grounds 2, 9, 10, 11) 17 An allegation of apprehension of bias is a serious matter which must be specifically pleaded: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69]. In summary, the appellant is required to establish that a fair minded lay observer might reasonably apprehend that the decision maker might not bring an impartial and unprejudiced mind to the resolution of the question that the Tribunal is required to consider: Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138 at [14]. 18 Bias is a serious allegation involving personal fault on the part of the decision maker. It must be clearly articulated and proved by admissible evidence. It is rare for a Court to find that an administrative decision maker acted in bad faith, especially where the only thing said to be in support of this is the decision record: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at 756. 19 In the absence of any evidence as to the conduct of the Tribunal at the hearing or otherwise, no bias should be inferred solely from factual findings that were open on the material before the Tribunal: Jia Legeng at 519 and 531-532. 20 In Court yesterday the first appellant submitted that the Tribunal member approached the case with the preconceived view that the facts presented by her were untrue. The first appellant submitted that this was clear from, for example, the body language of the Tribunal member. 21 In the absence of a transcript the only material upon which the Court can form a view is the reasons for decision of the Tribunal. The Federal Magistrate also formed this view. No evidence has been produced to support a finding of either bias or reasonable apprehension of bias. More particularly, the extensive and detailed consideration of the appellants' case by the Tribunal suggests that the Tribunal member was not biased, but rather genuinely and impartially appraised and determined the appellants' claims. 22 Grounds of appeal 2, 9, 10 and 11 are not substantiated.

Merits Review (ground 3) 23 The Court cannot engage in review of the merits of the appellant's claims: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]. Weight given by the Tribunal to evidence before it, both oral evidence and documentary, is a matter for the Tribunal as an incident of its role as the arbiter of fact: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. 24 To the extent that the Tribunal was not persuaded by the facts presented by the appellant that they were not genuine refugees, that is a matter for the Tribunal. 25 Ground of appeal 3 is not substantiated.

Failure of the Tribunal to accord the appellants a fair hearing (grounds 4, 5, 6, 7, 8, and 13) 26 The appellants complain, inter alia, that their initial application was prepared by Pastor Moape without knowledge of the true history of the appellants, that the Pastor was biased in favour of the Fijian community, and that the Tribunal's decision was tainted by the bias of the Pastor. The appellants claim further that the Tribunal's responsibility was to focus on issues "not initially placed by the Pastor". The appellants also claim that there was no interpreter at the Departmental interview. Finally, the appellants claim that they should have received the benefit of doubt by the Tribunal. 27 Issues raised in relation to the preparation of the application by Pastor Moape were addressed by the Federal Magistrate in his decision, in particular at [53]-[63]. The Federal Magistrate observed, inter alia, that no allegation of bias of the Pastor was made at the hearing, and the complaint that the Pastor was "biased" does not assist the applicant in revealing error on the part of the Tribunal. In my view no error is revealed by this approach of the Federal Magistrate. 28 The Federal Magistrate also observed in his decision that the Tribunal's account of the proceedings demonstrates that the Tribunal asked very specific questions about the applicant's claims (at [87]). To that extent, it is clear that the Tribunal gave the appellants every opportunity to present their case and deal with concerns the Tribunal had in respect of their claims. 29 In respect of the claim of the appellants that they had no interpreter at the Departmental interview - it is clear that such a deficiency could be remedied before the Tribunal. Indeed, as is clear from the Tribunal's reasons for decision, the first appellant provided most of her evidence in English at the Tribunal hearing where she was assisted when necessary by a Hindi interpreter (at Tribunal record of decision [44]). Even if no interpreter was provided at the Departmental interview, as his Honour below observed, it would provide no ground for appeal in this case: Yilmaz v Minister for Immigration and Multicultural Affairs [2000] 100 FCR 495 at [92]-[96], Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] 143 FCR 314. 30 Further, while the benefit of doubtful facts must be given to an applicant for refugee status (SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129 at [39]), this should not lead to an uncritical acceptance of any and all allegations made by appellants (cf Beaumont J accepted in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451). 31 Finally, I note that the Tribunal member specifically refers to the police report in the reasons for decision (for example, at [64], [65], [87] and [88]), and the first appellant's claims concerning the psychological trauma experienced by her daughter (at [86] and [89]), contrary to the oral submissions of the first appellant at the hearing. 32 In my view grounds of appeal 4, 5, 6, 7, 8, and 13 are not substantiated.

Sections 415, 416 and 425 (ground 14) 33 The appellants have not particularised in their claim that ss 415, 416 and 425 of the Act have been breached. I note that the Federal Magistrate addressed the appellant's complaint concerning s 425 in that Court. 34 In the absence of particularisation the appellants' complaint in ground of appeal 14 concerning ss 415, 416 and 425 is not made out.

Failure of the Tribunal to properly address issues raised by the appellants (grounds 12, 15, 16, 21, 22, 23 and 24) 35 In my view these grounds of appeal are not sustainable. In particular: In ground 12 the appellants appear to be complaining about the failure of the Tribunal to consider material provided by them after the hearing. The Tribunal actually referred to a "post hearing statutory declaration provided by the applicant" in [87] of the Tribunal's reasons for decision. To that extent there is evidence, contrary to the claim of the appellants, that the Tribunal did take this evidence into account. In relation to ground 15 and the appellants' claim that the Tribunal failed to make any findings in relation to effective state protection, the Federal Magistrate correctly states at [77] that the Tribunal did not need to make such findings and that the ground is misconceived. Ground 16 is general and vague, and has no merit. I also note (and agree with) the observation of his Honour below at [85] that "nowhere in the course of her application for a protection visa or the subsequent application for review did the [first appellant] explain how her race and religion were factors in her fear". In relation to ground 21, the Federal Magistrate observed: As to membership of a particular social group, at best the claim was that the applicant's husband was perceived to be a member of some undefined group, which had the characteristic of including businessmen and critics of the regime in Fiji. The Tribunal expressly rejected that the applicant's husband was targeted for this reason ([88] at CB 142). In this ground of appeal the first appellant appears to be claiming that, in fact, it is her social group which was relevant before the Tribunal, although the social group also appears to be the same as that to which his Honour referred. However it is clear from the decision of the Tribunal that it was not satisfied that the appellants or the first appellant's husband were suspected of being critics of the current regime in Fiji, or that the first appellant's husband was detained or assaulted, or that the appellants were constantly harassed, threatened and evicted. The detailed and extensive consideration by the Tribunal of the appellants' claims demonstrates that ground 22 has no merit. Grounds 23 and 24 are meaningless in their terms. 36 Grounds of appeal 12, 15, 16, 21, 22, 23 and 24 have no merit.

Unreasonableness and illogicality (grounds 17, 18, 19 and 20) 37 In his reasons for decision the Federal Magistrate said as follows: 80. The further complaint that the Tribunal's decision was illogical and unreasonable in the Wednesbury sense can only be seen in the circumstances as a disagreement with the Tribunal's conclusion. It again misunderstands the Tribunal's reasoning and how it reached its conclusion. … 82. Contrary to this complaint, the Tribunal did consider the applicant's claims against the relevant Convention grounds. The complaint does not say how the Tribunal failed to do this. The Tribunal's decision record reveals that the Tribunal took into account the applicant's claims to fear persecution from the Fijian military on the basis of her race, political opinion and her husband's membership of a particular social group… 83. The Tribunal comprehensively rejected the applicant's factual basis for harm feared. In particular it rejected her claim to have suffered harm from the military in Fiji. The Tribunal's finding, in particular, that the applicant did not leave Fiji because of a fear of persecution for any Convention reason and that it was therefore not satisfied that they had a well-founded fear if they were to return was, in the circumstances, a plain rejection of her claim to fear harm on race, religion or particular social group grounds. 38 No error is revealed by this reasoning. Rather, it comprehensively answers the appellant's grounds of appeal concerning alleged unreasonableness and illogicality of the decision of the Tribunal. 39 In my view grounds of appeal 17, 18, 19 and 20 have no merit.

CONCLUSION 40 A key element of the appellants' complaint is that the Tribunal member did not accept their version of events in Fiji, in particular in light of apparent inconsistencies in their evidence. 41 In my view the present of inconsistencies in evidence is not, in itself, determinative of the truth or otherwise of evidence given. Presenting a case, unrepresented, to any Tribunal is a daunting matter for persons who are not legally trained. This is particularly the case where English is not one's first language. Further, in circumstances where evidence is given in relation to frightening events, it is not surprising that details of actual events, for example the precise time and number of people involved, can be confused. However factual findings, including issues of credibility of evidence, are matters for the Tribunal. As I explained to the first appellant at the commencement of the hearing, the power of the Court in relation to cases such as these is limited. No appealable error in respect of the decision of the Federal Magistrate has been revealed, nor has jurisdictional error attendant on the decision of the Tribunal been demonstrated. 42 The appeal is dismissed with costs. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.